A recent fax from The Center for Strategic and International Studies' International Communications Studies and Political-Military Programs: topic: encryption wars on the global information highway: beyond the clipper chip battle. This introductory discussion will take place on July 14th, 1994, at CSIS, 4th floor conference room, 1800 K St., N.W., DC from 9:30am-12noon. Dr. Michael Nelson, Special Assistant, White House Office of Science and Technology, and Mr. Kent Walter, Counsel to the Deputy Attorney General, will lead off the morning, followed by diverse industry and expert views. Since this by invitation only, please RSVP to Craig Johnson by Monday, July 11 at either Fax: (202) 775-0898, or e-mail: csis-ics@clark.net. [Included with the fax was the following ILA report reproduced here with permission from the author. Is anyone on this list invited to the above mentioned meeting? - jm] -------------------------- What's Left Unsaid And Undone INFOBAHN PANEL SEES WORLD THROUGH NARROW COPYRIGHT BLINDERS Lehman Panel Leaves Later How To Deal With Other Issues The best way to understand the recently released government report on protecting intellectual property is to look at the credentials of its primary author: Bruce Lehman, patent commissioner. Don't be misled by his title. Lehman is a copyright lawyer and legislative aide by training. His report reflects these points of view: If there is an emerging problem, as the economy enters the digital age, when information can be quickly, easily, and secretly copied, then the solution is to tinker with the law. A patch here, and a new subsection there, and Humpty Dumpty will be put back together again. "We tried to fine tune the dials of public policy," says Lehman, who emphasizes that the report benefited from hundreds of sets of eyes, not his alone. The draft report was issued by a working group underneath the Clinton Administration's National Information Infrastructure Task Force. And while its recommendations on changes to copyright law received wide attention earlier this week, the report is only one arrow in a quiver to deal with the theft of intellectual property. Faith in the rule of law is a good thing, in other words, but it won't be enough. Just ask anyone who has watched his or her copyrighted work flung through the Internet in a seamless chain of infringement. Or a software company that discovers 300 copies of a program at a corporation and only one sale. The working group's recommendations by themselves won't break the chain any more than stiffer laws and penalties have cured the drug crisis. But there are other arrows to shoot. Next week, for example, a different wing of the NII task force will hold a public hearing on the "security, integrity, and reliability" of information that travels through digital networks. Yet another wing, headed by Arati Prabhakar, director of the National Institute of Standards and Technology, is at work on applications and technology. GOTTA START SOMEPLACE Nearly everyone (except those who don't believe in intellectual property) seems to think the law is a good place to start. "Lehman has done an excellent job bringing focus to this issue," says Henry Perritt, Jr., a professor at Villanova Law School, who nonetheless has concerns about some of the specific proposals. Among the major recommendations, which are all subject to change (Possible objections mentioned by critics are in parenthesis): It would be illegal to tamper with devices or methods used to protect copyrighted material. (What happens when the work is no longer subject to copyright? If it is held in a technological envelope that is unlawful to break, the work cannot enter the public domain, as other works do upon copyright expiration.) Transmissions that may be considered both a performance and a distribution, such as when a recipient listens to a recording as it is being downloaded, would be considered a distribution, if that was the transmission's primary purpose. (Would this give more protection to the creator than the consumer than now exists in the law?) Recipients of digital transmissions of copyrighted works would not have the freedom to redistribute the material. Normally, under the so-called "first sale doctrine," if Ted sells a book to Alice, she can then turn around and sell or rent that book to Fred. This recommendation would prohibit Alice from reselling that book, if it is in digital form. The theory is that in a digital environment Alice can keep the book and distribute it, thereby destroying Ted's market. (The first sale doctrine was meant to limit the copyright monopoly so that the holder of the copyright gives up control once he or she has obtained economic benefit. The proposal may unhinge that balance. If the prior proposal is a "look but don't touch" rule, this would be a "touch but don't sell" rule, says Perritt.) Recording artists and record companies would receive royalties on sound recordings that are transmitted digitally. It is an anomaly of existing law that sound recordings don't have a so-called "public performance" right, as do plays, dances, and movies. Without this change, consumers could simply download top-quality recordings from specialized digital services, bypassing the retail purchase. (The broadcasting industry will put its full lobbying force behind blocking this measure, arguing that airplay is a form of free publicity.) A conference will be held on how to preserve the "fair use" concept of copyright law under which consumers are allow to use small portions of copyrighted work without fear of infringement. As more information becomes available on line, the ability to browse through material in libraries and schools for free will be curtailed. It will be possible to meter every usage of a work, even those that heretofore were protected by fair use doctrine. (Some copyright holders feel that fair use developed only because the transactional costs of charging for small uses outweighed any remunerative benefit. If advanced metering systems reduce transactional costs, then why not charge for all uses?) BALANCING ACT Lehman calls these changes "very modest" and built upon practices proven in other areas. For example, it is already unlawful to tamper with the encryption devices that scramble cable signals. And computer software has an exemption from the first-sale doctrine. Otherwise, to use the prior analogy, Alice could rent out the software to Fred and his 15 best buddies, who would then produce perfect copies for their own use. At the same time, the working group tried to balance the interests of creators, by suggesting modifications in first-sale and distribution language, and consumers, by holding the fair use conference. After all, copyright law is meant to protect the works of creators for the overall benefit of society. Prior to becoming patent commissioner, Lehman was at Swidler & Berlin. He cut his teeth on the Hill as the chief legal advisor during the drafting of the 1976 Copyright Act and 1980 Computer Software Amendments. That experience, he says, shaped his belief in being responsive to all sides of a debate. "If I was the general counsel of McGraw Hill, I might be less inclined to hold a conference on fair use," Lehman said. Still, he recognizes that the law can only do so much. "The most you can expect out of the copyright system is to prevent hemorrhaging," Lehman said. "It cannot prevent leakage," such as casual pirating of software for home use. That function falls to the marketplace to develop technologies that can envelop copyrighted material so it can only be opened by rightful recipients and to educators, according to Lehman. While the working group did not delve seriously into technological solutions, it will sponsor a second conference on education. The conference will explore course work that can be used in schools and libraries. Just imagine: Intellectual Property Education 101. It's hard to envision the course being as popular as driver's ed. Agencies Participating In Intellectual Property Rights Working Group Advanced Research Projects Agency Commerce Department Council of Economic Advisors Energy Department General Services Administration Justice Department National Institute of Science and Technology National Library of Medicine National Science Foundation National Security Agency National Telecommunications and Information Administration Office of Consumer Affairs Office of Management and Budget Office of Science and Technology Policy Office of the U.S. Trade Representative Patent and Trademark Office State Department Treasury Department --- *********************************************************** Information Law Alert ||||||||| || |||| * a voorhees report * || || || || * * || || || || * 718-369-0906 * || || ||||||||| * voice * || || || || * 718-369-3250 * || || || || * fax * ||||||||| |||||||| || || markvoor@phantom.com* *********************************************************** 411 First St., Brooklyn, NY 11215-2507 July 8, 1994 ****************************************************** * PLEASE KEEP THIS BOX ATTACHED TO NEWSLETTER * ****************************************************** Information Law Alert (ISSN-1068-8129) is published 20 times a year by Voorhees Reports, 411 First Street, Brooklyn, NY 11215-2507. Subscription rates: E-mail subscriptions are available for $195 a year. $550 a year for print newsletter. For information, call 718-369-0906 or 800-369-4840, or fax 718-369-3250. E-mail address: markvoor@phantom.com. On line: Information Law Alert is available electronically to subscribers of NewsNet (800-952-0122); Dialog (800-334-2564); and Dow Jones News Retrieval (800-522-3567). E-mail subscriptions are also available through Counsel Connect (800-952-0122) under the Resources section. Back issues and bundles of stories are available at Marketplace.Com. Gopher to Marketplace.Com or use the URL http://marketplace.com. Copyright 1993 Mark Voorhees. Unauthorized duplication prohibited by law. ********************************************************* Anybody know where I can get a copy of the Lehman Panel report? Jim_Miller@suite.com