INFOBAHN PANEL SEES WORLD THROUGH [..] BLINDERS

[Jim Miller]

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 at 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

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Anybody know where I can get a copy of the Lehman Panel report?

Jim_Miller at suite.com