May 20, 1996
Copyright, The Los Angeles Times, 1996
When it comes to its policies for the Internet, the Clinton administration is a major producer of paradoxes.
While positioning itself as the head cheerleader for the Internet as a revolutionary medium of democratic communication, the administration has repeatedly capitulated to lobbyists who want government regulation that serves their clients' interests instead of the public interest.
We've already seen the administration accommodate itself to the Telecommunications Reform Act of 1996, which passed in February -- an early version of which Vice President Al Gore once accurately called "abhorrent to the public interest." That new law is already accelerating massive concentration in the telecommunications industry, and, of course, it also contains the infamous Communications Decency Act, which outlaws "indecent" communications on the Internet and is universally reviled among network activists.
The latest assault on the character of the Internet is the National Information Infrastructure Copyright Protection Act of 1995, a House bill now under consideration. The bill is the legislative expression of a July 1994 "white paper" on intellectual property, prepared by the Commerce Department's Information Infrastructure Task Force.
The bill is sponsored by the chairman of the House Judiciary Subcommittee on Courts and Intellectual Property, Carlos Moorhead (R-Glendale). (This committee also includes other Southern California members: Sonny Bono, Xavier Becerra and Howard Berman. The text of the bill can be found at http://www.tulane.edu/~aau/HR2441.html)
This copyright bill is the latest attempt of "copyright owners" -- meaning publishers, film studios, software developers and recording companies, among others -- to quell their panic over digital technologies. Remember that film studios and TV networks tried to stop the sale of VCRs when they were introduced, failing to predict that home video rentals would all but rescue Hollywood.
More recently, a similar coalition has fought, unsuccessfully in the end, to prevent the introduction in the United States of recordable digital tape (DAT) and recordable erasable CDs. The Software Publishers' Assn. has also waged an intense campaign against software copying, even though consumers rejected copy protection schemes as annoying and cumbersome, and the software industry still thrived.
But the Internet is a whole new ballgame. Not only is the Internet commonly viewed as the future conduit for nearly all distribution of intellectual property "software" -- including movies, music, software, text, images, etc. -- but it is essentially one giant copying machine. By viewing material on the Internet, users are copying digital bits from a remote computer into their own computers.
If you are looking at this column on The Times' Web site, for example, you have copied copyrighted material into your computer's random access memory. The Times' freely offering the column online in effect grants permission for anyone to view it. But if the paper charged a subscription fee and you hadn't paid, the new copyright law would make viewing it a felony.
The proposed copyright law is described by its supporters as a "minor" change to existing law, a "clarification" of copyright for digital material. But public interest groups like the Digital Future Coalition -- which includes organizations such as the American Library Assn., the Alliance for Public Technologies and the Electronic Frontier Foundation -- have called the bill a "maximalist" approach to copyright, which upends the balance that copyright owners and users have enjoyed so far.
What would the bill do? Fundamentally, it would give copyright owners control over "transmission" of digital information for which they own the copyright, even if the user is storing the information temporarily in a computer's RAM.
The bill would criminalize any distribution of licensed material beyond its initial authorized use, which means that you couldn't send a paragraph of this column to a friend in an e-mail message without paying for use or risking prosecution. This is the equivalent of outlawing mothers' sending of newspaper clippings to their daughters in the mail.
The bill would make Internet service providers criminally liable for any unauthorized material that passes through their systems on its way to an end user, in effect turning system administrators, ISPs, long-distance carriers and local telephone exchange companies into Internet cops. The bill is opposed by America Online, CompuServe, Prodigy, all the regional Bell operating companies and the U.S. Telephone Association.
The bill envisions and would legislate the development of a digital copyright management information scheme that would be attached to copyrighted material like an electronic envelope and that would contain whatever information is necessary to identify the copyright holder. If these systems were made "smart" -- e.g., having the capability to "report back" to copyright owners -- media companies could use automated techniques to track down material on your hard disk, compromising privacy and security.
Supporters of the bill have united in a group called the Creative Incentive Coalition. (Times Mirror Co., which publishes this newspaper, is a member.) They argue that the Internet will never live up to its potential unless copyright holders can be assured of compensation for their contributions to cyberspace.
Because digital technologies make possible "perfect" copies of things such as movies, songs, newspapers, books and so on without any degradation in their quality over multiple copies, "piracy" of such material is considered a serious threat. The Software Publishers' Assn. estimates the software industry loses $15 billion a year from illegal software copying. The United States is even on the brink of a trade war with China over software piracy.
Public interest advocates say they have no objections to current copyright protections or even reforms that take into account new technologies. But they say any new law must include a clear reinforcement of the "fair use" doctrine, which allows limited use of copyrighted material in educational and some other situations; clear language that any enforcement be directed at commercial pirates, not unwitting individuals; and an end to liability for service providers.
The bill in Congress now, critics say, goes much too far. Combining the copyright law with the Communications Decency Act, the Internet's potential as a source of public education and free expression could be crippled. The Clinton administration, which has done so much to advertise itself as a group that "gets it" about new technologies, could instead turn out to be the executioner of the Internet's real promise.
Gary Chapman is director of the 21st Century Project at the University of Texas in Austin. His e-mail address is firstname.lastname@example.org
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