LIBRARY OF CONGRESS
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                  DOCKET NO. RM 9907
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               Thursday, May 4, 2000
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             The hearing in the above-entitled matter
 was held in Room 202, Adams Building, Library of
 Congress, 110 Second Street, S.E., Washington, D.C.,
 at 10:00 a.m.
      MARYBETH PETERS, Register of Copyrights
      DAVID CARSON, ESQ., General Counsel
      RACHEL GOSLINS, ESQ, Attorney Advisor
      CHARLOTTE DOUGLASS, ESQ., Principal Legal
      ROBERT KASUNIC, ESQ., Senior Attorney Advisor

                                                   PAGE 2


ARNOLD P. LUTZKER, American Library 
      Association of Research Libraries, American 
      Association of Law Libraries, Medical Library 
      Association, and Special Libraries Association 

JAMES G. NEAL, American Library Association 

JULIE E. COHEN, Georgetown University 

BERNARD SORKIN, Motion Picture Association of 
      America, Time Warner, Inc. 

RICHARD WEISGRAU, American Society of Media 
      photographers, Inc. 

VICTOR S. PERLMAN, American Society of Media 
      Photographers, Inc. 

STEVEN J. METALITZ, ESQ., Smith & Metalitz, 


                                                   PAGE 3



Presentation by Arnold P. Lutzker, Esq.       4

Presentation by James Neal                    18

Presentation by Julie Cohen                   24

Presentation by Bernard Sorkin                125

Presentation by Richard Weisgrau              135

                                                   PAGE 4
  1                  P-R-O-C-E-E-D-I-N-G-S
  2                                          (10:00 a.m.)
  3              MS. PETERS:  Good morning and welcome to
  4  the third and last day of the hearings in D.C. on
  5  the issue of exemptions to the anti-circumvention
  6  measure contained in Section 1201(a).
  7              This morning we have three witnesses.
  8  They're already seated at the witness table.  We
  9  have Arnie Lutzker, representing five library
 10  associations.  We have Jim Neal, who is also
 11  representing library associations, and Professor
 12  Julie Cohen from Georgetown University Law Center.
 13              So why don't we start with the order
 14  that it appears with you?  And you know that we will
 15  be posting the, if we can technologically, the
 16  comments on the Web or the testimony on the Web site
 17  if we can stream it, and we will as soon as we get
 18  the transcript be posting the transcript, and then
 19  later, when it's edited, we will replace it with the
 20  edited transcripts.
 21              So, Arnie, thank you.
 22              MR. LUTZKER:  Thank you.
 23              My name is Arnold Lutzker, and I served
 24  as Special Counsel to a consortium of five national
 25  library associations during negotiations of the
 26  Digital Millennium Copyright Act.

                                                   PAGE 5
  1              The purpose of my testimony today will
  2  be to offer my perspective on the development of the
  3  exemption in Section 1201(a)(1) and its meaning.
  4  First, let me give some background to my comments.
  5              I was one of the principal negotiators
  6  for the library and educational communications
  7  during consideration of Section 1201(a).  If we can
  8  return to those hectic days of yesteryear, and many
  9  of you on the panel were eyewitnesses to all of
 10  that, bills working through Congress to implement
 11  the WIPO treaties had several clear themes.
 12              Among them was the notion that copyright
 13  law was to be modified to fit the digital
 14  millennium, and that created certain things that
 15  needed to be preserved.  Foremost among the things
 16  that needed to be preserved in the view of libraries
 17  and educators were the various exemptions and
 18  limitations spelled out in current copyright law.
 19              For purposes of our discussions today,
 20  all of these limitations came simply to be known as
 21  ``fair use'', but in the more intense discussions and
 22  negotiations, fair use was the code phrase not just
 23  for Section 107, but for Sections 108, 109, 110, 121
 24  as well.
 25              Second, the bill as it was devised
 26  applied only to copyrighted works.  Public domain

                                                   PAGE 6
  1  works, government works, and unprotected databases
  2  were outside the scope of coverage.
  3              Indeed, regarding databases, as you
  4  know, a separate title of the DMCA dealt with
  5  databases, and it was deleted before final passage
  6  as part of the overall compromise to pass the
  7  legislation.
  8              Section 1201 was never intended as a
  9  back door to database protection.  As to public
 10  domain works, copyright term was also the subject of
 11  separate legislation and was adopted with a specific
 12  library and educational exception.  No change in the
 13  status of government works was achieved through the
 14  DMCA.
 15              Returning to fair use, you will recall
 16  that fair use was an issue in the OSP and database
 17  discussions as well as the 1201 anti-circumvention
 18  discussions.  If the libraries and educators --
 19  speaking on behalf of their institutions and also
 20  for the under represented ``user community''-- could
 21  have had their way, a fair use exception would have
 22  been absolute and clear in Section 1201 and
 23  elsewhere in the DMCA.
 24              However, they did not have their way.
 25  While the House Judiciary Committee managed to
 26  provide a very limited exception which appears in

                                                   PAGE 7
  1  Sections 1201(d) and 1204(b), these provisions were
  2  a far cry from what was desired.  Even Section
  3  1201(c)(1), which mentions fair use specifically,
  4  was not deemed an adequate safeguard for the
  5  concerns of libraries and educators with regard to
  6  access.
  7              Into this breach stepped the House
  8  Commerce Committee.  It was the Commerce Committee
  9  that took jurisdiction and addressed some of the
 10  issues left unresolved after an early version of the
 11  bill was passed by the Judiciary Committee.
 12              The fair use concerns of the libraries
 13  and educators in their broadest terms were
 14  considered by this legislative body.  In general,
 15  the members of the committee were more receptive
 16  than the Judiciary Committee colleagues to providing
 17  specific relief for libraries and educational
 18  concerns.
 19              Like any legislative process that
 20  results in final passage, the bill as drafted,
 21  revised, and passed by the Commerce Committee, and
 22  later amended in the Senate to place the Section
 23  1201 solution in your laps, is loaded with
 24  compromises and tensions.  That is, in part, why
 25  anyone dealing with this rulemaking task takes it on
 26  quite gingerly while scratching one's head.

                                                   PAGE 8
  1              Let me try to help clarify a few things
  2  and make a few declarative statements.  First and
  3  foremost, I believe the legislation as drafted,
  4  amended, and passed was intended to create a real
  5  solution to a real problem.  The Commerce Committee,
  6  which championed the rulemaking process, was
  7  convinced that the new statutory provisions in
  8  Section 1201, bolstered by strong civil remedies and
  9  criminal penalties, have the real potential to
 10  diminish fair use, the first sale doctrine, and
 11  other limitations greatly treasured in copyright law
 12  as creating balance in copyright policy.
 13              Even though in today's hot intellectual
 14  property marketplace individuals and companies are
 15  often both users and owners, these rights
 16  limitations help level the playing field between
 17  owners and users, facilitating just results in
 18  enforcement and in licensing negotiations.
 19              As you know, the rights limitations come
 20  into play without the consent of the copyright
 21  owner.  In recognition of the tension between rights
 22  and rights limitations, the rulemaking process you
 23  are undertaking was intended by Congress to be a
 24  real solution, not an illusory or unattainable dream
 25  to the difficulty of obtaining access to works
 26  solely for noninfringing purposes, where no access

                                                   PAGE 9
  1  permission has been given.
  2              And I would like to depart from my text
  3  and say not necessarily that no access permission
  4  has been given, but none is currently available.
  5  There may have been access permission given in the
  6  past and then it's expired, but now what do you do
  7  when you don't have a current access permission?
  8              Second, it flows from this precept that
  9  this is a real proceeding, that the burdens imposed
 10  on the public seeking an exception now and in the
 11  future are not insurmountable.  The section's
 12  drafters principally asked users to establish
 13  whether actual or likely adverse effects would occur
 14  if technical measures deny them access to works that
 15  are subject to fair use or other limitations.
 16              Third, I take exception with the view of
 17  those who see this burden as so substantial as to
 18  make it hard, if not impossible, to satisfy.  When
 19  an agency is instructed to deal with likelihood, as
 20  you are in this proceeding, it may not have
 21  verifiable facts before it.  Rather the agency is
 22  being asked to make a judgment based on collected
 23  information and experience.
 24              That does not mean, and I would not
 25  suggest in the alternative, that the burden is a
 26  sham.  The House Commerce committee report explained

                                                   PAGE 10
  1  the rulemaking proceeding should focus on distinct,
  2  verifiable, measurable impacts, should not be based
  3  on de minimis impacts, and will solicit input to
  4  consider a broad range of evidence of past or likely
  5  adverse impacts.
  6              By contrast, the House manager's report
  7  suggests the evidence must show substantial
  8  diminution of availability of works actually
  9  occurring, and that future impact should be assessed
 10  only in extraordinary circumstances.  The later
 11  standard would elevate the burden so high as to make
 12  this initial proceeding utterly unproductive.  There
 13  is no experience yet to indicate what the real
 14  effects on individuals actions will be when it
 15  becomes a crime under copyright law to bypass
 16  technology.
 17              Fourth, regarding the House manager's
 18  report, the Copyright Office should be wary of
 19  placing primary reliance on its interpretation of
 20  Section 1201.  That report goes well beyond the
 21  House Commerce Committee and the conference reports,
 22  which are the authoritative legislative sources for
 23  this provision.
 24              As the Supreme Court in National
 25  Association of Greeting Card Publishers v. United
 26  States Postal Service noted, citing another case,

                                                   PAGE 11
  1  Vaughn v. Rosen, the House manager's statements do
  2  not have the status of a conference report or even a
  3  report of a single House available to both houses.
  4              In Vaughn, the court noted that the
  5  House sponsors had been unable to achieve their
  6  objectives in legislation, and thus used floor
  7  statements to achieve their aims indirectly.  The
  8  opinion goes on to say that interpreting legislative
  9  history, a court should be ``wary'' of relying upon a
 10  House report or even statements of House sponsors
 11  where their views differ from those expressed in the
 12  Senate.  ``The content of the law must depend upon
 13  the intent of both Houses, not just one.''
 14              Here, of course, we also emphasize the
 15  House Commerce Committee, not the House Judiciary
 16  Committee, introduced this rulemaking.
 17              Fifth, what is this thing called "class
 18  of works" or "particular classes of works," and how
 19  are you to define it?  Section 1201 does not provide
 20  much guidance, nor does the limited legislative
 21  history.  Given the confusion which many
 22  commentators in this proceeding have stated about
 23  those phrases, as well as the meaning of other
 24  essential terms in this section, including
 25  circumvention and technological measures, there
 26  exists an unsettling ambiguity and vagueness in the

                                                   PAGE 12
  1  provision with criminal sanctions.
  2              This ambiguity raises grave concerns
  3  about the constitutional viability of this section.
  4  Since your charge is not to rewrite the statute but
  5  rather to oversee the rulemaking, I will only note
  6  this as a meaningful concern.
  7              The phrase "class of works" came out of
  8  negotiations in the Commerce Committee and, in my
  9  view, should stand in distinction from the phrase
 10  "category of works," which appears in the Copyright
 11  Act, Section 102.
 12              The notion behind class of works is that
 13  it cuts across categories.  After all, fair use and
 14  other limitations are not restricted to categories.
 15  As you know, however, the burden of establishing
 16  fair use and other limitations can vary according to
 17  the nature of the work and the uses made of it.
 18              Had the phrase "category of works" been
 19  used, there might have been some confusion that the
 20  exception should apply to literary works, for
 21  example, but not to sound recordings or audiovisual
 22  works.
 23              The notion that a particular class of
 24  works needed to be identified is rooted in the
 25  intention to narrow as appropriate the number of
 26  affected works.  If works protected by technological

                                                   PAGE 13
  1  measures are available as viable alternatives for
  2  fair use purposes, then measures protecting the
  3  digital version should not be circumvented.
  4              Thus, the Commerce Committee drafters
  5  understood that a particular class of works would,
  6  in all likelihood, be a narrow subset of one of the
  7  broad categories of works. In other words, not all
  8  literary works, only some.
  9              It sounds simple, but things have gotten
 10  more complicated.  Why?  Well, for one thing, the
 11  nature of technological measures controlling access
 12  evolved in the short period since consideration of
 13  the DMCA.  The paradigms referred to in the
 14  legislative history were devices that opened works
 15  or kept them blocked, literally on-off switches.
 16  You either had access or you didn't.
 17              Technological measures like pass codes
 18  or keys to encrypted or scrambled works are cited in
 19  the committee report.  If you had the code or key,
 20  you're in.  If you don't, you're out.
 21              Other technological measures were
 22  recognized to control what is done with the work,
 23  such as copy protection measures.  The legal
 24  implications for fair use of these latter controls
 25  are what is addressed in Section 1201(c)(1).
 26  Nevertheless, one does not reach the issue of

                                                   PAGE 14
  1  copying if you are denied access.
  2              Thus, in the legislative negotiating
  3  process, technological measures controlling access
  4  were viewed as something that assure the copyright
  5  owner control over who got into the work and who
  6  didn't, something you negotiate for and get - or
  7  not.
  8              It turns out as technological models
  9  have been refined over time, as the Library
 10  Association comments explain, persistent access
 11  usage controls, such as timed use controls which
 12  turn access on and off repeatedly during access
 13  sessions, are a developing model.  Those with
 14  technical savvy can speak in more depth about these.
 15              The simple truth is that the section
 16  drafters did not have persistent access usage
 17  controls before them when crafting the current
 18  relief in Section 1201(a)(1) or Section 1201(c).
 19  However, they knew technology would be changing.  To
 20  keep the legislation current, they granted you
 21  rulemaking authority to use judgment in applying the
 22  exception and set new rulemaking proceedings to
 23  occur in three year intervals after the initial two
 24  year study so that changing conditions could be the
 25  basis for periodic reassessment.
 26              Nevertheless, the failure to account for

                                                   PAGE 15
  1  technological measures that merge access and usage
  2  controls and the fast evolution of technology
  3  complicates your immediate task.  While the
  4  Copyright Office may revisit the issue when more
  5  data is available, it does not provide an immediate
  6  answer as to how best to frame the exemption
  7  initially and make it work effectively for the next
  8  three years.
  9              I doubt I need to emphasize that because
 10  this is the first of these proceedings, even though
 11  you will return to these deliberations in three
 12  years, what you do by this October will set the
 13  standard for years to come.
 14              As to core recommendations, here are a
 15  number of things I think that should be stated in
 16  the final rule.
 17              First, Section 1201(a) applies only to
 18  works protected under the Copyright Act.  This means
 19  that public domain works, government works, and
 20  unprotected databases are not covered by Section
 21  1201.
 22              This much is apparent from the plain
 23  text of the statute. If a work is not protected
 24  under this title, Section 17, USC, then Section 1201
 25  should not make bypassing technological measures
 26  that control access to the work a crime.

                                                   PAGE 16
  1              Second, a particular class of works is
  2  not limited to any category of works.  Fair use and
  3  all of the limitations apply to every conceivable
  4  kind of work, all categories enumerated in Section
  5  102, and others that may be conceived.  This does
  6  not mean that every copyrighted work will be fair
  7  game under the exception. Only that any work could
  8  be based on circumstances.
  9              Third, particular class of work should
 10  be defined in terms of criteria, not by specific
 11  titles.  Among the crucial elements of the
 12  definition are these: whether the content of the
 13  digital version is identical to or the functional
 14  equivalent of a version readily available in the
 15  marketplace that is not subject to access control
 16  measures; whether access to the digital version of
 17  the work was initially lawfully acquired by the
 18  user; whether controls employed restrict uses in the
 19  guise of access; and whether the proposed use is
 20  lawful and noninfringing under current copyright
 21  law.
 22              Fourth, the need for preservation and
 23  archiving of digital work should be specifically
 24  addressed.  In the case of libraries and archives,
 25  if it is established that a particular class of
 26  works is not being preserved or archived by the

                                                   PAGE 17
  1  copyright owners, then upon petition to the
  2  Librarian one or more repositories should be chosen
  3  for purposes of establishing an archive of such
  4  works.
  5              In leaving the definitions and terms of
  6  Section 1201 open to expert interpretation, Congress
  7  gave the Copyright Office and the Librarian
  8  substantial authority to make the principles of
  9  Section 1201 and fashion a remedy that insures
 10  continued viability of fair use in other rights
 11  limitations.
 12              By defining particular classes of works
 13  in the manner suggested, the rulemaking would
 14  provide a narrow, yet focused opportunity for
 15  persons who have legitimate fair use reasons for
 16  using a work to enjoy rights limitations without
 17  fear of civil or criminal liability if they bypass a
 18  technological measure to access a work.
 19              Moreover, such an approach, which
 20  mirrors the way fair use itself has evolved over
 21  time, would sustain the balance between owners and
 22  users that has persisted for decades in current law
 23  and keep the playing field of negotiations level at
 24  a time when licensing access to works, rather than
 25  buying copies, is becoming the prevalent mode of
 26  obtaining copies of many works.

                                                   PAGE 18
  1              Thank you.
  2              MS. PETERS:  Thank you.
  3              Jim.
  4              MR. NEAL:  Good morning.
  5              MS. PETERS:  Morning.
  6              MR. NEAL:  My name is Jim Neal.  I am
  7  Dean of University Libraries at Johns Hopkins
  8  University.
  9              I'm here today as a spokesperson for the
 10  American library community and as a  Director of a
 11  large academic library system.
 12              I have also participated extensively
 13  over the last decade in the national and
 14  international debates on changes in our copyright
 15  laws and the advancement of electronic publishing,
 16  electronic education, and digital libraries.
 17              Most recently I worked closely with the
 18  legislature in Maryland, perhaps not closely enough
 19  --
 20              (Laughter.)
 21              MR. NEAL:  -- as we considered the UCITA
 22  legislation.  My basic message today is that we need
 23  a meaningful exemption for libraries and their users
 24  to the anti-circumvention provisions of DMCA 1201.
 25  We must avoid the unfair and unnecessary barriers to
 26  the legitimate accessing and use of copyrighted

                                                   PAGE 19
  1  works protected by certain technological measures.
  2              Therefore, I support with enthusiasm the
  3  findings and recommendations submitted to the U.S.
  4  Copyright Office on this matter by the American
  5  Library Association and other national library
  6  organizations.
  7              I note what the Episcopal bishop said to
  8  the Anglican bishop.  "Brother, we both serve the
  9  Lord, you in your way and I in His."
 10              In that spirit, I would like to make
 11  several additional points here this morning.  First,
 12  we must enable libraries to continue their historic
 13  functions, the activities that sustain and advance a
 14  healthy society and that break down unfair barriers
 15  to information, access and use, and these include
 16  the ability to archive works, to make materials
 17  available for classroom use, to distribute or
 18  purchase copy, and to serve the visually impaired,
 19  for example.
 20              The exceptions and limitations to
 21  copyright must be preserved and advanced in spite of
 22  technological controls.
 23              Second, libraries are responsible users
 24  of copyrighted materials, and we strive to educate
 25  our users and our communities in the appropriate and
 26  legal employment of these materials in their

                                                   PAGE 20
  1  education, their research, and their work.
  2              We are prepared and we do act
  3  responsibly in addressing in effective ways abusive
  4  behavior.  We have policies.  We have procedures.
  5  We have sanctions.  We inform and orient our users
  6  to their responsibilities as users of copyrighted
  7  materials.
  8              Three, we currently are working with
  9  technological controls, such as domain managed and
 10  password and proxy systems, but we are very
 11  concerned about prospective technological controls,
 12  both what I call passive controls and active
 13  controls, controls that will manage access and use
 14  at a level that will, in fact, prevent legitimate
 15  uses of copyright information.
 16              We need the ability to circumvent such
 17  controls when permitted by the provisions of our
 18  copyright laws.  The ability to print, to make
 19  ephemeral copies, to archive, for example, must be
 20  sustained.
 21              I am concerned about things like self-
 22  help, take down, persistent tools, and other
 23  destructive practices which can undermine a
 24  teacher's class or a researcher's project.
 25              Four, we are similarly concerned in the
 26  library community about the additional risks that

                                                   PAGE 21
  1  such technological controls present in their threats
  2  to personal privacy.  Federal legislative
  3  initiatives are beginning to address these issues,
  4  but libraries are fundamentally committed to the
  5  privacy of our users, and we will not tolerate
  6  erosion of this principle to serve vendor fears or
  7  marketing interests.
  8              I must also step back to Item 3 and say
  9  that multiple formats do not solve our problem.  We
 10  must remember that in the electronic environment
 11  quality of information equals content plus
 12  functionality.  Quality of information equals
 13  content plus functionality, and users of information
 14  in our libraries must be able to make legitimate
 15  uses of the entire information package.
 16              Five, we are very concerned that
 17  technological measures are not designed to prevent
 18  alleged piracy, but actually seek to advance a pay
 19  per use business model for accessing electronic
 20  information.  Pay per look, pay per print, pay per
 21  download, pay per page, per chart, per map, per
 22  sentence, per character, the possibilities are
 23  endless, and we need to be concerned about this
 24  economic model.
 25              Six, we must acknowledge the important
 26  relationship between public policy and the ability

                                                   PAGE 22
  1  of libraries and information users to negotiate
  2  licenses effectively, especially in a market
  3  dominated by sole source providers.
  4              When an activity is recognized and
  5  supported in law, it is possible to argue more
  6  successfully for its inclusion in contract.  This is
  7  a digital divide issue.  Will only those with the
  8  ability to pay, those with the expertise to
  9  negotiate effectively, will they secure fair use and
 10  barrier free access to legitimate actions, to
 11  legitimate use of information?
 12              In conclusion, with the anti-
 13  circumvention provisions of the DMCA, the proposed
 14  database legislation and the hegemony of contract
 15  law over copyright law threatened by the UCITA
 16  legislation now under consideration in our state
 17  legislatures, these things in my view present us
 18  with a situation where we are facing in libraries a
 19  frontal assault by owners of intellectual property
 20  who seek to set aside the balance that we have, in
 21  fact, achieved in our copyright laws.
 22              We must not reinforce and extend a
 23  licensing basis and a transactional model for the
 24  electronic information market, and we must not
 25  undermine the fundamental and socially beneficial
 26  role that libraries have played in enabling access

                                                   PAGE 23
  1  to information.
  2              I'm reminded of a president on a western
  3  campus in the United States who, faced with some
  4  very different budget problems on her campus,
  5  climbed the mountain near campus to consult with God
  6  about her problems.  This is the question that she
  7  posed.
  8              Will the cost of libraries on my campus
  9  ever come under control?
 10              God went off, and She thought and
 11  thought for many days about this question, and upon
 12  returning, She said to Ms. President, "Yes, the cost
 13  of libraries will come under control at your
 14  university, but not in my lifetime."
 15              We can be sure of one thing.  If we do
 16  not create a meaningful exemption for libraries to
 17  the anti-circumvention provisions of  DMCA, our cost
 18  under the impact of multiple and diverse
 19  technological controls for acquiring, licensing, and
 20  managing information to support education, research,
 21  and life long learning, these costs will expand.
 22  But it is the cost of societal advancement and the
 23  forms of reduced intervention and stunted personal
 24  growth that I think will have the greatest expense
 25  in the United States.
 26              I thank you for this opportunity to

                                                   PAGE 24
  1  share my ideas, and I will welcome your questions.
  2              MS. PETERS:  Thank you.
  3              Professor Cohen.
  4              PROF. COHEN:  Good morning.  My name is
  5  Julie Cohen, and I'm Associate Professor of Law at
  6  the Georgetown University Law Center.
  7              I offer this testimony on behalf of
  8  myself as an academic who makes research use of
  9  copyrighted materials, as a teacher who makes
 10  educational use of copyrighted materials, and as a
 11  specialist in copyright law who has published a
 12  number of articles about the implications of
 13  copyright management technologies and anti-
 14  circumvention regulations. The articles are cited in
 15  the written testimony.
 16              It is my personal opinion that the anti-
 17  circumvention provision in Section 1201(a)(1), as
 18  well as the related provisions in Section 1201(a)(2)
 19  and (b), are in their entirety unconstitutional.
 20  That question, though, plainly is not before the
 21  Librarian today.
 22              Instead, we are here to determine
 23  whether the Librarian should declare a specific
 24  exemption or exemptions to the anti-circumvention
 25  provision in Section 1201(a)(1), pursuant to
 26  statutory authorization.

                                                   PAGE 25
  1              To do that, however, this proceeding
  2  first must determine exactly what sort of exemption
  3  Section 1201(a)(1) authorizes.  In particular, if
  4  the statutory delegation to the Librarian is
  5  susceptible of different constructions, one
  6  constitutional and one not -- that is to say, if the
  7  statute is ambiguous -- it is equally plain that the
  8  Librarian must choose the construction that comports
  9  with constitutional limitations.
 10              Chevron teaches that an agency's
 11  reasonable construction of ambiguous statutory
 12  language is entitled to deference.  An
 13  unconstitutional interpretation is by definition an
 14  unreasonable one.  That question is properly raised
 15  in this proceeding.
 16              There is a constitutional interpretation
 17  of Section 1201(a)(1) and an unconstitutional one,
 18  and the Librarian is obligated to choose the former
 19  and not the latter.
 20              Section 1201(a)(1) authorizes the
 21  Librarian to declare an exemption to the prohibition
 22  on circumvention of access control measures for, ``a
 23  particular class of copyrighted works,'' upon a
 24  showing that the ability to make noninfringing uses
 25  is likely to be, ``adversely affected.''
 26  Constitutionality hinges upon the interpretation of

                                                   PAGE 26
  1  these two phrases.
  2              With regard to a ``particular class,'' the
  3  question is how a class should be defined and, in
  4  particular, whether a class may be defined by
  5  reference to the type of use sought to be made.  The
  6  copyright industries, in their joint reply comments,
  7  argue that defining permitted uses is not the issue
  8  in this proceeding.
  9              Nothing could be farther from the truth.
 10  The statute and the legislative history suggest that
 11  classes of works are not coextensive with categories
 12  of original works of authorship, as that term is
 13  used in Section 102(a), but beyond that, they simply
 14  do not say what Congress intended "class" to mean.
 15              The dictionary defines "class" as a
 16  group, set or kind sharing common attributes.  The
 17  nature of the attributes that will define the scope
 18  of the exemption is precisely the question that this
 19  proceeding must address.
 20              Moreover, the language of the statute
 21  authorizes the Librarian to declare an exemption for
 22  any class of works that raises the concerns
 23  articulated by Congress, and thus, necessarily, for
 24  all classes of works that do so.
 25              Based on my experience as a researcher,
 26  writer, and educator, I believe that the question of

                                                   PAGE 27
  1  what class or classes of works raises the problem
  2  that Congress identified cannot be answered ex ante
  3  except by reference to the use that is sought to be
  4  made.  The nature of the research and educational
  5  processes makes it impossible to say in advance
  6  which specific works must be consulted.
  7              Research is, by its very nature, a
  8  process of open ended and wide ranging inquiry.
  9  Good research and good writing require a significant
 10  degree of random, fortuitous access to source
 11  materials and the ability to pursue tenuous, but
 12  possibly fruitful links and connections.
 13              Good creativity, that is to say,
 14  requires something less than perfect control for
 15  copyright owners, and promoting good creativity is
 16  what copyright is all about.  It is for precisely
 17  this sort of reason that Section 107's fair use
 18  analysis is an open ended balancing inquiry, and
 19  that the Supreme Court has cautioned against the
 20  application of rigid presumptions and bright line
 21  rules.
 22              In contrast, the implementation of
 23  persistent access control technologies without
 24  exemption would require, in effect, ongoing
 25  preauthorization of research uses.  This would chill
 26  the freedom of inquiry that is central to the

                                                   PAGE 28
  1  academic process and that is, moreover, privileged
  2  by the First Amendment as I have explained in my
  3  article, "A Right to Read Anonymously."
  4              Good education requires a similarly open
  5  ended approach to questions of access to and use of
  6  copyrighted materials.  The basic course in
  7  copyright law is illustrative.  Students must read
  8  federal cases and statutes, of course, and since no
  9  copyright subsists in those materials, they should
 10  be entitled to circumvent access controls when no
 11  feasible alternative exists.
 12              However, a good copyright course also
 13  will expose students to scholarly theories and
 14  source materials, and further to examples of the
 15  various works that are or might be the subject of
 16  copyright disputes.  Persistent access control
 17  technologies threaten this practice, and as an
 18  educator, I consider this a grave threat.
 19              Education is about free ranging inquiry,
 20  full stop.  We do not require that our students
 21  apply for permission to read, view, and evaluate
 22  original source material lawfully acquired by the
 23  university any more than we require them to apply
 24  for permission to think.
 25              I do not consider it an exaggeration to
 26  say that the loss of the ability to use lawfully

                                                   PAGE 29
  1  acquired copies or phonorecords representing the
  2  full range of copyrightable subject matter in any of
  3  the ways permitted by Sections 107 and 110 would
  4  cripple the educational process.
  5              Regarding what is necessary to show
  6  likelihood of, ``adverse effects,'' the copyright
  7  industries in their joint reply comments make much
  8  of the House manager's statements purporting to
  9  require a standard of proof far higher than that
 10  which obtains in administrative proceedings
 11  generally.
 12              But as Arnie Lutzker has explained, that
 13  clearly is not the law.  If Congress, the full
 14  Congress, had wanted to subject this proceeding to
 15  such an anomalous standard of proof, it would have
 16  said so in the statute.  There remains the
 17  substantive question whether access controls
 18  implicate the ability to make noninfringing uses.
 19  The copyright industries argue that they do not, and
 20  for some access control technologies this may well
 21  be true.
 22              The stated intent of the copyright
 23  industries, however, again as Arnie has explained,
 24  is to implement persistent controls that require
 25  continual reauthorization of access and so
 26  technologically conflate access and use.

                                                   PAGE 30
  1              With respect to these technologies --
  2  which are already beginning to be implemented in,
  3  for example, DVD movies, video games and some
  4  software -- the issue of leeway to make
  5  noninfringing uses is squarely joined.  The problem
  6  exists, however, for any work to which persistent
  7  access controls are or are threatened to be applied.
  8              As I have just discussed, this type of
  9  access control technology poses very real and
 10  concrete threats to uses that are both traditionally
 11  privileged and vital to research and education.  The
 12  risk to noninfringing uses exists for all digitized
 13  works because all such works reside in computer
 14  memory simply as an agglomeration of bytes, and
 15  access control technologies are portable without
 16  limitation to all such works.  That is sufficient to
 17  show likelihood of adverse effects, and that is all
 18  that the statute requires.
 19              It is simply no answer to say, as the
 20  copyright industries do in their joint reply
 21  comments, that the Librarian also must consider the
 22  extent to which access controls facilitate uses that
 23  are noninfringing because they are licensed.
 24  Section 1201(a)(1)(C)'s enumeration of factors that
 25  track the traditional fair use factors indicates
 26  that these authorized uses are not the uses Congress

                                                   PAGE 31
  1  had in mind.  Only infringing uses require
  2  permission in the first place.  Proof of a
  3  noninfringing use is a defense to charges of
  4  infringement.  It follows that a noninfringing use
  5  must be an unauthorized one.
  6              It is worth noting, too, that
  7  individuals seeking privileged access to copyrighted
  8  works may not be able to avail themselves of the
  9  exemption to circumvention provided in Section
 10  1201(f) for reverse engineering to achieve
 11  interoperability with computer programs that control
 12  access to digitized works.
 13              The reason that they may not be able to
 14  do so is the recent Universal Studios v. Reimerdes
 15  case from the Southern District of New York.  It is
 16  true, as the copyright industries note, that
 17  Reimerdes was decided under Section 1201(a)(2),
 18  which prohibits trafficking in technologies to
 19  circumvent access controls.
 20              Nonetheless, Reimerdes is squarely
 21  relevant in this proceeding.  If Reimerdes is right,
 22  another question that is not raised here, then the
 23  scope of the reverse engineering exemption in
 24  Section 1201(f) is quite narrow, so narrow that it
 25  does not extend to the production of devices
 26  designed to allow individuals' computers to

                                                   PAGE 32
  1  interoperate with digital works to which they have
  2  purchased lawful access.
  3              If the reverse engineering exemption
  4  does not authorize this type of interoperability,
  5  then the only way of authorizing such
  6  interoperability is through an exemption promulgated
  7  under Section 1201(a)(1).
  8              In sum, there is a strong likelihood
  9  that the increasing use of persistent access control
 10  technologies will sharply curtail the access
 11  privileges that individuals have enjoyed under the
 12  fair use doctrine and other limitations on copyright
 13  scope.
 14              Certainly there is sufficient likelihood
 15  to satisfy the civil preponderance of the evidence
 16  standard that obtains in administrative proceedings
 17  generally.  For this reason alone, the Librarian
 18  should conclude that the need for circumvention
 19  privileges extends broadly across any class of works
 20  that may lend value to the research and educational
 21  process and which is not otherwise available without
 22  technological gateways in the form of persistent
 23  access controls.
 24              Section 1201(c) clearly indicates
 25  congressional intent to preserve fair use and the
 26  other statutory limitations on the exclusive rights

                                                   PAGE 33
  1  of copyright owners.  That intent must inform the
  2  Librarian's interpretation of the exemption.
  3              It bears repeating here that the
  4  interpretation of the statute adopted in this
  5  proceeding must be a reasonable one. As the Supreme
  6  Court has recently explained in the case of FDA v.
  7  Brown and Williamson Tobacco Company, what is
  8  reasonable is a function of overall statutory
  9  context.
 10              But there is more.  As I have indicated,
 11  an interpretation that preserves fair use and other
 12  limitations is constitutionally required.  In its
 13  Harper and Row decision, the Supreme Court indicated
 14  that fair use serves as a First Amendment safety
 15  valve within copyright law.
 16              Other decisions, including Feist and the
 17  venerable case of Baker v. Selden, suggest that
 18  preserving access to uncopyrightable elements of
 19  copyrighted works is required by the policies
 20  animating the patent and copyright clause.
 21              Simply put, Congress cannot eliminate
 22  fair use or extend copyright-like exclusive rights
 23  to uncopyrightable components of protected works.
 24  For the same reasons, where another interpretation
 25  is available, the Librarian cannot adopt an
 26  interpretation that would give an act of Congress

                                                   PAGE 34
  1  this effect.
  2              These constitutional considerations,
  3  moreover, should inform the assessment of the burden
  4  of proof that Section 1201(a)(1) places on
  5  proponents of exemptions.
  6              I note in passing my belief that the
  7  lack of a parallel exemption to the ban on
  8  trafficking and circumvention technologies is in any
  9  event fatal to the statute's constitutionality.
 10  Without such an exemption, any exemptions arising
 11  from this proceeding will be available in theory
 12  only.
 13              In light of the joint reply comments
 14  submitted by the copyright industries, it is worth
 15  specifying here what my argument is not.
 16              First, this is not an argument that
 17  circumvention should, ``be shielded from liability in
 18  virtually all circumstances.''  So far as I am aware,
 19  no member of the library and educational communities
 20  has urged this result.  What is argued instead is
 21  simply that the exemption must be extended to those
 22  users and uses that have traditionally enjoyed the
 23  privileges of the fair use doctrine and other
 24  limitations on copyright owners' exclusive rights.
 25  Nor is this an argument that the fair use doctrine
 26  or other limitations should, ``provide a defense to

                                                   PAGE 35
  1  liability for circumvention of access controls.''
  2              Quite clearly, Section 107 does not
  3  itself afford a defense to the separate cause of
  4  action that Congress created in Section 1201(a)(1).
  5  However, the record shows that Congress recognized
  6  that the new anti-circumvention provision would
  7  threaten fair use and other copyright limitations
  8  with respect to works protected by access control
  9  technologies.
 10              Accordingly, Congress authorized the
 11  Librarian to craft exemptions to the circumvention
 12  ban that are analogous to fair use and rest on the
 13  same considerations.
 14              I would like to close by mentioning two
 15  other constitutional considerations that are
 16  relevant in this proceeding.  First, the
 17  interpretation of Section 1201(a)(1) also must be
 18  informed by due process considerations.  Although
 19  nonprofit libraries and educational institutions are
 20  not subject to criminal penalties under Section
 21  1204(b), this exemption does not extent to the
 22  individuals who constitute their clientele.
 23              Enormous vagueness and overbreadth
 24  problems would flow from the threat of criminal
 25  liability for circumvention in cases where the
 26  underlying use is and has traditionally been fair

                                                   PAGE 36
  1  and privileged under copyright law.  This rulemaking
  2  should interpret Section 1201(a)(1) to avoid these
  3  problems.
  4              Second, the persistent access control
  5  technologies that are now beginning to emerge
  6  generate records of the details of individual access
  7  to the technologically-protected work.  This raises
  8  enormous privacy problems.
  9              As I have argued in my published
 10  writings, because the records reflect intellectual
 11  activity and often associational activity as well,
 12  their creation also raises First Amendment concerns.
 13  Specifically, the enforcement of criminal penalties
 14  against individuals who circumvent access controls
 15  to protect their intellectual privacy represents a
 16  constitutionally impermissible threat to freedom of
 17  intellectual inquiry.
 18              Section 1201(i) does not address this
 19  problem because it focuses solely on ``on-line
 20  activities'' and solely on measures that are not
 21  disclosed to the user. But the chill exists whether
 22  monitoring is disclosed or not and whether or not
 23  the technological measure tracks ``on-line
 24  activities'' generally or simply access to a
 25  particular work.
 26              Specifically, if the institution has

                                                   PAGE 37
  1  lawful access, that should be enough for record
  2  keeping purposes.  A well crafted exemption to the
  3  anti-circumvention provision should foreclose this
  4  privacy threat.
  5              As others have noted, this rulemaking is
  6  about determining what is necessary to preserve the
  7  balance of rights and limitations that copyright law
  8  establishes.  The totality of the statutory evidence
  9  suggests that Congress intended to preserve that
 10  balance and the Constitution requires it.
 11              Thank you.
 12              MS. PETERS:  Thank you.
 13              Can I, before I turn this over to the
 14  rest of the panel, ask a question about the
 15  persistent access controls?  What I thought I  heard
 16  you say is that they're starting to come be
 17  available.  Are libraries dealing with controls at
 18  this point?  And if so, how are they dealing with
 19  them?
 20              MR. NEAL:  We have not experienced as
 21  yet in the electronic resources that we are
 22  acquiring specific technological controls that
 23  enforce that persistence requirement, but we are
 24  beginning to see in the licensing relationships with
 25  publishers a time limitation or a period of
 26  available use set in place.

                                                   PAGE 38
  1              My position is that the things that
  2  we're seeing on the horizon in terms of licensing
  3  issues are harbingers of the types of technological
  4  issues that we're going to have to deal with down
  5  the road.  What is now a negotiation process will,
  6  in fact, I believe become a technologically
  7  controlled reality.
  8              So the time frames that are defined for
  9  access to information could translate into takedowns
 10  of information, takedowns of capabilities through
 11  self-help interventions.
 12              And it was very clear to me as I worked
 13  through the UCITA negotiations in Maryland, although
 14  we neutralize that particular aspect of it, offered
 15  at least some technological capabilities to the
 16  copyright owner side that could create some
 17  limitations in terms of the ongoing use of
 18  information by faculty, students, and library users.
 19              MR. LUTZKER:  And what I would add is we
 20  have some discussion of this in the initial library
 21  comments at page 13 and 14, and I'm not the
 22  technical wizard to explain all of these things, but
 23  part of what I see -- and I think we may all
 24  experience this -- is we do our own computer work.
 25              There's both software and hardware that
 26  can require, you know, payments at various points.

                                                   PAGE 39
  1  So you're doing something, and then if you want to
  2  advance forward you may have to enter your credit
  3  card to continue to either receive something; the
  4  billing may be quite clear, or there may be issues
  5  that are raised.
  6              The question is you've had access.  You
  7  now have to pass another hurdle in terms of a
  8  payment arrangement that then maintains the access.
  9  You don't make the payment; access is then broken
 10  off.
 11              Now, the question is:  having had
 12  initial access, which may have required payment of
 13  some sort, but not for the additional payments that
 14  are in play, what happens to that initial payment?
 15  How do you take advantage of having had access
 16  lawfully in some way where your use then becomes
 17  monitored and then re-access based upon additional
 18  either payments or other criteria that are in play?
 19              Again, my recollection is in discussing
 20  these provisions in Congress, the sophistication of
 21  this stuff was anticipated without going into an
 22  enormous amount of details, and as we get closer to
 23  and as things advance, I mean, I'm sure there's
 24  going to be more technically advanced in the next
 25  years, but this seems to be a developing trend where
 26  access gets turned on and off based upon certain

                                                   PAGE 40
  1  activities.
  2              PROF. COHEN:  I would add that I think
  3  we actually do see a version of this already, and a
  4  good example is: think about using Westlaw or Lexis
  5  to do research.  If you are surfing around on
  6  Westlaw or Lexis looking for things relevant to a
  7  research project and you come across something that
  8  might have some relevance and you're not quite sure
  9  what to make of it, you have basically two choices.
 10  One is to print it out or download it or otherwise
 11  create a fair use archival copy, or in the
 12  alternative, flag it and live with the possibility
 13  that you may at some future time need to go back and
 14  look at that source, whatever it is, again -- which
 15  would mean, according to the access interpretation
 16  that's advanced, that you're requiring a separate
 17  act of access.
 18              Now, imagine a world in which that
 19  separate act of access creates a new fee either for
 20  you or your institution.  That's a dramatic shift in
 21  the way that research has historically been done.
 22  And imagine a world in which you can't create an
 23  archival fair use copy for yourself.  That is also a
 24  dramatic shift in the way that research has
 25  historically been done.
 26              MS. PETERS:  Can I just follow up a

                                                   PAGE 41
  1  little bit with some of the things that you said?
  2  Can I start with you, Arnie?
  3              In the example that you used that you
  4  were familiar with, is the service that you were
  5  using the type of service that you would normally
  6  expect to find in a library or is it a different
  7  type of service that mostly goes to people who are
  8  in their home?
  9              MR. LUTZKER:  I experience it
 10  personally, but I can see it existing both in a
 11  library environment.  A library, you know, is a
 12  terminal, I don't know the statistics.  They're
 13  probably out there about how many people who don't
 14  have computers at home go and use libraries as a
 15  principal basis, and they then -- they function in
 16  that context as if they were home, if you will, when
 17  they're in the library.
 18              But I think it applies both to
 19  individuals in their private work capacity,
 20  whatever, as well as in the libraries.
 21              MR. NEAL:  I think location of access
 22  might not be the appropriate question because a lot
 23  of library users are accessing library provided
 24  capabilities in their homes.  So the location of
 25  use, I think, is not the relevant, may not be the
 26  relevant question.  I think more important is the

                                                   PAGE 42
  1  sustained and legitimate use of that information
  2  without the fear that it's going to be taken down,
  3  without the fear that there are going to be
  4  unnecessary interventions into your computer, and
  5  without the fear that you're going to have an
  6  escalating series of costs that you're going to have
  7  to pay in order to progress through the information.
  8              MS. PETERS:  And you were the one who
  9  talked about the time access.  Were you talking
 10  about the fact that like certain CD-ROMs, you get
 11  them for a year; you get them for a month.  Based in
 12  the software after that period, there no longer is
 13  access, or alternatively, in a contract you
 14  basically have paid for this service for a year, and
 15  at the end of the year -- okay.
 16              With regard to the CD-ROMs and at the
 17  end of the year that's the end of it, what, if any,
 18  are the alternatives?  Can you buy the equivalent of
 19  the book material and not have limitations on it or
 20  on-line access in which you have more control over
 21  when it would expire?
 22              MR. NEAL:  I think this is obviously a
 23  very complex set of issues that is being redefined
 24  in many ways by the technological capabilities, but
 25  the whole issue in contract arrangements between the
 26  actual purchase and ownership and, therefore, the

                                                   PAGE 43
  1  ability to do certain things with information as
  2  compared with sort of the rental licensing
  3  environment in which a lot of the electronic
  4  information that we're using is now managed, I
  5  think, presents a very different time and ownership
  6  expectation within a library setting.
  7              And because of the hundreds of
  8  thousands, legitimately hundreds of thousands of
  9  different information transactions, information
 10  resource transactions that exist within a library
 11  setting, some of which are time dependent, some of
 12  which are perpetual and, therefore, under an
 13  ownership model, creates an extraordinarily
 14  difficult environment not only for the library
 15  managers to deal with because of the diversity of
 16  access rules that they're going to have to work
 17  through, but users shouldn't be expected to have an
 18  understanding of that diversity, or confronted with
 19  a situation where they don't have uniform, uniform
 20  approaches, but very, very different approaches that
 21  could maximize into the hundreds of thousands of
 22  different situations that they're faced with in
 23  using information.
 24              So I think that's one principle, rental
 25  versus ownership.  But I'm concerned about
 26  situations where we get technologies that are

                                                   PAGE 44
  1  chronologically sensitive, and we have that
  2  information either loaded locally or we have
  3  accessed it through the Web, and there are time
  4  frames defined for the use of that information
  5  within our environment.
  6              Now we do it through some type of proxy
  7  or domain controlled environment where things could
  8  be taken down and without negotiation, without
  9  interaction, maybe legitimately, perhaps
 10  illegitimately, and so how do we make sure that our
 11  students and our faculty and our users have
 12  persistent access to that information when it's
 13  appropriate and necessary?
 14              MR. LUTZKER:  If I could add, the
 15  dialogue suggests to me another reason why it's --
 16  as you think of a rulemaking, you have to at some
 17  point focus on the uses that are made of the work
 18  because, that's what fair use is about, but if you
 19  take an example where with that CD-ROM, that is, you
 20  know, at the end of a year.  You can't react.
 21              If I wanted to do research into that and
 22  pull some things which would be definable as fair
 23  use, there ought to be a way to do it in my mind.
 24  Exactly how you write the regulatory approach to it,
 25  but there ought to be a way to reaccess that work
 26  without having to go through perhaps the clearance

                                                   PAGE 45
  1  process because when you're dealing with fair use,
  2  you're not dealing with clearances.  You're dealing
  3  with individuals acting on their own initiative
  4  without prior permissions.  There ought to be a way.
  5              At the same time, if I wanted to access
  6  it so that I could make copies and send it around to
  7  friends, that oughtn't be allowed.  That's not what
  8  the purpose ought to be, and so you have to then
  9  look at the intent and the use of users.
 10              And another reason why this -- in terms
 11  of the impossibility of defining particular classes
 12  of work as specific things is just for the very
 13  purpose.  How do I know?  I mean, you can't make a
 14  showing in this proceeding about whether somebody
 15  with respect to some yet unmade CD-ROM that's going
 16  to have a timed use to expire in 2002 which comes
 17  into being in 2001; how do you define what the fair
 18  use rights are with respect to that particular work
 19  now?  How do you even establish it?
 20              I think you have to deal, again, as I
 21  suggested in conceptual terms, that you have to
 22  develop standards so that these can then be applied
 23  in the marketplace and leave people knowing what the
 24  penalties are if they have great exposure.  They may
 25  exercise these somewhat more gingerly, but you still
 26  need to make that available for them if fair use is

                                                   PAGE 46
  1  going to have meaning.
  2              PROF. COHEN:  Another thing to consider
  3  in evaluating the time limited CD-ROMs, for example,
  4  versus the availability of alternative paper
  5  resources is that having enough paper resources to
  6  serve your entire student body and faculty often
  7  requires multiple copies, and many libraries right
  8  now are being confronted with a choice whether to
  9  down-size their print collections and replace them
 10  with electronic collections, and they're being
 11  encouraged to do so by publishers. Many libraries, I
 12  think, quite wisely are not completely getting rid
 13  of their print collections, but it might be the
 14  case, for example, that you used to have five
 15  reporter series to serve all your law students and
 16  now you just keep one or two, and if then access to
 17  the electronic version disappears, one or two copies
 18  at a school like Georgetown with 2,000 students is
 19  just facially inadequate.
 20              And so there's a question, as Jim said,
 21  about content plus functionality that is still very
 22  relevant.
 23              MS. PETERS:  Can I ask you?  What are
 24  you doing today with regard to CD-ROMs that are time
 25  limited?
 26              MR. NEAL:  We take them down.

                                                   PAGE 47
  1              MS. PETERS:  Okay.  So you take them
  2  down.  Okay.
  3              MR. NEAL:  Right.  We send them back.
  4              MS. PETERS:  Okay.  All right.  Can I
  5  just ask a question that you brought up?  You talked
  6  about the functional equivalent and Professor Cohen
  7  talked about Westlaw, where much of the material is
  8  available in print form as well as electronic form.
  9              When you talk about functional
 10  equivalent, if there is an electronic version that
 11  has search and retrieval capability but the exact
 12  same material is available in print format, you just
 13  have to do a lot more work to get at the same
 14  information; where does functional equivalency enter
 15  in that equation?  Are you saying you've got to have
 16  access to the electronic?
 17              MR. LUTZKER:  Okay.  I know that if I'm
 18  wearing an advocate hat, I know some in the library
 19  community would view that as a critical component of
 20  the work itself.  I think from a copyright point of
 21  view, conceptually I think there ought to be a way
 22  to separate the work from these other software
 23  advantages that come with the work.
 24              I don't know if that's -- I mean, you
 25  know, we're heading into an area where the
 26  functionality of the software which adds to search

                                                   PAGE 48
  1  and retrieval information.  That's value added by
  2  the publisher, let's say, and is distinct from the
  3  work, and so technically I would say I want to have
  4  access to the work, and several possibilities.  One
  5  is there may be the ability to bypass and substitute
  6  your own, off-the-shelf functionality searching
  7  thing that can enable you to achieve whatever search
  8  functions you might want to have, but you're not
  9  going to use Westlaw's search system.  You get the
 10  ABC search system to preload on your system.
 11              I don't know technically if that's
 12  feasible or not.  I think it becomes -- I would say
 13  that I don't think the functionality of the search
 14  system should be the ultimate block to access to the
 15  work.  I think there's a higher motive in being able
 16  to access the work, and if it's inseparable with the
 17  searching functions of this DVD or the devices, I
 18  think that may be, again, part of the fair use of
 19  that particular work.
 20              MS. PETERS:  This is where you were in,
 21  i think your quality of information is content plus.
 22              MR. NEAL:  Absolutely.  I think the
 23  environment in which we're operating, there are a
 24  number of points I would make here.
 25              First, I think work and its quality is
 26  increasingly defined not just by the information it

                                                   PAGE 49
  1  provides, but what you can do with that information,
  2  the functionality of that information, and I think
  3  we over time will not be able to divorce those
  4  elements because we're able to provide students,
  5  faculty, and library users with a level of access
  6  and a level of usability that is critical, becomes
  7  increasingly critical to their work.
  8              Secondly, analog equivalents do not
  9  allow me -- and I'm not a lawyer, but we're driving
 10  over here into some interesting other areas that
 11  we've talked about, and that is my ability to serve
 12  a global student and faculty.  An analog equivalent
 13  does not enable me to deliver that content and
 14  functionality in appropriate ways, in legitimate
 15  ways to a user community which is defined globally
 16  rather than within the walls of my building.  And so
 17  I need to be concerned about that issue as well.
 18              MS. PETERS:  So you're talking about
 19  delivering content beyond the walls of your library?
 20              MR. NEAL:  That's correct.
 21              MS. PETERS:  And let me just --
 22              MR. NEAL:  In noninfringing ways.
 23              MS. PETERS:  Noninfringe.  I'm trying to
 24  figure out "in noninfringing ways" how you're going
 25  to deliver pieces of information?
 26              MR. NEAL:  Yeah, sure.

                                                   PAGE 50
  1              MS. PETERS:  As opposed to entire works?
  2              MR. NEAL:  That's correct.
  3              MS. PETERS:  Throughout the globe.
  4              MR. NEAL:  If I have students who are
  5  working in our campus at Nanjing, China, I have to
  6  be able to provide them with legitimate and
  7  noninfringing access to information that I am
  8  purchasing and licensing at Johns Hopkins
  9  University.
 10              MS. PETERS:  When you use "information,"
 11  it's, I take it -- I shouldn't take anything.
 12  Excuse me.  What kind of information would that be?
 13              MR. NEAL:  Published information.
 14  Information captured in books, journals, other forms
 15  of expressions of information.
 16              MS. PETERS:  Okay.  One last question.
 17  Arnie, you talked about being intricately involved
 18  in the crafting of this provision, and there's so
 19  much focus on you should focus on the use that's
 20  being made of the copyrighted work.  Could you just
 21  give me an example of what you think a particular
 22  class of work would be under what the Commerce
 23  Committee and maybe the Congress intended?
 24              MR. LUTZKER:  Well, I think there were
 25  really two threads that were going on, and the way
 26  the language was drafted, a lot of back and forth

                                                   PAGE 51
  1  between different messengers moving back and forth.
  2              Conceptually I think that a particular
  3  class of work would be, as I said, it would be
  4  something distinguished from categories of work.  So
  5  it would cut across.  It could be any type of work
  6  or group of works.
  7              I suppose the paradigms would be sort of
  8  a couple of examples.  One is that there are digital
  9  works, DVDs, and I don't know whether DVDs or CD-
 10  ROMs at that point.  If there were print analogs to
 11  CD-ROM text, that could be viewed as works that you
 12  have access to in alternative, assuming they're
 13  readily available, in alternative form.
 14              If they are not, if a work only exists
 15  in a digital format and does not exist in a readily
 16  available call it print format, but it might be
 17  other analog format, that then would begin to
 18  constitute classes of works that would be available
 19  for these purposes.
 20              Beyond that, and this goes to the fact
 21  that we were, again, focusing on the merger of the
 22  uses that were being made of the works, I think,
 23  certainly as I was thinking through the language
 24  that we were trying to achieve; the goal was to try
 25  to preserve in an environment where both either
 26  civil or criminal penalties would attach, to

                                                   PAGE 52
  1  bypassing certain technology, that you could
  2  preserve works in a way that maintains copyright
  3  principles.
  4              Therefore, broad concepts of digitally
  5  available work sold to libraries, as an example,
  6  could constitute a particular class of works.
  7  Personally I think that may be too broad a concept,
  8  but it was one that was discussed.
  9              The particularity of the class, again, I
 10  think becomes, as one understands the necessity of
 11  interpreting the statute in a responsible way, and I
 12  think Julie's statement really hits home because we
 13  were incredibly troubled with the resolution that
 14  was achieved because we did not feel that it clearly
 15  understood what the purposes of what they were
 16  trying to achieve.
 17              In other words, preserving the fair use
 18  and rights limitations in copyright law which are
 19  use oriented, and that if works are available in the
 20  marketplace -- this is the simple concept -- if
 21  they're available in the marketplace, you can go in
 22  a bookstore and pick them up, then you don't have to
 23  break through to access them.
 24              If works are not available in that
 25  format or the functional equivalent, then you should
 26  have the ability to access them.

                                                   PAGE 53
  1              MS. PETERS:  Okay.  I'm going to stop.
  2              David.
  3              MR. CARSON:  Let me start with you,
  4  Arnie.  I want to make sure I understand what you
  5  just said.  Are you saying that you were troubled by
  6  the ultimate language in the statute because it
  7  wasn't clear that it was, in fact, focusing on the
  8  types of uses that ought to be permissible, or was I
  9  misunderstanding what you said?
 10              MR. LUTZKER:  No.  I think the trouble
 11  that I had, and as I said, I think Julie's statement
 12  gives clear summary to many of the concerns that we
 13  had at the time.  I think there remains ambiguity
 14  and vagueness throughout the language as to what is
 15  this particular class of works.  I think that where
 16  you have a criminal statute, and I can say that, you
 17  know, in terms of my interpretation it's not a
 18  binding interpretation obviously, but where it can
 19  apply to uses, it can apply to particular categories
 20  of works that are not otherwise available, you know,
 21  the format.
 22              The clarity of the language just isn't
 23  there.  What constitutes circumvention, what
 24  constitutes a technological measure, it's been
 25  suggested as we noted in our comments; it has been
 26  suggested that a library card constitutes a

                                                   PAGE 54
  1  technological measure that protects works, and that
  2  certainly wasn't broached during the course of the
  3  discussions, but I can understand how people could
  4  reach that conclusion.
  5              And I think the ambiguity of the terms
  6  throughout was a persistent problem.
  7              MR. CARSON:  Professor Cohen, can you
  8  tell us specifically what exemptions you would like
  9  us to recommend to the Librarian that he find ought
 10  to be or will be created pursuant to Section
 11  1201(a)(1)?
 12              PROF. COHEN:  What I would recommend,
 13  and excuse me because I'm fishing around in my stack
 14  of papers, is quite closely in line with what has
 15  already been put forward by Peter Jaszi and by Arnie
 16  today.
 17              In Peter's testimony, he talked, I
 18  believe, about ``works embodied in copies which have
 19  been lawfully acquired by users who subsequently
 20  seek to make noninfringing uses thereof.'' To that I
 21  would add works access to which has lawfully been
 22  acquired by the user or the user's institution
 23  because institutional access followed by subsequent
 24  unmetered use by users who are affiliated with that
 25  institution -- educational and research users -- is
 26  a historic and, I've argued, constitutional part of

                                                   PAGE 55
  1  what fair use requires.
  2              The list of factors elaborated by Arnie
  3  similarly goes to the question of whether initial
  4  access was lawfully acquired by the user, and to
  5  that again I would add "or the user's institution."
  6              Sometimes the status of the user as an
  7  authorized affiliate of an institution will be quite
  8  relevant, and I believe that is underscored by Jim's
  9  point about his students in China who are
 10  nonetheless affiliated with Johns Hopkins and,
 11  therefore, by paying tuition are entitled to the
 12  right to access resources held in the university's
 13  main library. And then the further factors
 14  elaborated by Arnie, I believe, are also valid and
 15  should be part of the definition of the exemption
 16  that is authorized:
 17              ``Whether the content is identical to or
 18  the functional equivalent of a version readily
 19  available in the marketplace.'' I would just
 20  underscore that as to that factor we should not be
 21  talking simply about whether there's some
 22  substitute, some other work available in the
 23  marketplace from some different publisher. Sometimes
 24  there isn't substitutability for informational
 25  works.  Imagine if you couldn't get, for example, a
 26  Nimmer on Copyright.  What would you do?

                                                   PAGE 56
  1              I suppose some competitors to Nimmer on
  2  Copyright might wish for such a world, but in my
  3  opinion, if I couldn't have access to that work, it
  4  would be fatal to what I do every single day.
  5              ``Whether the controls employed restrict
  6  uses in the guise of access.'' I suppose if I take
  7  off my advocate's hat for one second and put my
  8  academic's hat back on, the distinction between
  9  access and use is metaphysical, right?  And that's
 10  the problem that we're all sitting here scratching
 11  our heads about.
 12              But nonetheless, Section 106 does not
 13  give the right to control all uses and, therefore,
 14  it's a distinction that has to be made in some way
 15  whether or not we think it's a strange thing to have
 16  to do.
 17              This gets back to the question: is there
 18  a right to access the value added, for example,
 19  after there's been takedown, and does that mean
 20  there should be some right to access the CD-ROM
 21  version as opposed to the print version of the work?
 22              If we say that there is not, in my view
 23  that leads inexorably to a pay-per-look regime, and
 24  we need to consider when we're talking about the
 25  value added that the institution, the user's
 26  institution, has already paid an enormous sum of

                                                   PAGE 57
  1  money for access to the electronic resource -- in
  2  many cases an enormous sum of money over and above
  3  what it would have to pay for access to the print
  4  resource.
  5              Now, as a matter of policy and
  6  tradition, within the sectors of our society that do
  7  public education, that do research, that do library
  8  services, we have not had metering and pay-per-look
  9  below the institutional level.  If the institution
 10  purchases lawful access, that has been good enough,
 11  and that has fostered an incredibly rich and vibrant
 12  educational and research culture, and I've argued
 13  that constitutional values underlie that system.
 14              I would argue that absent very, very
 15  clear indication that Congress intended to change
 16  that entire sector of our society and to eradicate
 17  that entire culture, there should be a strong
 18  presumption to retain it.
 19              MR. LUTZKER:  And I would just add that
 20  the solution of the fair use debate that devolved
 21  was one that to some significant degree was a punt
 22  by Congress.  Congress was looking at this issue.
 23  They wanted to maintain -- at one level there were
 24  these two competing balances, and they felt that the
 25  capability of putting resolution of these types of
 26  issues in an expert agency that has familiarity and

                                                   PAGE 58
  1  sensitivity to the broad range of copyright concerns
  2  does provide at least a forum for a more full and
  3  complete analysis, which was from my perspective not
  4  given certainly in development of this particular
  5  language.
  6              There was a feeling that by establishing
  7  these general standards and then giving the agency
  8  the opportunity with its expertise in copyright, to
  9  maintain assurance that the fair use aspects of
 10  this, which is really the paramount question why
 11  we're here.
 12              How do you maintain fair use and the
 13  related protections in light of the new prohibitions
 14  which will come into play?  And I think that there
 15  was a sense of discretion that would be afforded the
 16  agency.
 17              And some of the vagueness of the terms
 18  which aside from whether you can do your job
 19  effectively in that context at least reflects the
 20  fact that by putting in an expert agency, the
 21  sensitivity to fair use and how it actually plays
 22  out in the marketplace is a thing that they felt
 23  they would get by giving you this authority.
 24              MR. CARSON:  You've made the case,
 25  Arnie, and I think it's probably fair to say you all
 26  agree with this, that class of works, well, first of

                                                   PAGE 59
  1  all, you say it cuts across categories.
  2              Second, I think I heard that in defining
  3  a class of works, one of the ingredients of that
  4  definition would be the nature of the particular use
  5  that is being made of the work, and that that ought
  6  to be folded into our definition of a class of
  7  works.
  8              Are you all with me so far?  Is that a
  9  fair statement of how you look at the situation?
 10              MR. NEAL:  Yeah.
 11              MR. CARSON:  All right.  It's fair to
 12  say that we recognize the issue; we share the
 13  concern; we ask the question.  One of the many
 14  questions we ask at our notice of inquiry was can
 15  you define a class of works by reference to the
 16  nature of the use, and if you can't, we recognize
 17  the problems that that might create.  Certainly from
 18  your point of view it does create problems.
 19              But I guess I still need to be persuaded
 20  that that really is what is encompassed within the
 21  term "class of work."  So when I read those words on
 22  the page, "class of works," intuitively I don't
 23  think, "Well, that must refer not only to the type
 24  of work, but to the type of use."
 25              When I look even at the Commerce
 26  Committee report language, which is the language you

                                                   PAGE 60
  1  are certainly pressing upon us, I see it saying that
  2  the particular class of copyrighted work should be a
  3  narrow and focused subset of the broad categories of
  4  works of authorship that is identified in Section
  5  102 of the Copyright Act.
  6              All the guidance I see in black and
  7  white in front of me, whether in the statute or in
  8  the legislative history, seems to be talking about
  9  either, well, not necessarily the categories of
 10  works that we find in Section 17, but subsets of
 11  those categories which seems to be telling me, all
 12  right, you start with those categories and then you
 13  subdivide them, not that you cut across them.
 14              I still need to hear more, I think, to
 15  be persuaded that we can do that.  I understand why
 16  you want us to do that, and I may be sympathetic to
 17  that, but I'm not sure I've heard the case for why
 18  we have that much discretion.
 19              MR. LUTZKER:  Well, I think
 20  fundamentally if you also look at the criteria that
 21  was laid out, and I think again I will refer back
 22  and forth to some of Julie's comments as well; I
 23  think it's inherent in the understanding of fair use
 24  and the limitations that are set in copyright law to
 25  say a particular class of works constitutes DVD
 26  disks that contain original films that are not

                                                   PAGE 61
  1  available in any other format.  Okay?
  2              I mean, to say that fair use cannot
  3  apply to -- let me back up.  So you could say in one
  4  context that those then constitute a class of works.
  5  Okay?  You can go through, but the predictability of
  6  what those classes are in a rulemaking context is
  7  virtually impossible in my view.
  8              As I suggest, there are millions and
  9  millions of works.  If the burden of Congress to say
 10  to maintain fair use with respect to works that have
 11  access controls associated with them, as more and
 12  more works have access controls, to say the burden
 13  of proof is to establish with respect to each
 14  particular work that you've got to make a proof now,
 15  looking prospectively for three years, you're
 16  basically going to be in a situation unless you take
 17  this approach that you will, in effect, deny the
 18  fair use concepts that apply to these works.
 19              I think there is a policy inconsistency
 20  with taking that narrow approach that you are stuck
 21  in a rut to say a particular class must only be
 22  specific categories, works.
 23              MR. CARSON:  Well, why did Congress
 24  choose the language "particular class of works"?
 25  Couldn't it have done a much better job making clear
 26  what it wanted to do if what it wanted to do is what

                                                   PAGE 62
  1  you're saying it wanted to do?
  2              MR. LUTZKER:  It could have, and I think
  3  we were dealing with a committee that had less
  4  longstanding responsibility and expertise in the
  5  area of copyright, as this was working out, and I
  6  think there was a simplicity applied to many of the
  7  principles as we were working through achieving a
  8  resolution, and I think the simplest concept would
  9  be I've got a DVD, and I've got a VHS tape.  They're
 10  the same film.  You don't have to break through any
 11  DVD content controls if you can get the videotape.
 12  That would be a simple paradigm.
 13              But if the DVD constitutes a materially
 14  different version than a VHS tape, it has new
 15  material or however one defines the edit element.
 16  Then in that context, that could constitute a
 17  particular class.  I think that was in one level
 18  what was going on.
 19              At a deeper level, at a deeper level,
 20  there was a fundamental desire to preserve fair use
 21  and other rights principles in the context of this
 22  sort of interim period, and there was a fundamental
 23  desire to preserve this going forward for research
 24  and library and fair use purposes.
 25              And as you understand what fair use is
 26  about, fair use is use oriented as opposed to work

                                                   PAGE 63
  1  oriented, and there is an inherent inconsistency,
  2  and as Julie suggested, unless you interpret it in a
  3  way that recognizes fair use is use based, not work
  4  based, then you're left with a dilemma.
  5              But I think the resolution that you can
  6  apply is that it is a use based functionality, and
  7  that particular classes can come forward based upon
  8  standards that you can lay out and that the people
  9  can then apply during the course of the next three
 10  years.
 11              PROF. COHEN:  Let me just build on what
 12  Arnie has said.  Absolutely, it seems clear from the
 13  language of the statute that there was an intent on
 14  the part of Congress to preserve fair use and other
 15  limitations.
 16              Something else that seems relatively
 17  clear to me, and when I teach this statute to my
 18  class, I have been known to say this, is that
 19  Congress didn't really want to get that much more
 20  specific about class and left you with that
 21  thankless task, and that's why we're here.
 22              So we are talking then, at bottom, about
 23  canons of statutory interpretation and about rules
 24  that govern agency interpretation of statutes.  At
 25  bottom, the question of what ``class'' means within
 26  the framework of the statute or whether there are

                                                   PAGE 64
  1  constraints on your interpretation of what ``class''
  2  means within the statute is going to be a question
  3  of law to be decided by an Article III court, and it
  4  would be nice if that you had that in front of you.
  5              But, of course, you don't, and so then
  6  the question becomes: within the overall statutory
  7  context what is a reasonable interpretation of what
  8  "class" means, and it is clear that, for example,
  9  Congress did not say it has to be a specific class
 10  within a specific category, singular, of 102(a)
 11  works.  It said specific classes within the
 12  categories as a whole, "categories," plural.
 13              MR. CARSON:  But why refer to the
 14  categories?  Are the categories irrelevant?  And if
 15  so, why refer to them?
 16              PROF. COHEN:  Well, why not refer to
 17  them?  The categories don't seem to have been the
 18  primary criterion for defining what's a class.
 19  Class is not defined, and Congress could easily have
 20  defined class with reference to a particular
 21  category.  It didn't choose to do so.
 22              So you're left with the question:  what
 23  clues does the statute and what clues does the
 24  legislative history provide about the meaning of
 25  this word "class," and you're obligated to do or,
 26  rather, not to do what would be unconstitutional and

                                                   PAGE 65
  1  your obligated to consider not just the specific
  2  words of particular class of works, but to consider
  3  the overall statutory context which includes Section
  4  1201(c) and includes Section 107 and the other
  5  limitations on Section 106 exclusive rights.
  6              MR. LUTZKER:  David, if I could --
  7              MR. CARSON:  You can, but I think Neal
  8  had wanted to say something.
  9              MR. NEAL:  I just want to say I'm always
 10  very anxious about commenting in these environments
 11  for fear of being naive or uninformed about some of
 12  these legal questions.
 13              MR. CARSON:  You can join the rest of
 14  us.
 15              MR. NEAL:  But I think there's a related
 16  point here that I need to make from the world in
 17  which I live, and that is "works," at least as I
 18  understand them, are losing their relevance.  Works
 19  are defined increasingly by not just what they are,
 20  but what they connect to, and therefore, we have a
 21  body of information that might be a grouping of
 22  works, but that is a dynamic phenomenon that brings
 23  lots of different media, categories, classes of
 24  materials into an interplay which I think defines
 25  increasingly the current and future information
 26  environment in which users work.

                                                   PAGE 66
  1              So what is a work may be related to the
  2  definition of class and category.
  3              The second phenomenon is one in which I
  4  think information intermingles in collections of
  5  information.  So whereas we may have had a journal
  6  and a book and a film and a map, those now become
  7  part of a whole which may be a new work, and the
  8  media, the media of expression, the media of
  9  distribution becomes the collection and not the
 10  individual works that at least in our historical
 11  view make up that collection.
 12              So I don't know if that relates to what
 13  we're talking about here, but those are real
 14  phenomena that we experience in our world.
 15              That is, works may only have effectively
 16  been defined in terms of what they have links to,
 17  which is a dynamic phenomena.
 18              MR. CARSON:  I know that and I follow
 19  that, and I understand that that's the point of view
 20  that you would be looking at or the way you'd be
 21  looking at it, but I guess I'm not sure where that
 22  leads us.
 23              Are you --
 24              MR. NEAL:  Well, I'm trying to
 25  understand your debate over issues of class of
 26  materials and categories of materials, and I hear

                                                   PAGE 67
  1  responses that talk about a work, and what I'm
  2  saying is that increasingly in the world in which my
  3  students and faculty operate, they're not working
  4  with works.  They're working with information that's
  5  linked to other information.  Does that become the
  6  new definition of work, a work?
  7              And where does a work exist within a
  8  body of material which we define as a collection
  9  published on line?
 10              MS. PETERS:  What I'm hearing is that
 11  the world is changing, that the model that we used
 12  before where you had books and you sold books was an
 13  old model, and we're really moving into an entirely
 14  different environment where information is dynamic
 15  and constantly changing.
 16              And what we're responding to in some of
 17  this is that different business models are growing
 18  up to handle that different dynamic nature of the
 19  way we make information and entertainment products
 20  available, and yet what I sometimes hear from you is
 21  but we shouldn't be changing the model.  We should
 22  be modeling it much more on we used to sell books.
 23  It was an outright sale.
 24              MR. NEAL:  You hear me saying that?
 25              MS. PETERS:  No.
 26              MR. NEAL:  Oh.

                                                   PAGE 68
  1              MS. PETERS:  I thought I heard this
  2  panel saying that we're moving to a licensing
  3  regime, and that's really not necessarily a good
  4  thing.
  5              PROF. COHEN:  Well, I could point you to
  6  what the Supreme Court said in Twentieth Century
  7  Music v. Aiken.
  8              MS. PETERS:  Aiken, yes.
  9              PROF. COHEN:  Which I'm sure you know
 10  better than I do, which is that when technological
 11  change makes it a new world, the Copyright Act
 12  should be construed in light of its fundamental
 13  purpose. I think what you're hearing us say is that
 14  the shift to a pure pay-per licensing regime is
 15  absolutely fundamentally inconsistent with that
 16  fundamental purpose.
 17              MS. PETERS:  I hear that, but I meant I
 18  also thought I heard a shift to licensing in
 19  general.  There's a difference between licensing and
 20  licensing pay per view.
 21              MR. NEAL:  I agree with that.
 22              PROF. COHEN:  Absolutely.
 23              MS. PETERS:  Okay.
 24              MR. NEAL:  And I guess what I would
 25  argue is that the constant -- regardless of what the
 26  business model is, regardless of what the format of

                                                   PAGE 69
  1  the information is, given the nuances in the law
  2  about that, and regardless of the way a work is
  3  defined or packaged or linked, the fair use element
  4  must be, in my view a constant.
  5              MS. PETERS:  Okay.
  6              MR. LUTZKER:  And, David, let me return
  7  because I think your concern is obviously a key
  8  concern that I want to persuade you about.  Okay?
  9              If you look at 1201(a)(1)(B) which is
 10  where this all stems from, it speaks about the
 11  prohibition is not going to apply to persons who are
 12  users of a copyrighted work.  Okay.  So we start out
 13  with the statute looking at use of a copyrighted
 14  work.
 15              It then speaks of "which is in a
 16  particular class of work."  So in other words, there
 17  is a narrowness that they perceive in some fashion.
 18  How do we narrow?
 19              Now, class is not a word that is defined
 20  in the Copyright Act, and Congress didn't do a good
 21  job of defining it, but they gave you the
 22  responsibility of defining it, and what I would
 23  suggest is that if you continue in this concept,
 24  we're looking at the user of a copyrighted work.
 25  This work is in some grouping of works.  It's in a
 26  particular classification of works where the user

                                                   PAGE 70
  1  has been adversely affected in making fair use or
  2  other uses of that work that are otherwise permitted
  3  under the statute.
  4              Use permeates the concept of the
  5  particular class of work.  I mean, the particular
  6  class is the generic.  You're really focusing on
  7  what the specific copyrighted work that the user
  8  wants to make use of, and to be assured that this
  9  work is within a grouping of works that will
 10  facilitate fair use because otherwise the statutory
 11  functions are being defeated.
 12              And I would submit that use is inherent
 13  in the concept, and that's really -- you know, in
 14  those days trying to sort of work through this
 15  concept in both the political and other context, I
 16  mean the language is -- the best guide for what the
 17  language is is first you go to the statute, and then
 18  you figure out legislative comments, and people, you
 19  know, will make their own statements.
 20              Committee reports are obviously
 21  important, and I would take Julie's course on
 22  understanding all of the legislative history, but
 23  use is absolutely dead center of what this is about,
 24  and if you try to say, "I want to define a
 25  particular class as National Geographics that are no
 26  longer available in some fashion," you know, you're

                                                   PAGE 71
  1  going to have millions of different things that
  2  you've got to look at and nobody, I would submit,
  3  ought to be forced to come forward now and say how
  4  I'm going to be adversely affected in the next three
  5  years in being able to access certain types of
  6  works.
  7              It can't be done.  It is an impossible
  8  task, and I don't think that this was created -- I
  9  think this was created in good faith to create a
 10  solution to a real problem, to a real dilemma that
 11  both the Commerce Committee took the bull by the
 12  horns and they wanted to move forward with this.
 13  They wanted to create a meaningful opportunity for
 14  fair use to remain available where certain works are
 15  protected by technology.
 16              And unless you take a use orientated
 17  approach then you're going to have a list.  You'll
 18  publish it in the Federal Register.  "The following
 19  are 25 particular classes of works that are okay,"
 20  and then you're saying everything else that's
 21  protected by these measures are not, and I think
 22  that destroys with respect to everything that is not
 23  in this listing of 25 titles or categories,
 24  whatever; it destroys the ability of researchers
 25  like the kids in their classes to study and use the
 26  works as the copyright law intends.

                                                   PAGE 72
  1              MR. CARSON:  So what exemptions do you
  2  propose be published in the Federal Register?
  3  Supply me with the language if you can.
  4              MR. LUTZKER:  Well, I tried to.  In
  5  other words, I think that the particular class, and
  6  again, I think, and I'll make a comment on
  7  Marybeth's.  Licensing is not only not going to go
  8  away.  It's here to stay.
  9              The issue, in part, is a leveling of the
 10  playing field.  This statute, as it was being
 11  proposed and propounded and worked through, it was
 12  understood to create a seismic change in the way
 13  copyright law was going to be perceived because if
 14  you could establish an access barrier before
 15  anything else, it became a crime in putting aside
 16  the exception for libraries and educational
 17  institutions; looking at it from the individual
 18  perspective, it's a crime to access works without
 19  this permission.  Then that's a seismic change
 20  because as has been discussed, I mean, you've got
 21  licensing models popping up all over the place.
 22              But what Congress is saying is we want
 23  to preserve fair use.  These have important
 24  constitutional copyright practical purposes,
 25  creativity and the like.  We want to preserve it.
 26  How do we do that?

                                                   PAGE 73
  1              We're going to allow some periodic
  2  review, and it's not going to be a one time review.
  3  It's going to be periodic.  We're going to allow
  4  some periodic review, and that will assure the
  5  maintenance of fair use and these other exceptions.
  6              And I would submit that if you take a
  7  use based approach -- this has been suggested
  8  whether it's Peter Jaszi's language or things that I
  9  have or that Julie has suggested -- if you do that,
 10  it allows the negotiation process to proceed in a
 11  fair manner because it does create a degree of
 12  ambiguity as to whether this particular work can or
 13  cannot -- the technological measures on a specific
 14  work can or cannot be bypassed.
 15              It puts the burden on the user to
 16  establish justifications if they are ever challenged
 17  in court, and I would submit also that the criminal
 18  provisions here elevate this to a high degree, and I
 19  don't think that particularly with education that
 20  will be going is, that is going on right now and
 21  will continue to go on, people will have a better
 22  understanding of what this all means, and they will
 23  enter upon that warily.  They'll know if they're
 24  bypassing something and put aside the question of
 25  how you can figure out.
 26              You could tell me I could bypass

                                                   PAGE 74
  1  anything, and I wouldn't know how to do it. We've
  2  talked about that. How the marketplace will
  3  accomplish this is a question you don't have to
  4  resolve, I guess, but people will exercise this with
  5  some wariness now, but by giving it a use
  6  orientation, you at least allow the possibility that
  7  a particular work can be subject to fair use.
  8              I mean you have works that are not yet
  9  in being.  You have works that are going to be
 10  created in 2001 and two and three, and no one can
 11  show adverse effects with respect to things that
 12  aren't even in existence.  How do you deal with that
 13  over the next three years?
 14              You can't suspend fair use.  You can't
 15  suspend educational uses that are in the statute now
 16  for three years with respect to those specific
 17  works.  The dilemma, and I don't necessarily see it
 18  as this great big dilemma because I think because
 19  the term is not clearly defined in legislative
 20  history and the statute, they're giving you, the
 21  agency, the ability to define it the way you deem
 22  appropriate.
 23              You may be second guessed in the court,
 24  and you may be stuck with a statute that has such
 25  constitutional infirmities that there's no hope
 26  anyway, but all you can do is give credibility to

                                                   PAGE 75
  1  the existing limitations which have been hard
  2  fought, judge imposed or whatever over the past 50,
  3  100 years, and I think use becomes the pivot around
  4  which you can make sense of this because, let's face
  5  it, it's hard to make sense of some of this.
  6              MR. CARSON:  Let's go to a concrete
  7  situation that we've had some discussion of and one
  8  that's a very simple one that we can all get our
  9  hands around, I think, which is the CD-ROM that has
 10  an expiration date.  It worked up until yesterday,
 11  and then all of a sudden yesterday it stopped
 12  working.
 13              In the context of this rulemaking, what,
 14  if anything, do you propose that we do to solve the
 15  problem if there is a problem created by that
 16  situation?
 17              MR. LUTZKER: I don't think you ought to
 18  deal specifically with that in the sense that if an
 19  individual CD-ROM has now expired, okay, it's
 20  expired.  You know, you can figure out how to break
 21  through or bypass the measures that block access to
 22  it.  If you want to make a fair use of that, you
 23  should be able to, in my view.  Okay?  It's a
 24  copyrighted work.  The statute says copyrighted
 25  works are subject to these provisions.  You should
 26  be able to now.

                                                   PAGE 76
  1              Are you committing a crime by accessing
  2  that work?  The answer has to be based upon how are
  3  you going to use it.  As I said before, if you want
  4  to access it so that you can copy it and send it to
  5  all of your friends, that could be copyright
  6  infringement today, but it could also be a violation
  7  of the access requirements, and it could be a
  8  criminal violation under this statute.
  9              However, if you want to pull out a
 10  paragraph from that CD-ROM for purposes of a
 11  research paper, is that a crime?
 12              MR. CARSON:  Well, let me make sure I
 13  understand.  What you're saying is that you should
 14  be able to access it subsequently for your own
 15  legitimate uses, I think.
 16              MR. LUTZKER:  Non-infringing uses.
 17              MR. CARSON:  Okay, but you shouldn't be
 18  able to access it so that you can send it to your
 19  friends, and you said then that that latter case
 20  might be a violation.  Circumvention to access it
 21  for that purpose might be a violation of Section
 22  1201(a)?
 23              MR. LUTZKER:  Yes.
 24              MR. CARSON:  Simply because you're just
 25  looking at the purpose.  I gather that --
 26              MR. LUTZKER:  Yes.

                                                   PAGE 77
  1              MR. CARSON:  -- is why it made that
  2  difference.
  3              MR. LUTZKER:  Yes.
  4              MR. CARSON:  Okay, okay.  Now, in
  5  talking about an access control that simply is an
  6  expiration date, for example, or some of the more
  7  sophisticated ones we've heard about, to what degree
  8  are we seeing that kind of control out in the
  9  marketplace that is not consistent with licensing
 10  terms that accompany the work, whether those were
 11  freely negotiated or whether you really had no
 12  choice?
 13              In other words, are we seeing
 14  technological controls in works that you pay for,
 15  you get them even though there's no contractual
 16  terms saying that these restrictions are going to be
 17  imposed on you?  Is that a problem today?
 18              MR. NEAL:  No, that's not a prevalent
 19  situation.
 20              MR. CARSON:  So generally when you're
 21  seeing these controls, they are controls that are
 22  essentially enforcing terms that whether you like it
 23  or not you've agreed to.  Is that a fair statement?
 24              MR. NEAL:  But there are two provisions,
 25  two very practical issues here that I think are
 26  legitimate.  One is when a work may have been

                                                   PAGE 78
  1  programmed to be available for a period of time, and
  2  what's been programmed into the work does not agree
  3  with the license agreement that you've signed.  So
  4  you have a period of time in which access is not
  5  permitted even though you have agreed to that
  6  access.
  7              And so that is a possibility where you
  8  have technology which is not in alignment with the
  9  agreement.
 10              The second is where there's a payment
 11  process, where you agree to pay on a periodic basis,
 12  and the work is available for a period of time.  The
 13  payment gets lost.  The payment transaction does not
 14  occur in the way that everyone expects it to, and
 15  the work comes down even though the payment has been
 16  made.
 17              Is there still legitimate and
 18  appropriate use of that information?  Those are
 19  practical issue that I think libraries have and will
 20  increasingly have to deal with.
 21              MR. CARSON:  Let's say you just decide
 22  to stop paying for it.  You have a subscription that
 23  says you pay this much every month, but you decide,
 24  you know, I've been paying for it for six months,
 25  and I just don't feel like paying for it anymore.
 26  I've got it here.  I should be able to circumvent

                                                   PAGE 79
  1  now whenever I want to get the information because
  2  I'm using the information for research.
  3              Is that a situation where you should be
  4  permitted to circumvent because you have the
  5  physical copy in your possession?  You're doing it
  6  for a legitimate research purposes.  You just don't
  7  feel like paying for it anymore.
  8              MR. NEAL:  I would say that the practice
  9  that we would use in my library setting and in most
 10  library settings that I'm familiar with is that we
 11  would not make that material available any longer.
 12              MR. CARSON:  All right, but I'm trying
 13  to figure out how if we follow what is being
 14  suggested here in terms of the exemption that we
 15  gave, maybe I'm missing something, but it seems to
 16  me that the person who decides I don't want to pay
 17  anymore could probably take advantage of the
 18  exemption that is being proposed, and if not, why
 19  not?
 20              PROF. COHEN:  Two things about that
 21  point.  I think the problem that we're having here
 22  stems, first of all, from the fact that what we're
 23  saying is fundamentally there's a need for questions
 24  like that to be decided on a case-by-case basis
 25  consistent with the equitable factors that have
 26  traditionally informed fair use analysis.

                                                   PAGE 80
  1              So you might say, okay, on the one hand,
  2  suppose somebody whose library discontinued its
  3  subscription to this thing ten years ago decides to
  4  circumvent the access controls, and it would seem
  5  that it would be hard to make a good case for that.
  6              Let's say, on the other hand, my library
  7  discontinued its access a month ago, and I was
  8  citing it for a research project I have in progress,
  9  and I really need to continue to check my citations.
 10  It would seem easy to make a good case for that.
 11              And then there's the vast terrain in
 12  between, and it's difficult to say with any
 13  precision exactly where in between you're going to
 14  draw the line and say where it falls and which acts
 15  of circumvention are going to be fair and are not.
 16              But I think the point that we're making
 17  is that line does not coincide exactly perfectly in
 18  a bright line way with the end of the timed
 19  subscription.
 20              Now, that's not necessarily so
 21  comforting, but that brings me to my second point.
 22  It's not in anybody's interest for this to happen.
 23  Publishers want their works to be disseminated.
 24  They want people to have access to and use them, and
 25  libraries want their users to have access to and use
 26  a broad range of works.

                                                   PAGE 81
  1              And here what Arnie said before becomes
  2  critical.  The copyright industries have hammered on
  3  the point that the threat of infringement is what
  4  keeps libraries honest.  I differ with them on the
  5  baseline question as to how honest libraries are.
  6              In the first place, I think they're
  7  quite honest, but as Arnie pointed out, there's a
  8  flip side to that: the threat of fair use is what
  9  keeps publishers honest and keeps the negotiations
 10  on a level playing field.
 11              And I would argue that it's critically
 12  important and, in fact, vital to the working of the
 13  system in a fair and equitable way that Congress
 14  intended that that bright line does not perfectly
 15  coincide with the end of the subscription, and that
 16  bright line is -- excuse me -- that not bright-line
 17  is subject to articulation on a case-by-case basis.
 18              MR. CARSON:  Well, you said something
 19  there, and I think it's the underlying theme of your
 20  whole response there that's been lurking in the back
 21  of my mind as I've been listening to this, and it
 22  sounds as though what you're proposing is that
 23  whatever exemption we end up with is one that is
 24  akin to fair use, and that it relates a number of
 25  factors which ultimately a judge will have to
 26  determine whether you're within it or without it.

                                                   PAGE 82
  1              Is that a fair --
  2              PROF. COHEN:  I think so, and there's
  3  nothing unusual in that.  Courts interpret
  4  regulations all the time.
  5              MR. CARSON:  Isn't that unusual when
  6  you're talking about an exemption though?
  7              PROF. COHEN:  I'm not aware that it is.
  8              MR. LUTZKER:  And I would say that it's
  9  not.  I mean, particularly if you look at the way
 10  the statute was formulated, there is a parallel with
 11  the fair use provisions when you look at the things
 12  that you're supposed to be examining, you know, the
 13  availability of the use of the works, the
 14  availability of use of works for nonprofit, archival
 15  preservation, educational purposes.  There's a
 16  parallel there.
 17              So I think that there was an
 18  understanding that this becomes part of the
 19  copyright mosaic, and since it is copyrighted works
 20  that are protected under the title that are being
 21  subject to this access thing that you do want to
 22  have the flexibility that's already inherent in
 23  copyright law.
 24              Let me focus because I know the
 25  licensing issue is a real nub of one of the problems
 26  that we have to work through with this, and I think

                                                   PAGE 83
  1  you can say a couple of things.
  2              First of all, a contract is a contract,
  3  and it's enforceable on its terms, and if somebody
  4  has a contract to have access for something for a
  5  period of time, that may supersede things that they
  6  have under copyright principles and they've agreed
  7  to the bargain.
  8              Now, there are two types of contracts
  9  obviously.  There are negotiated ones, and there are
 10  the things that you don't negotiate, clip license
 11  and the like.
 12              And I think that the etiquette as we
 13  evolve this area, what you do here will have impact
 14  on the etiquette of negotiations during the next
 15  several years. You may find that to be a good or a
 16  bad responsibility, but I think it will have impact.
 17              I don't think the issue is that licenses
 18  would be ignored.  I think licenses will be
 19  enforced.  The question is:  if someone wants to
 20  exercise -- if a license has expired and on the time
 21  use concept, I'm assuming the license now has
 22  expired.  Okay.  So I'm not under a license.  I'm in
 23  this post license period.  The question is, what's
 24  to be done.
 25              And I think if you also view this in the
 26  context of a statute dealing with criminality for

                                                   PAGE 84
  1  certain activities, which is not -- I mean, you
  2  know, it could have been just a civil thing, but
  3  it's civil and criminal penalties that are
  4  associated with this, fundamentally  the criminal
  5  thing comes up repeatedly because of the concern,
  6  legitimate, about piracy and multiple exploitations
  7  of works.
  8              But at base, if you're looking at an
  9  individual behavior, whether you need to impose the
 10  criminal sanctions on top of something which would
 11  otherwise be arguably fair use, and I think the
 12  ambiguity that comes from just creating standards as
 13  opposed to saying this specific group of works is
 14  now exempt is inherent in, as I said before, in the
 15  nature of the beast of what we're dealing with
 16  coming down from Congress.
 17              But the licensing negotiations that will
 18  go forward, and I hear this, too, in terms of there
 19  is an undercurrent of concern in what you call the
 20  user, library, educational community about license
 21  prices going up and the pay for whatever, but I
 22  think that you can exercise an impact on those
 23  negotiations by what you do now, and if part of what
 24  you view is maintenance of a level playing field,
 25  that will then play out in terms of license
 26  negotiation.  It won't dictate specific terms, but

                                                   PAGE 85
  1  it will have an ability of users to have something
  2  to fall back on in the event they can come up with a
  3  license.
  4              MR. CARSON:  I'm not sure you're
  5  suggesting this, but are you suggesting that a
  6  technological measure that deprives people of access
  7  and that is designed to impose licensing terms is
  8  not the type of measure that Section 1201(a) should
  9  be enforcing?
 10              In other words, leave them to the
 11  contractual remedy, but they shouldn't be able to
 12  ultimately sue you for breaching the technological
 13  measure.
 14              MR. LUTZKER:  Well, they certainly have
 15  a contract right. In other words, if you're in a
 16  license, you're in a different environment because,
 17  by its definition the noninfringing uses we're
 18  looking at are non-permissioned uses.  If you have
 19  permission -- the question is if it's beyond the
 20  scope of the license, okay, but the mere existence
 21  of the license is a fact which will, in a sense,
 22  muddy the use marketplace, if you will -- the
 23  absence of a license is the purest condition.  If
 24  you have a license, it then becomes a set of
 25  commitments on both sides, and if the technological
 26  devices are designed to assure that the license is

                                                   PAGE 86
  1  being enforced, I can understand that.  I wouldn't
  2  suggest that those are going to be what you ought to
  3  wipe away.
  4              But those are the very same things that
  5  impact.  If they impact on a licensed user, they
  6  also impact on an unlicensed user who may be wanting
  7  to make fair use or a post license users who wants
  8  to make fair use.
  9              MR. CARSON:  One final question and then
 10  I'll give someone else a chance.  I guess I've heard
 11  that the kind of exemption you'd like to see is sort
 12  of akin to fair use in that it's a number of factors
 13  and ultimately maybe a court will have to figure out
 14  which side of the line you're on.  Isn't that
 15  inconsistent with what I'm hearing about the
 16  criminal penalties here and the problem that you
 17  need to have clear guidance so that people know
 18  whether they are crossing the line and engaging in
 19  criminal conduct?
 20              I think it's a pretty well established
 21  doctrine that when you have a criminal penalty,
 22  you've got to have a pretty clear definition of what
 23  the criminal act is, and what I'm hearing is, well,
 24  the exemption should be something that ultimately is
 25  determined on a case-by-case basis like fair use is.
 26  The judge will decide whether it is or it isn't, and

                                                   PAGE 87
  1  that to me sounds like something very unusual in the
  2  criminal context.
  3              MR. LUTZKER:  There are criminal
  4  penalties under copyright law.  I mean, in other
  5  words, and people defend:  hey, it's fair use.  You
  6  know, I sold 40,000 copies of Star Wars, and I have
  7  fair use.
  8              I don't think the mere fact that you're
  9  developing -- I think you can do it even though
 10  there is criminal penalties.
 11              MR. CARSON:  Rachel?
 12              MS. GOSLINS:  I just have a couple of
 13  quick questions.  We've heard a lot in the past
 14  three days about fears of the user community about
 15  where these technologies are going and the type of
 16  uses that in the future they may be prohibited from
 17  making.
 18              I'd like for a moment just to focus on
 19  the state of the world today, and anybody can
 20  answer, but specifically I'm interested in the
 21  people who have had experience dealing with both
 22  these resources and the protections that are in
 23  place today and making clear first that
 24  circumventing an access control protection is not
 25  today illegal.
 26              I'm curious if you find yourself today

                                                   PAGE 88
  1  in situations where you were forced to circumvent
  2  access controls in order to make what you consider
  3  fair uses of the work or forego the use.  Are there
  4  things that you do today that, if they do not create
  5  an exemption, will be illegal as of October, the
  6  year 2000?
  7              PROF. COHEN:  I would say this depends
  8  substantially on the terms of my institution's site
  9  licenses of works that I use in digital form, and
 10  this goes back to the example that I gave about
 11  Westlaw earlier.
 12              It's perfectly possible that I would
 13  come across something not a U.S. government work --
 14  say, an article -- and want to make a personal copy
 15  of it or go back and look at it again.  As I
 16  understand it right now, my institution's site
 17  license doesn't impose a separate fee for me to do
 18  either of those things, a metered fee for me to do
 19  either of those things.
 20              So as it stands today, the answer is no,
 21  and if that term changed, then the answer would be
 22  yes, and I do not see any significant legal
 23  obstacles to that term changing if it were clear
 24  that it was all just considered a big access
 25  control, and the change could be made with impunity.
 26              MR. NEAL:  I think that we're working

                                                   PAGE 89
  1  with an array of technological control systems
  2  currently as we access and use electronic
  3  information.  Those are what I would describe as
  4  passive systems.  That is, they are domain driven,
  5  proxy server driven, password driven that enable an
  6  authorized user to get into an electronic file of
  7  information and to make appropriate uses of that
  8  information.
  9              And so that's one arena in which use has
 10  been defined, and it's more of the issue of the
 11  geography of use than the nature of the use in terms
 12  of the application of the technological control.
 13              And as I said earlier, and this will
 14  harken back to something that Arnie just said, as I
 15  look at the types of provisions that we're being
 16  asked to accept and which we're increasingly
 17  learning how to negotiate in our license proposals,
 18  I can see suggestions of where active technological
 19  controls will go in terms of the ability to not just
 20  embrace users as they enter, but to actually monitor
 21  and to act upon inappropriate uses even though in
 22  some cases those uses may be defined under fair use
 23  as appropriate and legitimate uses.
 24              We also find, going back to -- just two
 25  more quick points.  I believe as Arnie suggested
 26  that what is contained in law is very influential in

                                                   PAGE 90
  1  terms of the ability of libraries and universities
  2  and users to negotiate effectively with copyright
  3  owners.  What is respected and understood in law
  4  gives us a leg up in terms of advancing the
  5  interests of our users.
  6              A related concern, I think, is the cost
  7  of managing this environment as we face an array of
  8  technological controls, an array of license
  9  agreements, particularly in situations where we have
 10  collections of works and not individual works, and
 11  in those collections we have public domain material
 12  or links to public domain material that may be
 13  controlled technologically.  Then I think we've
 14  created a very different working environment for our
 15  users that might be not inappropriate, might be
 16  inappropriate for their exercising their fair use
 17  rights.
 18              MS. GOSLINS:  Okay.  I think I
 19  understand your response.  I just want to clarify
 20  that taking into account all of your concerns,
 21  you're not aware at the moment of circumstances
 22  where your librarians or professors are being forced
 23  to circumvent access control protections in order to
 24  make use of works.
 25              MR. NEAL:  No.
 26              MS. GOSLINS:  Okay.  This question may

                                                   PAGE 91
  1  have already been answered in a couple of different
  2  ways in this in the course of our discussion this
  3  morning, but as we listen to the range of concerns
  4  that the educational, library, and user community
  5  have, they seem to range from what I'm thinking of
  6  as sole source concerns in which material which is
  7  not available any other way is locked up and
  8  concerns about difficulty of access, restrictions on
  9  the amount of people that can use things at one time
 10  or, as you put it, just a quality concern of quality
 11  equals content plus functionality, and I'm wondering
 12  whether you think we should think differently or
 13  along a continuum about access control technologies
 14  that prohibit any use whatsoever or those that make
 15  uses more inconvenient or more difficult.
 16              MR. NEAL:  Could you state your question
 17  again?
 18              MS. GOSLINS:  Sorry.  There seems to be
 19  a range of concerns, and at one end there is the
 20  concern that there will just be no other way to get
 21  certain materials if this prohibition is enforced
 22  without an exemption, and at the other end it's that
 23  it will be a lot more inconvenient and difficult to
 24  make use of materials if there is not an exemption
 25  to the prohibition, and I would just like a little
 26  information as we try and balance the concerns that

                                                   PAGE 92
  1  we hear expressed what you think our attitude should
  2  be to this continuum, whether we should pay more
  3  attention and give more weight to this sort of sole
  4  source type of concerns and what our perspective
  5  should be on concerns about increased inconvenience
  6  and difficulty in making use of works.
  7              MR. LUTZKER:  In some respects I think
  8  that that's an issue that can so complicate the type
  9  of consideration.  I mean, it's like I'm doing
 10  research and I'm in Washington, D.C., and I've got
 11  something that's on the CD-ROM, and I determine I
 12  can't access it, and I wouldn't know how to access
 13  it anyway, but I can't access, but it's available.
 14  Where is it available?  It's available in New Jersey
 15  somewhere.  Nowhere in the Washington area is that
 16  document available.  It's available in New Jersey.
 17              It's inconvenient for me to go to New
 18  Jersey.  So, you know, that's one thing, but let's
 19  say it's available in Baltimore or in, Suitland.
 20  The notion of convenience or inconvenience is really
 21  a side issue and not the nub of what we're at.  The
 22  question is in exercising fair use rights, do I have
 23  certain rights with respect to this particular work
 24  as you will define this category.
 25              And I think the notion of convenience or
 26  inconvenience can tend to be a matter of distance.

                                                   PAGE 93
  1  It can be a function of cost in some respects, and I
  2  think that's traditionally -- I mean if it becomes
  3  part of the overall analysis and it becomes a
  4  factor, but I don't think it should be a defining
  5  factor.
  6              MS. GOSLINS:  I understand you.  It
  7  seemed to me that your proposal did make it a
  8  somewhat defining factor, that one of the criteria
  9  that should be included in defining a class of works
 10  is whether the content was available, was --
 11              MR. LUTZKER:  Ready availability, right.
 12              MS. GOSLINS:  Whether it was readily
 13  available, and it seemed that that would require
 14  whoever it was that was going to make use of the
 15  work to make judgments about what readily available
 16  meant, and that, you know, the difference between
 17  Baltimore or New Jersey would then become relevant.
 18              MR. LUTZKER:  As I said, I don't think
 19  it is a completely irrelevant issue, but I don't
 20  think it is the defining issue.  I think it can be
 21  part of the overall mosaic.
 22              MR. NEAL:  I guess I don't see sole
 23  source provider and inconvenience being on the same
 24  continuum.  I think they are distinctive issues that
 25  you need to think about as you deliberate this
 26  situation.

                                                   PAGE 94
  1              The sole source provider condition in
  2  terms of what we acquire and provide access to in
  3  libraries is overwhelming.  The overwhelming
  4  majority of the resources that we provide access to
  5  and acquire are available from a single source, and
  6  that lack of a competitive marketplace does
  7  influence the type of access that is enabled and the
  8  price that we pay, and I would argue eventually the
  9  types of technology controls that we might
 10  encounter.
 11              I also think that you also have to
 12  consider, but not in competition with the issue of
 13  sole source provider, the convenience question.
 14  Convenience might be issues of cost.  They might be
 15  issues of time.  They might be issues of quality,
 16  and I think one always is looking at those three
 17  factors in making choices in one's life.
 18              I'd like to reactivate my concern about
 19  the difficulties faced by poor communities in terms
 20  of their ability to pay, and by poor communities in
 21  terms of their ability to rally the necessary
 22  expertise both in terms of legal issues and
 23  technological issues to deal with these types of
 24  situations that I think we'll be confronted with.
 25              As I argued with UCITA and as I will
 26  argue here, the digital divide issues are more than

                                                   PAGE 95
  1  issues of connectivity.  They have legal and
  2  economic components to them that we need to deal
  3  with, and I believe this is front and center a
  4  digital divide question that we're dealing with
  5  here.
  6              PROF. COHEN:  A couple of things.  On
  7  the question of what is inconvenient, it seems to me
  8  that a very important, though not necessarily the
  9  only consideration, has to be whether the work is
 10  available in your market without technological
 11  gateways, and sometimes available will have to
 12  include content plus functionality.
 13              As to technologies that prevent any use,
 14  I'm not sure I see those on a continuum with
 15  technologies that make use more inconvenient or
 16  maybe I see them all in a giant circle because you
 17  could have kinds and kinds of technology that
 18  protects against any use.  You could have a
 19  technology that simply is a password key, and once
 20  you have it, you can make any use of the work for
 21  all time, and that seems to me a kind of pure access
 22  control.  That's what Congress was considering in
 23  the first place, and the kind that in my opinion
 24  raises far fewer ongoing fair use problems because
 25  it doesn't seek after you've purchased the key and
 26  gotten lawful access to regulate ongoing use in any

                                                   PAGE 96
  1  way. Or you could have technology that prevents any
  2  use on an ongoing basis, and that in my opinion
  3  raises enormous fair use problems.
  4              MS. GOSLINS:  Okay.  Just one final
  5  question.  Actually mostly for Arnie.
  6              You stated in your testimony that from
  7  your experience in negotiating 1201 you are certain
  8  that 1201 was not intended to be a back door to
  9  database protection, and I'm sure you noticed in a
 10  lot of the comments there have been recommendations
 11  for using databases as a class of works that might
 12  be considered for exemption from the 1201 provision.
 13              So I'm just curious to hear you think
 14  through this a little bit more.  How should we think
 15  about works or access control technologies which
 16  protect indiscriminately copyrightable content and
 17  non-copyrightable content?  I mean, the easy example
 18  here is databases.
 19              MR. LUTZKER:  Yeah. I think it's clear,
 20  and there's some language difference between, you
 21  know, the A and the B sections, but it's clear that
 22  1201(a) with respect to the prohibition we're
 23  focusing on covered works protected under the title
 24  and I can't say abstractly whether a database is or
 25  is not protected under the title.
 26              MS. GOSLINS:  Well, let's just assume

                                                   PAGE 97
  1  for a second that we're talking about a database
  2  that has copyrightable elements of at least
  3  selection arrangement and cooperation and also
  4  material that is not protected by copyright, like
  5  court cases or --
  6              MR. LUTZKER:  Well, it goes to the
  7  question of what is the work.  Is the entire
  8  database the work or are the elements of it the work
  9  or works, if you will, an accumulation of works?
 10              And there's where I think, again
 11  fundamentally this provision should not prevent
 12  people from getting access to data that is not
 13  protected by copyright law.  Now, where you merge
 14  unprotected and protectable elements, it is a
 15  practical difficulty of saying, in terms of writing
 16  a regulation that would apply to a situation like
 17  that -- that's why I think use becomes an acceptable
 18  approach on your end.
 19              You can say that, there are certain
 20  accesses that can be made and certain accesses that
 21  can't be made, and if you are accessing works that
 22  are not protected by this title, that ought to be
 23  allowed.
 24              MS. GOSLINS:  But if I circumvent Lexis
 25  nexus access controls, how is anybody supposed to
 26  know or how are we supposed to write a rule that

                                                   PAGE 98
  1  distinguishes between whether I'm circumventing it
  2  to use their search engine and read the head notes
  3  or to read the text of Feist?  How do we draw that
  4  distinction?  How does anybody draw that
  5  distinction?
  6              MR. LUTZKER:  Well, I think it becomes
  7  incumbent upon -- I mean, if you don't exempt that,
  8  let's say there's nothing, and people are going to
  9  go out and they're really going to circumvent or
 10  they're not.  Okay?  Most institutions will comply
 11  by whatever the law is.
 12              If people go ahead and circumvent, so
 13  that in other words they've now entered this no
 14  man's land, how are the proprietors going to
 15  determine who they are?  What are the mechanisms in
 16  place for them to determine whether or not a
 17  circumvention has occurred which is a violation of
 18  the statute?
 19              I think the problems exist there
 20  concurrently, and I'm not connecting in that sense,
 21  I see, but --
 22              MS. GOSLINS:  That just seems to me as a
 23  practical problem of the copyright owner as opposed
 24  to when we're thinking about a product that is both
 25  protected by copyright and under this title and not.
 26              MR. LUTZKER:  I think fundamentally

                                                   PAGE 99
  1  there needs to be an acknowledgement through the
  2  Office, through the Library in these regulations
  3  that if a work is not protected under the title, it
  4  is outside the scope of this criminal-civil
  5  provision.   Okay?
  6              If it is a use oriented exception, uses
  7  that are outside dealing with non-copyrightable
  8  material are not a violation of the section.  If the
  9  use that is made is of protected material and
 10  there's not otherwise an acceptable basis for using
 11  it, then it would be a violation.
 12              PROF. COHEN:  I'd add that technologies
 13  aren't static here, and that's really an important
 14  thing to remember.  It's causing us an enormous
 15  amount of grief even today, and to pick up on
 16  something Arnie started out with, if there is no
 17  exemption because of the fear that someone might
 18  really want those excellent copyrightable headnotes,
 19  then there is no exemption, period.
 20              If the library has one print copy of the
 21  reporter down somewhere in the basement in a several
 22  thousand student school, then there's effectively no
 23  exemption, and that particularly where the
 24  underlying content is U.S. government public domain
 25  works is simply unacceptable.
 26              A rule that says you have to look at the

                                                   PAGE 100
  1  circumstances of the use might well encourage the
  2  content provider to develop better technologies that
  3  make it easier to make the sorts of uses that have
  4  to be permitted, and that in my view is a good
  5  thing.
  6              MS. PETERS:  Charlotte.
  7              MS. DOUGLASS:  Yeah, I have a couple of
  8  quick questions.  You've been talking about
  9  potential adverse effects on public uses of
 10  copyrighted works, and I just would like to know if
 11  there is any other reason.
 12              Could there be any other reasons except
 13  circumvention that might mean that there really
 14  isn't an -- let me start again.
 15              When you try to prove some things, you
 16  might want to prove -- what we have to do is decide
 17  whether the prohibition on circumvention causes
 18  adverse effects.  So what I'm trying to get at is
 19  whether there are any other reasons besides the
 20  prohibition on circumvention that might account for
 21  the adverse effects.
 22              MR. NEAL:  I'm not understanding the
 23  question.
 24              PROF. COHEN:  Well, do you possibly mean
 25  the person is poor and couldn't pay for access to
 26  the work anyway?  Because that could very well be a

                                                   PAGE 101
  1  reason, but our society has historically had an
  2  answer to that, which is the public library.  So the
  3  copyright system is bound up with those other
  4  factors at every level.
  5              MS. DOUGLASS:  I'm just trying to hone
  6  in on things caused by the prohibition on access
  7  controls, prohibition on circumvention of access
  8  controls, and when in the final analysis Congress is
  9  going to say, "Have you answered the question that
 10  these things were caused by the prohibition on
 11  access controls, or there might have been some other
 12  causes?"
 13              And if there might have been some other
 14  causes, then that's not going to meet what Congress
 15  has asked us to do as I see it.
 16              PROF. COHEN:  It is not my reading of
 17  this statute that Congress has asked you to
 18  determine whether the implementation of access
 19  controls is a but-for cause of the adverse effects.
 20  It is my reading of the statute that Congress has
 21  asked you to determine whether after the
 22  implementation of access controls users are
 23  suffering adverse effect that they were not
 24  suffering previously, and the implementation of
 25  access control can be one cause of that, but it's
 26  not my reading of the statute that it needs to be

                                                   PAGE 102
  1  the only cause.
  2              And the reason that that's not my
  3  reading of the statute is because the implementation
  4  of access controls is part of -- it sounds grandiose
  5  -- but a new economic order or an attempt to impose
  6  a new economic or new licensing order within this
  7  copyright world, and a lot of causes are linked.
  8              Now, one could say, "Well, you library
  9  and educational people, you are dinosaurs, and you
 10  are resisting this new economic order."  I think
 11  that Congress clearly provided for that resistance,
 12  but more importantly, I think that this is not about
 13  whether someone's a dinosaur or not, but whether
 14  libraries as such are going to be able to continue
 15  to exist, and the implementation of access control
 16  technologies is one cause of a chain of developments
 17  that might prove troubling in that regard, but need
 18  not be the sole cause.
 19              MS. DOUGLASS:  Another question I have
 20  is to Mr. Neal, I believe, or anybody can comment,
 21  and this may be the least of your concerns, but
 22  before the implementation of the DMCA, there were
 23  some comments made during and around the negotiation
 24  of the two WIPO treaties, which said that one of the
 25  objectives was continuing availability of works, and
 26  that another objectives was to permit easy access to

                                                   PAGE 103
  1  authorized uses.
  2              And I wonder if you would care to
  3  comment on the international effect of what happen
  4  if these measures, anti-circumvention measures came
  5  into being without exemption.  Do you have any just
  6  general comment?
  7              MR. NEAL:  I feel like I'm at my Ph.D.
  8  orals
  9              (Laughter.)
 10              MR. NEAL:  I was a participant at the
 11  WIPO treaty discussions in Geneva lo those many
 12  years ago, and among the many issues that we
 13  wrestled through there were issues of harmonizing
 14  the world's approach, the national approaches to
 15  changes in the electronic or in the information
 16  environment with changes in copyright law and
 17  recognizing that the movement of information across
 18  borders was a pressing reality that we needed to
 19  deal with.  And so that inspires us to think about
 20  the very question that you're raising here.
 21              The second thing we recognized is that
 22  the concept of fair use with its broad exceptions
 23  and limitations to copyright ownership rights is a
 24  concept which is perhaps most aggressively embraced
 25  in law in the United States.  There may be
 26  comparable concepts or words in other legal national

                                                   PAGE 104
  1  copyright language, but not at the same level and
  2  not with the same perhaps consistent application
  3  over time, and therefore, we worked -- at least the
  4  fair use community as I would define it -- worked
  5  very hard in Geneva to educate and work with other
  6  representatives from around the world to look at
  7  fair use as an important global concept to be
  8  adopted.
  9              And although we were not successful in
 10  integrating the concept or the terminology of fair
 11  use into the body of the treaty, it was, in fact,
 12  embraced in the preamble to the treaty and,
 13  therefore, I think a very important step forward.
 14              So I think an important aspect of what
 15  you say is that there is at least an increasing
 16  international recognition of the importance of
 17  limitations and exceptions, and that fair use did
 18  enter I presume for the first time -- and I look to
 19  Marybeth to confirm that -- at least for the first
 20  time in my experience entered in international
 21  treaty the terminology "fair use."
 22              And so I thought that was an important
 23  breakthrough, and I hope that the rest of the world
 24  begins to catch up with us before we lose it, so to
 25  speak.
 26              MR. LUTZKER:  Charlotte, if I could

                                                   PAGE 105
  1  return to your first thing, I was thinking about
  2  that, and at least from my perspective I want to
  3  make clear that one could say it is not the
  4  technological measures that create the adverse
  5  effects.  It's the contract.  It's the license that
  6  creates the adverse effects, and I think I would
  7  want to separate that and say, in effect, that the
  8  contract terms are the contract terms.  If libraries
  9  negotiate and they have certain limitations which
 10  are agreed to in respect of a license, that's the
 11  deal, and that's the way they use it, and that's
 12  what they say that's how they use it.
 13              But the adverse effects that the
 14  technology imposes are, in a sense -- even if they
 15  enforce contractual terms between licensed parties,
 16  I reiterate we're dealing with non-licensed,
 17  unrelated parties, in effect.  I mean there might
 18  have been prior agreements between them in the past,
 19  but it is in an environment where there is no
 20  license.
 21              And so if you think of the adverse
 22  effect being really caused by the license and not
 23  the technology, the technology is really in license
 24  terms.  I think you're not looking to the ultimate
 25  concern that we're pressing.
 26              MR. NEAL:  I want to draw an important

                                                   PAGE 106
  1  distinction at least in my mind between negotiated
  2  licenses where parties have an opportunity to go
  3  back and forth to reach terms of agreement on how
  4  information will be used and non-negotiated
  5  licenses, which are increasingly part of the
  6  electronic Internet world in which we live and where
  7  click on and shrink wrap approaches, I think --
  8  represent increasing array of agreements for which
  9  there's not an opportunity to negotiate, and I think
 10  we need to draw that distinction.
 11              I'm amazed at the number of on-line
 12  licenses that I'm presented with where, rather than
 13  having to browse down through the text to which I am
 14  supposedly agreeing to the buttons that I'm expected
 15  to click at the bottom of all this information,
 16  they're now presented at the top with the
 17  assumption, well, you don't want to read it anyway.
 18  So let's get you to agree right up front, or they're
 19  buried.  The agreements are on a screen, and you
 20  have to go to a second or third screen to actually
 21  read the text.
 22              So there's a built in assumption here, I
 23  think, increasingly in the on-line world that the
 24  nonnegotiated license arrangement will not work a
 25  lot more, and we need to be concerned about that.
 26              MS. DOUGLASS:  Thank you.

                                                   PAGE 107
  1              MS. PETERS:  Okay.  Rob.
  2              MR. KASUNIC:  Well, I'll try and keep my
  3  questions brief.  I know you've been up there for a
  4  long time.
  5              MS. PETERS:  Hopefully they didn't drink
  6  as much water as I did.
  7              (Laughter.)
  8              MR. KASUNIC:  I did want to start off
  9  with follow up on the discussion on the thin
 10  copyrights and the protection of information that is
 11  only thinly protected under Title 17.
 12              And there was a statement that that
 13  might be even more important since if all
 14  information is becoming, as you mentioned Mr. Neal,
 15  intermingled into collections to a certain extent,
 16  or compilations, then this distinction, how we deal
 17  with this area is important.
 18              If the technology used by the copyright
 19  owner is applied at this point in time, with the
 20  current state of the technology to both
 21  copyrightable and non-copyrightable elements of
 22  works, who should bear the burden of the
 23  indiscriminate use of that technology? --On not
 24  protecting, exclusively, the copyrightable elements,
 25  but placing access controls on the broad
 26  compilations or databases that encompass both

                                                   PAGE 108
  1  copyrightable and non-copyrightable elements?
  2              PROF. COHEN:  Who should bear the burden
  3  in a court proceeding?
  4              MR. KASUNIC:  Who should bear the burden
  5  under Section 1201(a)(1) in terms of the use of that
  6  technology?
  7              If the technology, as we have it right
  8  now, is not able to discriminate between particulars
  9  (conceivably there could be a time when the
 10  technology could be applied only to copyrightable
 11  elements as opposed to the overall work).  Who
 12  should, under the current state of technology as we
 13  have it under 1201(a)(1) --
 14              MR. LUTZKER: I think as Julie helped me
 15  out on the database discussion, I think it makes
 16  logical sense that as we look at these as being more
 17  sophisticated technological measures imposed by the
 18  owners, creators, sellers or licensors of the
 19  material, that it behooves them to work through the
 20  structure that gives them maximum protection for the
 21  things that need protecting and in recognition of
 22  the fact that there may be, in a sense, use rights
 23  with respect to portions of that material; that
 24  those be made at least accessible in a way that
 25  doesn't open up the whole shop.
 26              I mean, right now if all you have to do

                                                   PAGE 109
  1  is enter your initials and that becomes your pass
  2  code to get into the whole universe of stuff, and
  3  half that stuff is public domain and government
  4  works and half of that stuff is proprietary, then
  5  obviously the dilemma is, well, if you let them in
  6  they can go to the public domain, but they also go
  7  to the other stuff.
  8              But I would think that the parties that
  9  are licensing the stuff need to determine and use
 10  technological measures if they want to enforce this
 11  provision. They have other ways of protecting their
 12  interests because, the provision is not in force
 13  right now, and they have ways of protecting the
 14  provision.
 15              The other day or yesterday, Monday
 16  afternoon there was a very entertaining presentation
 17  by a guy from Silver Platter.  They've been doing
 18  this stuff for 20 years, and they presumably have
 19  been thriving, and this is a new additional benefit
 20  for them, a new right, if you will, to control and
 21  create, of burden the responsibilities, and if they
 22  want to take advantage of it without sort of
 23  diminishing what the public has a right to, then
 24  they ought to figure out the measures and allow it.
 25              I don't know whether I'm creating an
 26  impossible task.  I don't know the technology to

                                                   PAGE 110
  1  say -- I don't know whether any of us can.  I mean,
  2  get the engineers in to explain how you could do
  3  that, but I have enormous faith that it can be done
  4  or if it's economically desirable it will be done.
  5              PROF. COHEN:  I think the burden of
  6  proof is met by a showing that the technologies
  7  apply to copyrightable and uncopyrightable elements
  8  alike.  That's precisely the problem.
  9              MR. KASUNIC:  I'm sorry.  I didn't hear
 10  the last part.
 11              PROF. COHEN:  I said I think the burden
 12  of proof is met by a showing that the technology is
 13  applied to both copyrightable and uncopyrightable
 14  elements alike.  That is precisely the problem.
 15              MR. KASUNIC: What if protections go
 16  beyond just the technological control measures, go
 17  beyond protecting simply access, and merge the
 18  protection into access and use?
 19              MR. LUTZKER:  Well, in theory, Section
 20  1201(c)(1) addresses the notion that there's nothing
 21  with respect to use.  This is one of the difficult
 22  things to absorb in the statute.  On the one hand
 23  you have the provision that nothing in here will
 24  affect the rights that are already existing, and
 25  they specifically mention fair use.  So aren't you
 26  protected?

                                                   PAGE 111
  1              And it becomes a question of what is
  2  access, what is use.  If you're in and you have
  3  access, and there may be separate questions of
  4  contract, but the fair use provisions and other
  5  provisions are in play when you're using the work.
  6              And, it's the difference, too, in the
  7  models of whether we use licensed material as
  8  opposed to purchased material, and one thing that
  9  struck me, and it came up in actually discussions
 10  during term extension, and the Register's office was
 11  deeply involved in many of those discussions.  I
 12  don't remember if it was actually in the
 13  negotiations or whatever, but it was a concept that
 14  if this licensing affords an opportunity to really
 15  assure real control over works, it's a way of
 16  eliminating many of the fair use issues that have
 17  cropped up over the course of years.
 18              Then, what's to stop publishers from
 19  instead of selling books with Borders Books -- it's
 20  a license. You open the book, and you're licensing
 21  to obtain a copy of a work.
 22              It sort of was a creative thought
 23  process that that engendered, but we're basically in
 24  a situation where in theory fair use is supposed to
 25  apply once you're using the work, subject to
 26  whatever license requirements there may be.

                                                   PAGE 112
  1              MR. KASUNIC: That brings me to a broader
  2  question, following up on some of the discussion of
  3  how we define access and what that relationship is
  4  with use.  For instance, in the example that David
  5  raised about the expired CD, that after expiration,
  6  which is a license restriction on the CD, is one
  7  allowed to re-access it without violating
  8  1201(a)(1)?
  9              Is secondary access within the scope of
 10  consideration of what Congress intended in
 11  1201(a)(1) or is it not? We see a lot of discussion
 12  in the legislative history about black boxes and
 13  about breaking into a locked room.  How does
 14  secondary access fit into that?  In 1201(a)(1) are
 15  we concerned with secondary access or was the intent
 16  different \226 the meaning being initial access of a
 17  work?
 18              MR. LUTZKER:  Well, we had a lot of
 19  discussion as a way, and I think it was an effort at
 20  compromise on the library side to suggest some
 21  initial lawful access, and we have it in many of the
 22  current proposals.  It adds a Patina of fairness I
 23  would say to the analysis, and that's why it is part
 24  of it.
 25              The question, and I think Charlotte had
 26  asked this, and I don't know precisely the

                                                   PAGE 113
  1  formulation about whether a work is published or
  2  unpublished, but a work is a work under copyright
  3  law.  I mean you've got to look at this as what does
  4  the copyright law say.
  5              The copyright law grants certain rights
  6  to owners of works, and they're spelled out in 106,
  7  and if they're not in 106, they don't exist, and
  8  then you go to the limitations in 107 to 121 or
  9  whatever the last number is now, and that's how you
 10  define what the rights of ownership are.
 11              And under those circumstances you can
 12  then see that the fact that there was a prior
 13  license or arrangement may or may not have relevance
 14  to whether or not you can make a fair use of it.
 15  Particularly in an electronic world and the worrying
 16  about theft and piracy and the like, again, it adds
 17  credibility to those who have had a license, but I
 18  don't know whether you should necessarily be
 19  penalized or not penalized having had that access.
 20              I think in part the concept of the
 21  access helps so that you know what's inside the work
 22  to know whether or not you need to get to it. Julie
 23  can tell me never having had access to something
 24  that this is a good work that I might use in some
 25  research, but there's more credibility if you've
 26  already had that understanding.

                                                   PAGE 114
  1              Separately a question came up.  Well, if
  2  you have access, just make a copy of it, you know,
  3  while you have the access, and that may or may not
  4  have license implications, but then it becomes an
  5  enormous burden in an electronic environment.  The
  6  whole purpose is you don't have to have a copy.  You
  7  can access it visually.
  8              MR. KASUNIC:  But then am I
  9  understanding correctly that we're in some ways
 10  defining access in terms of the use then of the
 11  work?
 12              MR. LUTZKER:  I think that is one of the
 13  great dilemmas that I'm glad you have, but access
 14  and use merge.  That's why when in the original
 15  library comments we talk about access and use that
 16  there's an intertwining, and people can have access
 17  either for a day and somebody can have access for a
 18  longer period, but access really converts to the
 19  ability to use the material, to view it, to see it,
 20  and the technology now to the extent it enforces
 21  access, it does merge in enforcing usage.
 22              MR. KASUNIC:  Well, that is our trouble
 23  here, and that's why I'm trying to focus in on it to
 24  try to see how we break those apart. Since Congress
 25  didn't prohibit the conduct of circumventing for the
 26  use of the Section 106 rights, but only prohibited

                                                   PAGE 115
  1  the conduct of circumventing for access.  So how do
  2  we pull these apart in this situation and in some
  3  way limit that definition of access so that it
  4  doesn't involve the 106 rights and the use rights?
  5              MR. LUTZKER:  That's what we've tried to
  6  provide.
  7              MR. NEAL:  Moving down a tough path, I
  8  know, here again.  CD-ROMs.  CD-ROMS.  There's no
  9  such thing as a CD-ROM.  CD-ROMs come with books.
 10  So we stick them in the back, and we put them on the
 11  shelf.  CD-ROMs come as works in themselves.  So a
 12  person picks it up off the shelf or requests it over
 13  a desk, and they take it to a reader and they put it
 14  in and they use it.
 15              CD-ROMs increasingly are a set of
 16  information which is linked to a dynamic Web site.
 17  So some of the information that's on the CD-ROM, and
 18  a lot of the information is related information as
 19  proposed and presented in a Web environment.
 20              And historically and perhaps to a lesser
 21  extent CD-ROMs were networked.  That is, we put them
 22  up on a piece of equipment that enabled us to
 23  integrate and present them to users in a broad
 24  geographic way.  So you didn't have to be physically
 25  at a work station.  You could be anywhere within the
 26  domain and access that information.

                                                   PAGE 116
  1              So CD-ROM already has all kinds of
  2  technological complexities and diversities built
  3  into it and how it relates to other formats of
  4  information.
  5              When we use CD-ROMs, they very often
  6  involve a negotiated license, and in some cases they
  7  involve a nonnegotiated license because we go into a
  8  store, we buy it, we open it up, and say, "Dah, dah,
  9  we have agreed to these terms.  We didn't have a
 10  chance to tell you what we thought we were going to
 11  do with this and reach some agreement on it, but I
 12  opened the package and, therefore, I agreed to these
 13  terms."
 14              Now you can say, "Okay.  You don't like
 15  those terms.  Bring it back.  Bring it back to the
 16  store and don't use it."  That's an interesting
 17  UCITA discussion.
 18              But when we negotiate access to a CD-ROM
 19  and there is an issue related to its time frame, we
 20  don't permit persistent -- how long that is.  I mean
 21  we stop using it.  We don't allow systematic how
 22  much.  We don't allow widespread, where.  So we take
 23  down the where, the how much, and the how long
 24  capabilities.
 25              Now, we may have if we were smart, we
 26  may have negotiated that so that we can hold onto

                                                   PAGE 117
  1  that CD-ROM and keep it somewhere in our collection
  2  so that we may not enable systematic widespread use.
  3  We may be able to enable the checking of that for
  4  certain educational and research purposes.  Most of
  5  us have not thought about that in our negotiations
  6  for these types of things.
  7              So I don't know if that helps, but that
  8  puts it in a much more complex framework than it
  9  just being a CD-ROM.
 10              MR. KASUNIC:  Well, the license then is
 11  creating terms on how you can access it, for how
 12  long, how many times, how many users, but is that
 13  that's a contractual provision.  That's not
 14  protected under 1201(a)(1) -- that you have a
 15  licensing provision in there.
 16              We're looking at the technological
 17  controls that are protecting the access to it.  So
 18  if that license were breached and we were to ignore
 19  that license, how would you define whether you can
 20  circumvent just the technological control? That the
 21  number of times or re-accessing it is something
 22  that's within the terms of the license not now being
 23  considered, but, rather, just in terms of
 24  considering what is prohibited under 1201(a).
 25              MR. LUTZKER:  Well, all of the licenses
 26  are going to say, "By accepting this contract you

                                                   PAGE 118
  1  agree not to exercise your anti-circumvention rights
  2  as provided under 1201(a)(1) as recommended to the
  3  Librarian by the Copyright Office." You can predict
  4  that, but I can tell you by having that exception
  5  and limitation built into law, it gives us an
  6  enormous leg up in those contract negotiations.
  7              PROF. COHEN:  I would add that it is not
  8  the function of federal copyright law to prevent
  9  people technologically from breaching their
 10  licenses, and if the law decides that everything's
 11  access, that's in fact what you're doing, and that's
 12  backwards.
 13              MR. KASUNIC:  Okay.  One final thing. In
 14  terms of the definition that was being discussed, if
 15  I can just find this, that ``a work that was lawfully
 16  acquired by a user or users and an institution'',
 17  being a potential exemption, how do we deal with
 18  that definition? Or, what is the scope of that
 19  definition of ``lawfully acquired''?  Is that
 20  something that is just purchased or are we also
 21  talking about where something is licensed, where
 22  someone has a license and has initial access to that
 23  work?  Is that then a lawful acquisition that's, at
 24  that point, the initial access of it?
 25              PROF. COHEN:  It seems that initial
 26  access has to be a factor in differentiating between

                                                   PAGE 119
  1  what is access and what is use, whether the
  2  transaction is styled as a purchase of a copy or as
  3  a license.
  4              MR. KASUNIC:  So whether something is
  5  ``lawfully acquired'' encompasses both a licensee of
  6  the work or someone who purchases.
  7              MR. LUTZKER:  Yeah, I think the concept,
  8  and, again, this was designed to sort of understand
  9  the urgencies of the marketplace and to try to
 10  create a fair modeling of what is going on.  If a
 11  purchase or license has been made or if other
 12  definitions of what constitutes lawful access, I
 13  wouldn't say that those two would necessarily be the
 14  full parameters.
 15              I mean if I go into a library, I haven't
 16  necessarily purchased -- the library may -- but I
 17  haven't necessarily purchased or licensed the
 18  materials, but I still may have a lawful access at
 19  that point in time.
 20              And so I think it's intended to be
 21  distinguished from theft and piracy, and again, it
 22  gives a sense that we are in a regime that is
 23  bounded by laws and bounded by some degree of
 24  fairness.  I think I want to clarify because I don't
 25  know whether I've been -- it's clear because you've
 26  got negotiated licenses, that's the nonnegotiated

                                                   PAGE 120
  1  type.  I think Jim's comments are particularly
  2  pertinent in how to evaluate, and I haven't yet
  3  thought through sort of exactly how I would suggest
  4  even modifying the things that I've outlined because
  5  as you get to hearing, I can see different things.
  6              But I can see distinctions between the
  7  negotiated license, the nonnegotiated license as you
  8  make certain assessments into the particular classes
  9  of works that users should be able to make use of,
 10  but I think there are clear distinctions between the
 11  nonnegotiated license situation and the license
 12  situation.
 13              MR. KASUNIC:  Thank you.
 14              MS. PETERS:  Thank you.
 15              I want to thank the panel.  This sets a
 16  record.  We have not kept a panel anywhere near as
 17  long.  So obviously you presented testimony that was
 18  very relevant that helped us a lot.
 19              MR. NEAL:  Where do we submit our per
 20  diems?  No.
 21              (Laughter.)
 22              MS. PETERS:  For those of you who are
 23  appearing at two o'clock, you have one hour and 20
 24  minutes to find restrooms and lunch.
 25              Thank you very much.
 26              (Whereupon, at 12:40 p.m., the above-

                                                   PAGE 121
  1  entitled hearing was recessed for lunch, to
  2  reconvene at 2:00 p.m., the same day.)

                                                   PAGE 122
  1            A-F-T-E-R-N-O-O-N  S-E-S-S-I-O-N
  2                                          (2:00 p.m.)
  3              MS. PETERS:  Welcome to the last session
  4  of the D.C. hearings on our Section 1201(a)(1)(A)
  5  rulemaking.
  6              And I notice that our audience has
  7  wandered off, but everybody will hear your words by
  8  going to the Internet and see them.
  9              This afternoon our witnesses are Bernard
 10  Sorkin, who represents Time Warner and the Motion
 11  Picture Association of America, and Richard
 12  Weisgrau, accompanied by Victor Perlman who
 13  represents the American Society of Media
 14  Photographers, and why don't we start with you,
 15  Bernie?
 16              MR. SORKIN:  Thank you.
 17              I appreciate the opportunity of being
 18  here to testify before you in the hope of convincing
 19  you that we are not on the brink of the end of
 20  Western civilization as we know it.
 21              I appear here for Time Warner, Inc., and
 22  the Motion Picture Association of America, Inc.
 23              Both Time Warner and the members of the
 24  Motion Picture Association depend for their
 25  existence on adequate and effective copyright
 26  protection.  They are also vitally interested in the

                                                   PAGE 123
  1  healthy maintenance of the fair use doctrine.  That
  2  doctrine makes it possible for them to create and
  3  disseminate factual and nonfactual, textual, audio,
  4  visual, and audiovisual works.
  5              I shall state the conclusion of my
  6  submission here, at the risk of reducing the tension
  7  in the room.  There has been no evidentiary showing
  8  of any realistic likelihood of any adverse effect on
  9  anyone's ability to make noninfringing uses of any
 10  particular, quote, class of works, unquote, when
 11  Section 1201(a)(1)(A) becomes effective.
 12              Accordingly, there should be no delay in
 13  the effective date of that section.  Interested
 14  parties may, of course, put together such evidence
 15  as they believe relevant and persuasive for
 16  submission in rulemaking proceedings during the
 17  successive three-year periods following the
 18  effective date of Section 1201(a)(1)(A), as provided
 19  in Section 1201(a)(1)(C).
 20              Such submissions would at least have the
 21  benefit of being made in the context of an existing
 22  anti-circumvention prohibition instead of dealing
 23  with, as the comments seeking exemptions now do, the
 24  chimera of alleged consequences of a statute not yet
 25  in effect.
 26              It has become almost trite to say that

                                                   PAGE 124
  1  digitization presents extremely serious problems for
  2  copyright protection.  There are, of course, many
  3  benefits to copyright owners, as well as to the rest
  4  of society.
  5              Nevertheless, the fact that copyrighted
  6  works may be speedily and cheaply duplicated in
  7  unlimited quantities and without any degradation of
  8  quality even when copies are made from copies, the
  9  fact that digitized works may be easily and cheaply
 10  transmitted throughout the world by the push of a
 11  computer button, and the fact that digitized works
 12  may be easily and cheaply modified have created a
 13  qualitative rather than merely a quantitative
 14  difference in the dangers faced by copyright.
 15              And accordingly in the defenses required
 16  for copyright protection.  In this regard it is
 17  important to recognize that adequate defense of
 18  copyright is needed not only to protect the works
 19  themselves and the interests of copyright owners,
 20  but also to protect those interested in creating and
 21  operating the physical infrastructure which depends
 22  on copyright works for its prosperity.
 23              These increased dangers were recognized
 24  by the approximately 160 member nations of the world
 25  intellectual property organization that agreed in
 26  Geneva in December 1996 to two treaties intended to

                                                   PAGE 125
  1  provide protection in digital and on-line
  2  environments.  These treaties were thought necessary
  3  to achieve adequate protection despite the recent
  4  passage of the Trips Agreement (phonetic) and its
  5  protections for intellectual property.
  6              So clear are the increased dangers to
  7  copyright resulting from digitization.  One of those
  8  treaties, the WIPO copyright treaty, includes in its
  9  Article XI the following:  "Contracting parties
 10  shall provide adequate legal protection and
 11  effective legal remedies against the circumvention
 12  of effective technological measures that are used by
 13  authors in connection with the exercise of their
 14  rights under this treaty or the Burn Convention, and
 15  that restrict acts in respect of their works which
 16  are not authorized by the authors concerned or
 17  permitted by law."
 18              That article is at the basis of the
 19  statutory provision, Section 1201(a)(1) of the
 20  Digital Millennium Copyright Act which was enacted
 21  to implement the U.S. requirements under the WIPO
 22  treaties.  It is pursuant to that statutory
 23  provision that this rulemaking proceeding was
 24  instituted, quote, to determine whether there are
 25  classes of works as to which users are or are likely
 26  to be adversely affected in their ability to make

                                                   PAGE 126
  1  noninfringing uses if they are prohibited from
  2  circumventing, end quote, technological measures
  3  that control access to copyrighted works.
  4              This being a rulemaking proceeding, its
  5  outcome must be based on evidence presented in the
  6  course of the proceeding.  Mere speculation is of no
  7  moment.  In that connection, the notice of inquiry
  8  itself points out that, quote, it is clear from the
  9  legislative history that a determination to exempt
 10  the class of works from the prohibition on
 11  circumvention must be based on a determination that
 12  the prohibition has a substantial adverse effect on
 13  noninfringing use of that particular class of works.
 14              The Commerce Committee ordered that the
 15  rulemaking proceeding is to focus on distinct,
 16  verifiable and measurable impacts, and should not be
 17  based upon de minimis impacts.
 18              Similarly, the manager's report stated
 19  that the focus of the rulemaking proceeding must
 20  remain on whether the prohibition on circumvention
 21  of technological protection measures, such as
 22  encryption or scrambling, has caused any substantial
 23  adverse impact on the ability to make noninfringing
 24  uses, and suggested that mere inconveniences or
 25  individual cases do not rise to the level of a
 26  substantial adverse impact.

                                                   PAGE 127
  1              The assertions about purported adverse
  2  effects flowing from the future effectiveness of
  3  Section 1201(a)(1)(A) are based on nothing more than
  4  speculation, and moreover, on speculation based on
  5  ill founded premises.
  6              One example is in the statement by
  7  Copyright's Commons that it shares, quote, the
  8  Library Association's concerns that access controls
  9  may, italicized "may," too easily become persistent
 10  use controls in the hands of publishers.
 11              Another example is the statement in that
 12  same paper that, quote, we fear that the anti-
 13  circumvention rules will be wrongfully used for
 14  improper commercial purposes and to block speech,
 15  closed quote.
 16              There they stand, completely free of any
 17  factual support.  Moreover, those seeking exemptions
 18  from application of Section 1201(a)(1) failed to
 19  consider a number of fundamental premises that
 20  should lay to rest these and the other speculations
 21  on which their papers are based.
 22              For one thing, at least for some time
 23  works will continue to be made available in analog
 24  formats and paper formats, that is, in ways not
 25  subject to the provisions of Section 1201, and
 26  accordingly, free from the concerns expressed in

                                                   PAGE 128
  1  those papers.
  2              I should say parenthetically that even
  3  motion pictures released on DVD about which so much
  4  vituperation was spilled in this proceeding have
  5  been and re continuing to be released on VHS and
  6  even, mirabile dictu, in 35 millimeter prints so
  7  that members of Copyright's Commons and of the
  8  library and educational communities can enjoy them
  9  in theaters.
 10              Secondly, and very fundamentally,
 11  copyright owners, distributors, and publishers are
 12  interested in the widest possible distribution of
 13  their works.  The Salinger case, which involved an
 14  author's seeking seclusion for himself and his
 15  works, is not an exemplar of the content owning
 16  community.
 17              Copyright owners, distributors, and
 18  publishers cannot exist and prosper by borrowing
 19  their works from public availability.  The assertion
 20  by Copyright's Commons that, quote, corporate
 21  copyright holders now seek to use the Digital
 22  Millennium Copyright Act's power of copyright to
 23  expand the monopoly on expression and restrict the
 24  public's use of their works is not only unsupported,
 25  but flies in the face of economic logic.
 26              There is a dramatic contrast between the

                                                   PAGE 129
  1  speculations of those seeking exemptions and the
  2  reality of a tax on copyright protection of the kind
  3  against which Section 1201 is intended to protect.
  4  One example of the latter is the hacking of the CSS
  5  technology intended to protect DVDs from
  6  unauthorized copying and access.
  7              Another example is the circumvention by
  8  stream box of the access control and copy protection
  9  measures that real networks affords to copyright
 10  owners.
 11              In short, while the expressed concerns
 12  about adverse effects are speculative and illogical,
 13  the threats to technological protections and to
 14  copyright are real and have already manifested
 15  themselves.
 16              Equally problematical is what the notice
 17  of inquiry calls a major consideration, quote, to
 18  determine how to define the scope of boundaries of a
 19  particular class of copyrighted works, unquote.
 20              The notice of inquiry quotes the
 21  Commerce Committee report to the effect that, quote,
 22  the particular class of copyrighted works should be
 23  a narrow and focused subset of the broad categories
 24  of works of authorship should be, that is,
 25  identified in Section 102 of the Copyright Act.
 26              Whether or not such a definition can be

                                                   PAGE 130
  1  articulated, none of the papers has succeeded in
  2  doing so.  Indeed, it seems clear that no matter how
  3  "class of works" is defined any exemption from the
  4  operation of Section 1201(a)(1)(A) for such a class
  5  will have the effect of removing the protection of
  6  that section from other works not intended to fall
  7  within the definition.
  8              In conclusion, it is with some
  9  puzzlement and even dismay that I regard the
 10  positions taken by the educational and library
 11  communities.  They, as much as Time Warner, the
 12  members of the Motion Picture Association and other
 13  content owners depend on and should encourage
 14  greater protection and greater availability of
 15  copyrighted works.
 16              Greater protection because in a digital
 17  environment it makes possible increased production
 18  of copyrighted works, as well as increased and
 19  speedier distribution; greater availability because
 20  it makes possible education and library services to
 21  a broader public by newly developed media.
 22              In helping to diminish piracy and other
 23  dangers to copyrighted works, access controls have
 24  and will increase the availability of a wide range
 25  of copyrighted works to grant exemptions from or
 26  otherwise weaken Section 1201(a)(1)(A), would have

                                                   PAGE 131
  1  the effect of discouraging production and
  2  distribution of copyrighted works, and particularly
  3  from making such works available in digital format.
  4              It seems clear, particularly in view of
  5  the complete lack of any factual support for
  6  delaying the effective date for Section
  7  1201(a)(1)(A) or granting exemptions from that
  8  provision, and particularly in view of the huge and
  9  irreparable damage that would be done to copyright
 10  by virtue of any such delay or exemptions, that law
 11  and logic require that there be no such delay or
 12  exemption at least at this time.
 13              After the statute has gone into effect
 14  five months from now, the interests that are opposed
 15  to the statute can make a real world assessment of
 16  its impact instead of the speculation proffered in
 17  this inquiry and as provided by the statute makes
 18  such submissions as they deem appropriate.
 19              Thank you.
 20              MS. PETERS:  Thank you.
 21              Mr. Weisgrau.
 22              MR. WEISGRAU:  Thank you.
 23              First, let me thank you for the
 24  opportunity to testify, and additionally I'd like to
 25  thank the Copyright Office for its recent efforts in
 26  making the registration system available to

                                                   PAGE 132
  1  photographers finally.
  2              MS. PETERS:  Finally.
  3              MR. WEISGRAU:  We do thank you for that.
  4              When I had small children, I used to
  5  read them a book, and it was called Simple Pictures
  6  Are Best, and it was a story about how a
  7  photographer started out to take a photograph of his
  8  two kids and then added the dog and then added the
  9  cat and then added the wife and then added the
 10  nieces and nephews and then added the plants and
 11  then added the broom, and the picture became so
 12  complicated that you couldn't tell what the subject
 13  was anymore.
 14              And as I sat here this morning, I began
 15  to say, "Gee, I wish everyone would subscribe to my
 16  own self-imposed rule, keep it simple, stupid,
 17  because I've just heard so much gibberish this
 18  morning that is not on point that it's almost not
 19  worth rebutting.  So I'm not going to take a lot of
 20  your time with that."
 21              I think the Register in her opening
 22  remarks said, quote, the purpose of this rulemaking
 23  proceeding is to determine whether there are
 24  particular classes of works as to which users are or
 25  are likely to be adversely affected in their ability
 26  to make non-infringing uses if they are prohibited

                                                   PAGE 133
  1  from circumventing technological access control
  2  measures.  I seem to think while that's a mouthful,
  3  it is quite clear.  I didn't hear anybody say
  4  anything today really that was relevant to this that
  5  made a persuasive argument.  In fact, the most
  6  persuasive argument I heard is by the gentleman who
  7  sat in the seat this morning.  Arnie and I -- sorry.
  8              MS. PETERS:  That's okay.
  9              MR. WEISGRAU:  Yeah.  -- when he said,
 10  "We cannot demonstrate adverse effect," and then
 11  five minutes later, and he's on the record saying
 12  that; five minutes later he says, "And this adverse
 13  effect to the extent that it does exist is caused by
 14  licensing, not access problems."
 15              So what are we sitting here for?
 16              However, we all have to earn our money.
 17  So we're going to make some comments here which are
 18  really legally based, and I do understand that Mr.
 19  Perlman is the ASMP's General Counsel.  He is a
 20  lawyer and an amateur photographer.
 21              I am a photographer and an amateur
 22  lawyer.  Therefore, it has fallen into my hands to
 23  make the legal argument because I can get away with
 24  more than he can, see.
 25              When we looked at the charge given to
 26  the Library of  Congress, we noticed the adverse

                                                   PAGE 134
  1  effects rule.  We noticed the class of works, and we
  2  also noticed a thing called a term "other such
  3  factors," that you can comment on other such
  4  factors.
  5              So I want to talk a little bit about
  6  factors about adverse risks to rights owners because
  7  I think that's adverse risk.  It doesn't all just go
  8  one way, and I'll elaborate on that.
  9              Victor pointed out to me this morning
 10  that on page 181 of the current Copyright Act in
 11  1201(c)(4), it says, quote, "Nothing in this section
 12  shall enlarge or diminish any right of free speech."
 13              I don't think you can read 1201(a) and
 14  ignore 1201(c), and I think that clearly there's a
 15  free speech issue here.  It seems to me that freedom
 16  of speech gives me the right to say what I want,
 17  where I want, when I want, and to whom I want, and I
 18  can also get paid for it if I want and someone is
 19  willing to pay.  Freedom of speech and free speech
 20  are obviously different.
 21              I frequently exercise my freedom of
 22  speech, but it is not for free.  Now, if you allow
 23  this circumvention of access controls, you can
 24  effectively force me to speak to parties to whom I
 25  do not wish to speak because I have said I will not
 26  speak this to anyone who doesn't pay me, and that's

                                                   PAGE 135
  1  my right, I believe, constitutionally.
  2              So I think that if you allow
  3  circumvention of access control, you effectively
  4  damage my freedom of speech rights.
  5              Additionally, I think that the
  6  Constitution and Fourth Amendment say that I have a
  7  right to be secure in my premises, person, papers,
  8  and effects, and not even the government of this
  9  country except in the rarest of circumstances can
 10  access my property without a warrant and due
 11  process.  Are we going to write a law now that says
 12  some people can break and enter and access my papers
 13  without due process?  Because that's effectively
 14  what you say.
 15              You have taken the lock off my door.
 16              If you take the lock off my door, then I
 17  think that you have really damaged me in another way
 18  because the Constitution and the 14th Amendment say
 19  I have the right to equal protection under these
 20  laws, and the moment anyone defines classes of works
 21  to which access controls can be circumvented, the
 22  moment you define the class of works, and I don't
 23  care how narrow they are or how broad they are, you
 24  have defined a class of rights owner and/or author.
 25              At that moment, you have effectively
 26  said this class of author/rights owner has rights

                                                   PAGE 136
  1  under the law, and this class does not have the same
  2  rights under the law.  I think that I'm entitled to
  3  equal protection under the law, and you can't define
  4  me as a class, which says you can circumvent my
  5  works, but you can't circumvent his.  So I think
  6  that there are some serious constitutional issues
  7  here which are our other concerns, and they go to
  8  the rights of people to be secure in their papers,
  9  have equal protection of the law, and speak to whom
 10  they want, and when they want and for a fee if they
 11  choose.
 12              Now, from our perspective here, what
 13  became very evident this morning is that the cat is
 14  out of the bag.  This is not an issue of access.
 15  What we heard today is that it is an issue of fair
 16  use, and I was amazed to sit in the back of this
 17  room and hear fair use described as a right.  I've
 18  always thought it was a criteria for evaluation to
 19  determine whether you could defend against a use for
 20  which you had no license and not a right.
 21              If it was a right, it would be clearly
 22  definable and everybody would have it automatically.
 23  So I don't see fair use as a right.  I see it more
 24  as a defense.
 25              What appears to me is that what we have
 26  seen here from our opposing parties is that they are

                                                   PAGE 137
  1  really upset because the world order is changing.
  2  Well, I ask this question.  Who said that libraries
  3  will exist forever?  I mean, it could be that the
  4  Internet is the library of the future.  I have a kid
  5  in graduate school and one in college, and they
  6  don't go to libraries anymore.  They just use the
  7  Internet.
  8              I kept hearing this morning that we have
  9  to facilitate fair use, and then I heard that the
 10  rights of copyright owners are defined in 106 and
 11  multiple sections thereafter, including 107, fair
 12  use.  I think that the rights of copyright owners
 13  are defined in 106, and what 107 does is say in
 14  certain instances you can ignore those rights if you
 15  fit these criteria, and it's a fact by fact basis.
 16              I just don't understand how fair use
 17  creates any argument or can be the basis of any
 18  argument for unauthorized access.
 19              If I have a brick and mortar photo
 20  gallery and on that gallery's walls I put
 21  photographs, I lock the door and I charge admission.
 22  I'm perfectly entitled to do that.  Would the
 23  Congress of the United States pass a law that said
 24  someone walking by the store, by the gallery can
 25  break the lock in order to come in just to see if
 26  there's something they want to buy?  I doubt it.

                                                   PAGE 138
  1              Then how can we even contemplate setting
  2  up any class of works to which individuals have a
  3  right to break the lock, walk in, and take a look
  4  around.  We cannot distinguish between the brick and
  5  mortar store and the Internet store.  It's not
  6  reasonable to do that, not in the changing
  7  technological environment.  Property is property and
  8  rights are rights, and the existence of cyberspace
  9  does not mean we have to have law that is founded on
 10  some type of ether that we don't need to breathe.
 11              I heard that we have to worry about
 12  students in China who have to be able to access
 13  information in the United States in the libraries.
 14  I mean last year it was distance learning.  Now it's
 15  distance lending.  I don't see where that has
 16  anything to do with what we're talking about.  We're
 17  talking about the rights, owners' simple,
 18  fundamental right to control the speech which he or
 19  she creates and/or owns.  And I don't see how anyone
 20  came make any law or any regulation which says that
 21  I don't have a right to control access in the
 22  digital cyber world  if I have a corresponding right
 23  in the tangible brick and mortar world.
 24              I think I've made my point.  So I'm
 25  going to stop just stop right there and not consume
 26  any more of your time because I'm sure you'll want

                                                   PAGE 139
  1  to go home, but you've got it.
  2              As far as we're concerned, this comes
  3  down to the simple basics.  Authors and copyright
  4  owners have rights under the Constitution, and we
  5  think that the most compelling argument here is you
  6  should not make a recommendation to Congress which
  7  would even lead them to consider for one instant
  8  creating a class of individuals which would have
  9  less rights than others under the same body of law.
 10              Thank you.
 11              MS. PETERS:  Thank you.
 12              Now, we begin the questioning.  Turning
 13  to my extreme left, let's begin with Rachel.
 14              MS. GOSLINS:  Great.
 15              MS. PETERS:  You mean you're not
 16  thrilled?
 17              MS. GOSLINS:  Right.  Both of you argue
 18  -- actually I just have one sort of basic question
 19  at the moment -- both of you argue to some extent
 20  that proponents of an exemption have not satisfied
 21  the burden that they have by statute to show adverse
 22  effects or an adverse impact.  They argue to some
 23  extent that the way you frame the burden of proof
 24  would make it impossible for anybody to satisfy that
 25  burden and render the congressional mandate to us
 26  pretty much meaningless.

                                                   PAGE 140
  1              We're heard the professors have needed
  2  to circumvent DVD protection in order to access and
  3  play movies for their class.  We've heard that they
  4  sometimes use proxy servers to get remote access for
  5  students that are licensed to use databases, but are
  6  not within the Internet when they access this.
  7              So my question is, I guess, what kind of
  8  evidence would satisfy you under your vision of how
  9  this burden of proof works.  How would a proponent
 10  satisfy the burden of proof that they have?
 11              MR. SORKIN:  Okay.  To start at least, I
 12  think in the absence of an effective 1201(a)(1)(A),
 13  1201(1)(a)(i), it's very, very tough to meet that
 14  burden of proof.  However, that may be -- the
 15  question was asked this morning have you had any
 16  adverse effect, anything as if the statute were in
 17  effect today, and at least Professor Cohen and
 18  Professor Neal said no.
 19              It took them a long time to say no, and
 20  they kind of worked their way around it, but the
 21  conclusion was, no, there's been no effect.  Now,
 22  whether or not there will be such an effect come
 23  October when the statute goes into effect is
 24  something else again.  In order to do that, you have
 25  to have a much better crystal ball than I do about
 26  what companies' content owners are going to do by

                                                   PAGE 141
  1  way of protecting their works.
  2              From all indications of which I'm aware
  3  currently, and I haven't read a newspaper since this
  4  morning, and for my company, particularly, that's
  5  critical.
  6              (Laughter.)
  7              MR. SORKIN:  But from all indications of
  8  which I'm aware, while there are intentions to take
  9  advantage of the protections offered by 1201, none
 10  of it will have the kind of adverse effect about
 11  which complaint has been made.
 12              So I suppose I could dream up some kind
 13  of mythical hypothetical, if you will, example of
 14  what the proof would be.  I would have a tough time
 15  doing it today.  Perhaps it would be something like
 16  a company making DVD if you will or any kind of
 17  work, a musical work available, and encasing it,
 18  protecting it as the DVDs were protected by CSS and
 19  not allowing access to it for any purpose
 20  whatsoever, including, of course, what would be
 21  legitimate purposes for faire use.
 22              That would be on that company's part a
 23  piece of unmitigated silliness.  That's one of the
 24  points I tried to do.  We are not in business to
 25  keep our stuff locked up and keep it away from the
 26  public.  Quite the contrary.

                                                   PAGE 142
  1              MS. GOSLINS:  Okay.
  2              MR. PERLMAN:  May I submit that based on
  3  what I heard this morning, the burden of proof was
  4  irrelevant because under any standard the question
  5  was asked:  how would you define the particular
  6  classes of work to which an exemption should be
  7  granted, and I did not hear a single tangible answer
  8  to that question.
  9              MS. GOSLINS:  That's a whole other line
 10  of questioning.
 11              Just so that we're clear, what I hear a
 12  lot of both of you saying, and as you've seen my
 13  questions to the user community, to what extent can
 14  you show adverse effects today, and in many
 15  instances the answer has been we're not able to do
 16  so today, but the statute does, in effect, ask us to
 17  look into the crystal ball at least three years
 18  ahead.
 19              So taking that into account, what could
 20  a proponent say to you that would make you believe
 21  that at least from now until the next three years
 22  there was a danger of this adverse effect?
 23              MR. SORKIN:  Perhaps the example that I
 24  just made up.  Perhaps I found a memo in your
 25  company's files that says we are going to overturn
 26  this world.  We would be much better off if people

                                                   PAGE 143
  1  did not play our CDs, if they did not see our movies
  2  or read our books.  So we're going to protect
  3  everything and then sue anybody who even tries to
  4  get a hold of them for any purpose whatsoever.
  5              Absent such a thing I'm not imaginative
  6  enough to devise some satisfactory thing that would
  7  meet that burden.  Quite frankly, I remain puzzled
  8  by the congressional intention in having you look at
  9  this now instead of after the statute comes into
 10  effect, and we can all take a look and see what's
 11  happening.
 12              MR. WEISGRAU:  May I just add to that,
 13  too?  I don't agree with the notion that you have to
 14  do this projection of what might be adverse effect.
 15  I forget the document we excerpted this from.
 16  Victor has it, but I think it came from the Commerce
 17  Committee.  Quoting their words, they were looking
 18  for, quote, distinct, verifiable, measurable impact.
 19  Mere inconvenience is not substantial impact, close
 20  quote.
 21              I would add to that nor is fear
 22  demonstrable impact.
 23              It seems to me that Congress has asked
 24  for verifiable impact, not the project.  There is a
 25  three year review period.  If, in fact, things go
 26  awry, there is a process three years down the road

                                                   PAGE 144
  1  for them to bring in evidence of this adverse
  2  impact.
  3              Ms. Douglass I thought asked one of the
  4  better questions of this morning, and she said if
  5  it's not access that creates this impact, then where
  6  might it come from, and one of the panelists said,
  7  well, it could come from the fact  that libraries
  8  are poor.  Well, I don't think that Congress said to
  9  the Library of Congress, "Find some way to rearrange
 10  the socioeconomic structure of this country to
 11  resolve the injustices of unbalanced distribution of
 12  wealth."
 13              Libraries, their problem is that they
 14  want it for free.  Our problem is that we wanted to
 15  get paid, that we want to be paid.  That doesn't
 16  seem to me to be the topic of -- the balance between
 17  the two parties there of whether it's free or to be
 18  paid doesn't seem to be at issue here.  You're
 19  supposed to be talking about adverse effect.  They
 20  can't demonstrate any of it.  All they can do is say
 21  it might be there.
 22              Well, the world might end tomorrow, too.
 23  Maybe we should just give up all laws, have a good
 24  time.
 25              MS. GOSLINS:  I guess my last question
 26  is how you would respond to arguments that we've

                                                   PAGE 145
  1  heard, the specific problem of removal of access,
  2  that more and more there are products to which a
  3  library subscribes, and they have a fully paid
  4  subscription for a year, for instance, which if they
  5  had in a print version, they would then have the
  6  individual issues, and when they cancel their
  7  subscription they no longer have access to lawfully
  8  acquired copies which they purchase, and they can't
  9  use them what they would consider to be fair uses of
 10  them.
 11              It seems to be a relatively new problem
 12  with, you know, or new issue that's come up with
 13  technologies that now make that possible, which
 14  necessarily exist several years back, and so I would
 15  just be curious as to how you would respond to that
 16  argument.
 17              MR. SORKIN:  Well, again, speaking in
 18  terms of the people for whom I speak here, I would
 19  have a first question as to whether there is any
 20  contemplation of removing from the library acquirer,
 21  let's say, on the expiration of some term removing
 22  the product.
 23              I can well understand that there might
 24  be a term which would come to an end so there would
 25  be no further supply of the product.  Frankly, I
 26  just don't know.  Again, to my knowledge, although

                                                   PAGE 146
  1  I've heard rumblings from other companies of doing
  2  that kind of thing, it never struck me as logical.
  3  If anybody at my company asked whether that should
  4  be done at the end of the year, you take it back or
  5  cause it to self-destruct or something like that.
  6  If anybody should ask me, my recommendation would be
  7  to the contrary.
  8              Do I guarantee that my recommendation
  9  would be followed?  I'm afraid not, but that's the
 10  only answer I have.
 11              Now, it is, on the other hand, true.  I
 12  suppose one can make the argument that in the good
 13  old analogue and paper world, if I rented you a
 14  film, a book, a phonograph record, rented it to you,
 15  at the end of the rental period I'm entitled to get
 16  it back.  Access implies a right to have or to get,
 17  and depending on the terms on which access is
 18  arranged, one can get it back.
 19              So that may be a theoretical
 20  underpinning, to answer your question, but quite
 21  frankly, from my perspective I don't see it as
 22  logical, economical, or appropriate.
 23              MR. PERLMAN:  If I may, the rabbit goes
 24  into the hat when you refer to the thing as being
 25  lawfully acquired because that begs the question of
 26  what it is that has been lawfully acquired.

                                                   PAGE 147
  1              This group must have phenomenal powers,
  2  just awesome powers because what I heard this
  3  morning was that you were being asked to grant an
  4  exemption, and not an exemption from the anti-
  5  circumvention provisions of the DMCA, but from the
  6  universal economic laws that are evolving with
  7  technology.
  8              We, over the course of history, have
  9  evolved from an economic basis that started out
 10  grounded literally and figuratively in real property
 11  to a point where it became grounded in tangible
 12  personal property, and we are now moving into an era
 13  when it is grounded in intangible personal property.
 14              Because of that the basic economic model
 15  is changing from sales of tangibles to the rental
 16  and license of temporary and specified uses of
 17  intangibles.  What you've been asked to do is to
 18  change that, and I'm afraid it's not within your
 19  powers.
 20              MS. GOSLINS:  But how would you respond
 21  to the argument that in the previous world the
 22  balances that copyright is supposed to embody was
 23  settled in statutory exemptions and rights that were
 24  articulated by the statute?  And now that we are
 25  moving, as we seem to be hearing more and more,
 26  towards a world in which that is regulated more and

                                                   PAGE 148
  1  more by contract and less and less by statute, that
  2  this is precisely the time that the people who have
  3  the least bargaining power and who were protected
  4  previously by the statute need to have those
  5  protections reinforced in a world where contract is
  6  now taking over some of the mechanisms that used to
  7  be affected by the statutes.
  8              MR. PERLMAN: Since I represent the group
  9  that probably has the very least bargaining power of
 10  any entity that you could possibly discuss today,
 11  I'm content to allow market forces to determine the
 12  way the economic world works to the extent that over
 13  a period of time, that history reflects a basic and
 14  enduring wrong, then we need legislation to change
 15  it, but we haven't met that precondition.
 16              MR. WEISGRAU:  I think also they haven't
 17  put forth any evidence that the new model is really
 18  that adverse, this possible new model.  The notion
 19  of purchasing, I can purchase the whole book and
 20  then I keep the whole book forever, and yes, maybe I
 21  pay 29.95 for the book.
 22              But under a new model I might be able to
 23  just purchase the four pages of the book I actually
 24  want to read and only pay 65 cents for it each time
 25  I want to read it and end up saving money on it.
 26              I mean there's two sides to the coin in

                                                   PAGE 149
  1  terms of the licensing argument, and that is that
  2  licensing can be specific and very, very clearly
  3  defined, very limited pieces of content, and as we
  4  have in the publishing industry where at one time if
  5  you wanted to buy -- you had to buy a textbook, and
  6  now today you don't have to buy a textbook.  You get
  7  a course back, which is a chapter from this one and
  8  a chapter from that one, and you don't pay for the
  9  price of the textbook anymore.
 10              Well, technology makes that possible.
 11  There's been no adverse effect in the publishing
 12  industry in terms of the student's ability to
 13  acquire knowledge to learn from, but technology has
 14  changed the way that knowledge is assembled and sold
 15  and packaged, and I think that's what's happening
 16  here.
 17              They can't demonstrate anything that
 18  shows that it's going to do any damage to the public
 19  good or welfare here, and the fact that to the
 20  extent that specific  examples were given this
 21  morning by Ms. Cohen.  She referred a couple of
 22  times to Lexis and Westlaw.
 23              Those models argue against her very
 24  point because those are digital media that have
 25  since their inception been given free access to law
 26  students and given extraordinarily inexpensive to

                                                   PAGE 150
  1  the educational community.
  2              MS. PETERS:  Bernard, did you have one?
  3              MR. SORKIN:  I thought there might be
  4  two points which have been touched on, but that
  5  might be raised further in answer to your question.
  6              Number one, insofar as a contract might
  7  be oppressive with respect to people who have fewer
  8  resources or are disadvantaged, courts deal with
  9  that almost routinely, but beyond that, if there
 10  isn't the kind of oppression, a contract of adhesion
 11  kind of situation, I don't think the copyright law
 12  with or without the DMCA or the Copyright Office is
 13  geared, and maybe it's unfortunate that they're not
 14  geared to solving those kind of what you might call
 15  material justice kind of issues.
 16              More fundamentally, I think, to this
 17  inquiry, and I tried to make the point in my
 18  presentation, but perhaps missed the boat.  What
 19  we're coming into and have come into to a large
 20  degree in the digital world is truly a new kind of
 21  world relative to the kind of properties we're
 22  talking about.
 23              It's not easy and perhaps impossible to
 24  apply the old rules of copyright as we knew it, and
 25  I think the changes that are imported now by the
 26  DMCA and particularly by 1201 radical as they may

                                                   PAGE 151
  1  seem are absolutely necessary because if copyright
  2  is seriously weakened or in my perception destroyed,
  3  then that does tremendous damage, and there's no way
  4  of taking advantage of all of the benefits that
  5  digitization has to offer content owners, society,
  6  the educational community particularly.
  7              MS. PETERS:  Charlotte.
  8              MS. DOUGLASS:  I have an interpretation
  9  question, and it has to do with the difference
 10  between -- I guess maybe if I could just go to
 11  MPAA's statement, I guess it was in the comment, and
 12  the question is:  is there any difference between
 13  focusing on the impact of the implementation of
 14  technological measures and focusing on the
 15  prohibition of circumvention of access control
 16  measures.
 17              I'm just trying to get our tasks
 18  straight in our mind, and the MPAA seemed to think
 19  that the copyright office in its notice of inquiry
 20  was focusing on the impact of technological measures
 21  as opposed to focusing -- you know, adverse effects
 22  from the impact as opposed to adverse effects from
 23  the prohibition on circumvention of technological
 24  access measures.
 25              So I'm asking.  Are they one and the
 26  same thing or are they different?  And if they're

                                                   PAGE 152
  1  different, can you just tell me, maybe give me an
  2  example of one as opposed to the other?
  3              MR. SORKIN:  If I understand your
  4  question correctly, Ms. Douglass, I'll try.
  5              I think there are two different things,
  6  although they may be different sides of the same
  7  coin in a sense.  The technological measures, the
  8  protections provided by Section 1201 and, more
  9  particularly for our purposes, by 1201(a)(1)(A), may
 10  have an impact, and that impact is the subject of
 11  the complaints we've been hearing from the library
 12  and educational community and, I guess, from others.
 13              And in answer to Ms. Goslins' question,
 14  I tried to think of a hypothetical result, you know,
 15  of what that impact could be.
 16              On the other hand, that's different, and
 17  I hope now I understood your question correctly.
 18  That's different from the impact of prohibiting
 19  operation of those technological measures.  Am I
 20  reading from the same page as you are?
 21              MS. DOUGLASS:  Yes, you are.
 22              MR. SORKIN:  That impact, I think, is
 23  easy to see in terms of the effect on copyright
 24  protection.
 25              MS. DOUGLASS:  Could you give me an
 26  example, a concrete example that a layperson could

                                                   PAGE 153
  1  understand?
  2              MR. SORKIN:  Yeah.  Well, if we can
  3  switch to a different part of 1201, yes.
  4              MS. DOUGLASS:  Okay.
  5              MR. SORKIN:  The DCSS case, where there
  6  was actual circumvention of the protective device
  7  that was intended to insulate DVDs from unauthorized
  8  access.  Quite actual, and the potentiality for harm
  9  was and still is huge, harm not only to the
 10  copyright owners of those motion pictures that were
 11  the subject of this thing, but to an industry
 12  because if that couldn't be cured, it would mean
 13  that the motion picture studios would stop releasing
 14  their movies in DVD.
 15              That's not to the benefit of anybody.
 16  The public benefits to some degree, to a large
 17  degree depending on what kind of movie fan you are,
 18  benefits to a large degree, let's say, from having
 19  movies available in that format, and that's true for
 20  many, many works which can be provided better in
 21  many contexts in digital form.
 22              But leaving that kind of thing aside,
 23  that may sound a bit parochial.  Look at it in terms
 24  of distance learning, which everybody here has
 25  fought battles on on one side or another, and is
 26  accepted as a great, great public and societal good.

                                                   PAGE 154
  1  If works can't be digitized, if works' owners will
  2  not digitize them for fear of losing them
  3  completely, that possibility goes down the drain as
  4  well.
  5              I hope I answered your question.
  6              MS. DOUGLASS:  Yes.  I think so.  You're
  7  saying that an adverse effect from a circumvention -
  8  - from being prohibited from circumventing -- I'm no
  9  David Carson so I can't say "download" six times in
 10  one sentence.  So I'm going to stumble maybe a bit.
 11              But at any rate, you're talking about
 12  the difference between circumvention, adverse
 13  effects from circumvention, and just adverse effect
 14  from implementation.  So adverse effect from
 15  circumvention would be what the Linux users are
 16  saying is taking place with respect to their DVDs
 17  that they cannot --
 18              MR. SORKIN:  Right, right.
 19              MS. DOUGLASS:  -- play on their --
 20              MR. SORKIN:  Right, except that what the
 21  Linux users have not paid attention to is the fact
 22  that a license has been all along available to them
 23  or to the manufacturers of machines that would use
 24  the Linux system, and currently it is licensed.  So
 25  I assume they are happy and are sending the
 26  Copyright Office letters of apology for overwriting

                                                   PAGE 155
  1  (phonetic) the original report on it.
  2              MS. DOUGLASS:  The license free of
  3  charge?
  4              MR. SORKIN:  No, but they're not
  5  outrageously priced.
  6              MS. DOUGLASS:  Okay.  All right.  Thank
  7  you very much.
  8              I have another, I guess, general
  9  question, and that is it seems to me that both sides
 10  are saying -- maybe I won't say both sides, but both
 11  the library interests and both the content owners
 12  are saying that it doesn't make any sense to focus
 13  on just classes of works because you say, Mr.
 14  Sorkin, that if you focus on one class of works,
 15  then you're disadvantaging that particular class of
 16  works.
 17              So does it make sense to have, say, like
 18  a fair access provision?  Would a fair access
 19  provision make any sense similar to fair use, but
 20  that focuses on those four or five categories that
 21  were enunciated by Mr. Lutzker this morning?
 22              MR. SORKIN:  Before I struggle with your
 23  question, I'd like to make one small modification.
 24  I don't think I suggested that using classes of
 25  works results in disadvantaging a class.  What I
 26  said was assuming that a class of works can be

                                                   PAGE 156
  1  defined, and in my view that's a very, very tough
  2  assumption, but assuming that to be the case, when
  3  you define such a class application of the removal
  4  of the protection with respect to that class will
  5  necessarily result in spilling over to other works
  6  that you don't intend to include in that definition.
  7              And I hope you won't ask me for an
  8  example because I cannot think of an example of a
  9  class of works.
 10              So far as fair access is concerned, I
 11  don't think that's practical or appropriate.  Access
 12  strikes me as a particularly private, if you will,
 13  notion, one not subject to the kind of relief, so to
 14  speak, that fair use provides as an affirmative
 15  defense.
 16              What do I mean by that?  If I have --
 17  forgive me for frequently going back to motion
 18  picture analogies, but I don't know very much about
 19  anything else -- if I have the only good negative of
 20  a great motion picture, I don't have to let anybody
 21  come near it to make duplicates, to show it or
 22  anything else.  That's mine, and I could keep it
 23  locked up.
 24              That's the kind of thing I meant with
 25  respect to the Salinger case.  So I don't know what
 26  would constitute fair access unless you apply the

                                                   PAGE 157
  1  same kind of criteria as are applied with respect to
  2  fair use, but that would entail a pretty drastic
  3  revision of our property laws.
  4              You know, copyright law in my view
  5  carries a lot of freight, all of the exceptions that
  6  are attached to it.  There aren't many ownership
  7  kind of laws that are so full of holes and
  8  obligations imposed on copyright owners or, maybe
  9  better put, denigrations from the ownership.
 10              But ownership of a piece of tangible
 11  property, yes, that's mine, and it may be that
 12  society wants to change these things.  It may be
 13  that if I own a lot of milk and bread I should be
 14  required to give it to people, but so far that
 15  hasn't happened.
 16              MR. PERLMAN:  Fair use, fair access is a
 17  red herring.  It's a very seductive, attractive red
 18  herring, but a red herring nonetheless for two
 19  reasons.
 20              First, it is beyond the scope of the
 21  assignment that's been given to the Library of
 22  Congress.
 23              Second, it's been brought up many times
 24  this morning by the user side.  All of us can
 25  vividly remember spending a couple of years of
 26  pleasure in the CONFU  process, the entirety of

                                                   PAGE 158
  1  which was based on fair use.
  2              Some that was universally agreed to
  3  within the Digital Images Working Group and, I
  4  believe, also within the CONFU body at large was
  5  that if there were a simple, easy, readily
  6  accessible licensing system, fair use would go away
  7  because, in effect, the users would be happy to pay
  8  a reasonable charge in exchange for the insurance
  9  against having stepped outside of the fair use
 10  boundaries.
 11              We heard that over and over again.
 12  Well, today we're talking about a technology that
 13  provides exactly that, and all of a sudden they need
 14  fair use.  What they need is an exemption from the
 15  same kind of economic constraints that I talked
 16  about earlier.  They are looking for free use as
 17  opposed to fair use.
 18              MS. DOUGLASS:  I think that does it.
 19  Thank you.
 20              MS. PETERS:  Rob.
 21              MR. KASUNIC:  I'll begin with some
 22  questions to Mr. Weisgrau and Mr. Perlman.
 23              Just following up on that last question
 24  in terms of fair use and it being outside the scope
 25  of what the Copyright Office should be considering
 26  within this, fair use was repeatedly emphasized in

                                                   PAGE 159
  1  the legislative history and also even within Section
  2  1201(a)(1).  The factors that the office is to
  3  consider within this rulemaking are some of the same
  4  factors that we find in the fair use analysis.
  5              How then is fair use not a relevant
  6  consideration even while there may be other avenues
  7  for licensing availability?  How is it not a
  8  relevant consideration for adverse impacts?
  9              MR. PERLMAN:  It may be the result of
 10  inarticulate drafting by Congress.  It may be the
 11  result of intentionally inarticulate drafting by
 12  Congress.  Your task is to find particular classes
 13  of work to which an exemption should be granted.  As
 14  soon as you start talking in terms of use and what
 15  is fair and what is not, if you grant an exemption
 16  based on fair use, you have to grant that exemption
 17  across the board, not to any particular class of
 18  work.  That's why I said it's outside of the scope
 19  of what you have been assigned, God bless you, to
 20  do.
 21              MR. KASUNIC:  Okay.  Then if our task is
 22  to work exclusively on particular classes of works,
 23  there is certainly, as was pointed out earlier
 24  today, there's a relationship within 1201(a)(1) of
 25  that class of works to uses, users and noninfringing
 26  uses with 1201(a)(1).

                                                   PAGE 160
  1              And there was also the comment that
  2  these class of works could be viewed as cutting
  3  across broad categories, and that use of the term
  4  "broad categories", being plural, wouldn't
  5  necessarily restrict the class to any one individual
  6  category. But, since this was used as a plural of
  7  all the categories, which is really the scope of all
  8  copyrightable works, that we could define a class of
  9  works as overlapping a number of different
 10  categories and basing that ``class'' on a particular
 11  use.
 12              Since we have not really been offered
 13  any specific definitions for a class of works by
 14  copyright owners, why isn't this view a satisfactory
 15  way to go about this?
 16              MR. PERLMAN:  When you look at the
 17  language as a whole, and when I was an English major
 18  I was very much a believer in the new school of
 19  discussion of interpretation, which meant that you
 20  took a look at the words that you were given, and
 21  you started there.
 22              And when we look at phrases like
 23  particular classes of works, the concept of
 24  particular certainly connotes to me a very specific
 25  analysis and a very specific treatment.  If you're
 26  going to deal with a use that cuts across virtually

                                                   PAGE 161
  1  every classification of work, that to me is outside
  2  of the assignment and outside the intention behind
  3  the assignment.
  4              MR. KASUNIC:  Well, what if we look at a
  5  particular type of noninfringing use as related? The
  6  particular aspect of the class, is the particular
  7  use, and how that cuts across those categories of
  8  works?
  9              MR. PERLMAN:  Because you're talking
 10  about a particular use as opposed to the use of a
 11  particular class.  That's why.
 12              MR. KASUNIC:  There were also some
 13  comments stating that we can only look at the
 14  particular adverse effects that are presently
 15  verifiable and specifically identifiable, but we do,
 16  again, have language in the legislative history that
 17  explains that this rulemaking -- and this is in the
 18  section-by-section analysis -- that the rulemaking
 19  may also, to the extent required, assess whether an
 20  adverse impact is likely to occur over the time
 21  period relevant to each rulemaking proceeding.
 22              So if there is any ability -- which, in
 23  this particular time period is difficult to
 24  establish verifiable adverse consequences to the
 25  prohibition, since the prohibition hasn't taken
 26  effect -- wouldn't it seem only reasonable that we

                                                   PAGE 162
  1  look to some of these likely to occur adverse
  2  impacts?
  3              MR. PERLMAN:  Absolutely, but I did not
  4  hear any this morning that were likely to occur.
  5  What I heard and saw were great and vague fears,
  6  again, most of which were based around having to pay
  7  money even though the reality is that perhaps they
  8  would be paying less money and getting better access
  9  in exchange.
 10              MR. WEISGRAU:  I think that, yes,
 11  certainly you can look at that, but I think
 12  something you ought to apply in terms of an
 13  evaluation of the information is not what is
 14  possible, but what is probable.
 15              So to be examining people's worst
 16  nightmares and fears and to have a rulemaking based
 17  upon that is simply to base rules upon individuals'
 18  paranoia.  That doesn't make any sense to me.
 19              There is no evidence that I've seen
 20  anyone produce that would substantiate their claims
 21  that things could move in this adverse direction.
 22  If you look at the Internet, we have a site where
 23  there are 70,000 previously protected images on the
 24  Internet.  You could not gain access to this site
 25  without passwords and the like.
 26              Now, what did we do?  The trend is to go

                                                   PAGE 163
  1  the other way.  We took all that protection off so
  2  that anybody can get in there at any time.  There
  3  was a time when you bought a Microsoft program that
  4  you had to go through some contortions in order to
  5  install it, and it would blow up or something if you
  6  installed it twice, and they've taken all of that
  7  off.
  8              I don't see any evidence in the software
  9  community, in the content community anywhere, I
 10  don't see anything happening anywhere that would
 11  lead one to believe that access controls are going
 12  to be put up in such a way that they're going to
 13  have this damaging effect.  I mean could somebody
 14  give us one iota of evidence that would lead us to
 15  believe that there is even a small probability that
 16  this will happen?  I don't see it anywhere.
 17              MR. KASUNIC:  Okay.  One final questions
 18  for the both of you.  You were talking about the
 19  constitutional aspects of this situation and, from
 20  the copyright owners' side, that there is a right to
 21  speak and, what goes along with that, is the right
 22  not to speak and to withhold certain elements. We've
 23  had some Supreme Court comment on that very issue.
 24              But in the context that the Court has
 25  discussed that, it's been in regard to unpublished
 26  works -- that one has the ability not to publish and

                                                   PAGE 164
  1  not to put something forward. But once there is a
  2  distribution to the public, then certain other
  3  limitations and exemptions on copyright owners begin
  4  to kick in.
  5              How does that fit in with this -- where
  6  works are distributed and where this is being put
  7  forward to the public -- and how can that right not
  8  to speak then be withheld?
  9              MR. WEISGRAU:  I think that, again, I
 10  understand exactly what you're saying, and I support
 11  it in theory in the direction you're going, but what
 12  I want to point out is that from my reading of all
 13  the language in the law, there's nothing that
 14  defines clearly when something is published.
 15              So suppose I make 20 copies of a disk
 16  with access controls on it to be given to this
 17  limited group of people, and maybe it has my
 18  organization's strategic plan on it or something.
 19  Does this mean that a librarian can hack through the
 20  access controls if she gets a copy because she wants
 21  to know if there's anything the library might be
 22  interested in?  Is that published or not published?
 23              There's no bright line of what's
 24  published anymore, is there?  I mean I can bring
 25  court cases in here that will show you that one
 26  judge rules 50 copies was published and another

                                                   PAGE 165
  1  judge rules 3,000 copies wasn't published.  So I
  2  don't know when something is published and when it's
  3  not published, and I don't think that's the
  4  criteria.
  5              The fundamental criteria is do I have a
  6  right to protect the information and to protect my
  7  speech when, where, and to whom I give it, and
  8  whether it's for a fee.  I think that there is a
  9  right to free speech, and I believe in that right.
 10              I don't think that there is a right to
 11  know.  There is a right to pursue knowledge.  There
 12  is no right to know.  We are not interfering with
 13  their right to pursue knowledge, but sometimes you
 14  have to go through the hoops to get the knowledge.
 15              But I think the more compelling
 16  constitutional argument is not just a free speech
 17  one, but again, if you set up a class of works, you
 18  are establishing a class of authors and/or rights
 19  owners who will not have equal protection under the
 20  law, and we've been to the Supreme Court before, and
 21  I'm going to tell you if photographs end up in that
 22  class of works because we don't know what classes of
 23  works are, but if they were to end up in there,
 24  we'll look for the case to make that point.
 25              MR. SORKIN:  May I add a point?
 26              MR. KASUNIC:  Yes, please.

                                                   PAGE 166
  1              MR. SORKIN:  I must apologize because
  2  I'm going to be repeating something that I said
  3  before, but I think consideration has to be given to
  4  the thought in your thinking about this issue, given
  5  to the proposition that there is something very,
  6  very new about digitized works and the need to
  7  protect them, and that the notion of publication may
  8  not be as important in that context as it has been
  9  in the paper and analog world.
 10              The DMCA or Section 1201 particularly in
 11  certain respects, I think, does not really fit
 12  comfortably into a copyright law as we knew it, and
 13  all of the amendments to the copyright law, and you
 14  can start with 1909 and you come down through 1976
 15  and so forth; they're of a different nature.
 16              And now we come to something which is
 17  startlingly different and startlingly different
 18  because the requirements, the obligations, if you
 19  will, to protect these kind of works are startling,
 20  and I don't think we can necessarily comfortably
 21  apply the old rules.
 22              MR. KASUNIC:  If I could follow up on
 23  that, Mr. Sorkin, and ask you \226
 24              MR. SORKIN: I had to open my mouth, I
 25  think.
 26              (Laughter.)

                                                   PAGE 167
  1              MR. KASUNIC:  -- that you had stated in
  2  your initial comment that anyone wanting to make a
  3  fair use of copyrighted work need only follow the
  4  same steps as he or she would in absence of
  5  technological protections, buy or rent a copy,
  6  subscribe to a transmission thereof, or borrow a
  7  copy from a library.
  8              Well, is this the case now?  You just
  9  stated that we're in a very different world and some
 10  of these things are very different.  How do these
 11  two fit together?
 12              MR. SORKIN:  They fit together because
 13  we have put one foot and several toes of the other
 14  foot into this new work, but all you have to do is
 15  go to a bookstore, go to a movie theater, turn on
 16  your television set, and you'll see that all of
 17  these things, perhaps with a rare exception now and
 18  then -- the Stephen King book, for example, about
 19  which there's been a lot of discussion, was issued
 20  only in digital form, but the plan at least as I
 21  read about it was to issue it in paper form as well,
 22  and that will probably happen very shortly.
 23              And in his musings Stephen King allowed
 24  as how paper is not going to disappear.  So at least
 25  for I don't know whether to say the foreseeable
 26  future or for some reasonable period of time or for

                                                   PAGE 168
  1  a long, but for some time you can do all of these
  2  things, go to the library and get the book and so
  3  forth.
  4              MR. KASUNIC:  Well, following up on
  5  that, the bookstore and books, the analogy has been
  6  used in your comments as well as in the legislative
  7  history that access control is similar to the
  8  situation -- that one's free to go in and buy a
  9  book, but you're not allowed to break into the
 10  bookstore to get it.
 11              How does that fit with the situation you
 12  had raised, the DCSS issue, and with the DVD
 13  situation, where here we have an owner, that lawful
 14  purchasers going into not the book -- we'll say the
 15  DVD store -- and buying that. Not breaking into the
 16  store, but going in and buying the DVD and then they
 17  find that the DVD is locked?
 18              Isn't that slightly different from the
 19  analogy that Congress was initially thinking about?
 20  The purchasers have paid for something?  What did
 21  they pay for?
 22              MR. SORKIN:  They've paid for the right
 23  to own that DVD and to view the content, if they
 24  have a licensed player.  That's now where we come to
 25  the new world aspect of it because if you went into
 26  a store and bought just the CD or bought a video of

                                                   PAGE 169
  1  that same picture, you would be, by virtue of having
  2  that, creating the same order of danger to copyright
  3  protection as you do when you have a DVD if the DVD
  4  is not protected by virtue of the fact that it's in
  5  digital form.
  6              So what the purchaser has bought, and it
  7  seemingly works for an awful lot of purchasers
  8  because DVD has been a very successful enterprise,
  9  to play it on a licensed player, and as I said
 10  before, that includes these days the Linux machine.
 11              MR. KASUNIC:  Well, how does the
 12  protection that is on the DVD protect access?  I
 13  noticed that from your statement that some of the
 14  fears expressed by copyright owners in this digital
 15  age are cheaply duplicated, cheaply transmitted, and
 16  cheaply modified works. But all of those fears
 17  concern Section 106 rights.  That's something that
 18  the conduct of circumvention does not prohibit. All
 19  we have is a prohibition against circumvention of
 20  access. In what sense does this technology that was
 21  applied to DVDs -- whether that's still an issue or
 22  not, it serves as an example for something that was
 23  an issue --                                    0
 24  as opposed to attempting to protect some of these
 25  other copy protections?
 26              MR. SORKIN:  I have a feeling we're

                                                   PAGE 170
  1  about to fall off the edge of my technological
  2  expertise, but what the access means is not as in
  3  the old days, acquiring the copy so that you can
  4  pick it up and hold it and take it out of the store.
  5  What it means is you can have access to the work
  6  included on the copy so that if you overcome that
  7  protection, you can play it on an unlicensed player
  8  or take it away and duplicate it.
  9              MR. KASUNIC:  Thank you.
 10              MR. CARSON:  Mr. Weisgrau and Mr.
 11  Perlman, can you give us some examples of the types
 12  of technological measures that photographers use to
 13  control access to their works?
 14              MR. WEISGRAU:  None.
 15              MR. CARSON:  You mentioned that you had
 16  to use passwords at one time.
 17              MR. WEISGRAU:  Yes, but that's a trend
 18  that's gone away.  Now, most photography sites on
 19  the Internet and certainly, I think, most, if not
 20  all, CD-ROM disks which contain photography are
 21  simply accessible.
 22              It's not inconceivable that if, in fact
 23  unrestricted access is abused, that photographers
 24  might not respond by controlling access again.  All
 25  we need is a few more decisions like Kelly --
 26              (Laughter.)

                                                   PAGE 171
  1              MR. WEISGRAU:  -- which, you know,
  2  define a whole new world of fair use.
  3              Most people that create works, whether
  4  they be corporate authors or individual authors,
  5  create them to give them wide exposure and have them
  6  be seen, sold, and to profit from them, and access
  7  controls don't necessarily lend themselves to that
  8  goal.
  9              So I don't really know of any meaningful
 10  photography site or any photography product which
 11  has any access controls on it today.
 12              MR. CARSON:  That being the case, why do
 13  you care what we do?
 14              MR. WEISGRAU:  We care because if, in
 15  fact, the fair user community with the aid of
 16  decisions like Kelly, if that expands, if fair use,
 17  the whole concept, is expanded to a point where we
 18  find it intolerable, then in fact we could put
 19  restrictions on these devices and on these sites.
 20              I'm not saying it's likely.  At this
 21  point there's certainly no talk in the industry of
 22  doing that, but I'm concerned simply about not just
 23  -- we care because it could happen, because of what
 24  the government can do, and because still ultimately
 25  I think that this whole exercise is really dabbling
 26  in an area where you're tampering with people's

                                                   PAGE 172
  1  constitutional rights for equal protection.
  2              I mean I'm not a lawyer, but I do think
  3  I'm a reasonable man, and I like the reasonable man
  4  theory of law, and I ask you to go out on that
  5  street and stop anyone and ask them this question.
  6  Do you think it would be okay for the Congress to
  7  pass a law which says it's okay for you to break and
  8  enter in order to find out what's inside a building
  9  in case you want to buy it?
 10              And I think that most people would look
 11  at you and say, "What, are you crazy?"  I think that
 12  most reasonable men would say, "You're crazy.  Why
 13  would the Congress ever do something that says you
 14  can break and enter so that you can come in to see
 15  what I have?  Ask me.  I'll show it to you if I want
 16  to show it to you, and if I don't want to show it to
 17  you, it's my right not to show it to you."
 18              So I think that there's a fundamental
 19  issue here that brings us to this table.  It's not
 20  immediate impact on photographers.  It's immediate
 21  impact on reasonable men and their rights under the
 22  United States Constitution that we're here about.
 23              MR. PERLMAN:  I live in a town where
 24  people still leave their houses and cars unlocked,
 25  but I grew up in New York City, and I'm damned if
 26  I'm going to do that.  I want the ability to lock my

                                                   PAGE 173
  1  door when I want to lock it.
  2              MR. CARSON:  Okay.  The next question is
  3  primarily directed at Mr. Sorkin if only because I
  4  think Mr. Perlman has answered it, but I certainly
  5  invite anyone to respond.
  6              You were all here this morning.  We had
  7  some discussion -- actually the testimony and the
  8  proposal of Professor Jaszi of a couple of days ago
  9  -- which, to paraphrase it, would ask us to create
 10  an exemption which would exempt any copies of works
 11  lawfully acquired by the person who feels the need
 12  to circumvent access control devices.
 13              Do you have any problems with that kind
 14  of exemption?  And if so, what are the problems?
 15              MR. SORKIN:  Yes.
 16              MR. CARSON:  Well, you've answered the
 17  first half of my question.
 18              MR. SORKIN:  First of all --
 19              MR. CARSON:  Mr. Sorkin, just make sure
 20  you're speaking into the microphone.
 21              MR. SORKIN:  I'm sorry.  I'm sorry.
 22  Thank you.
 23              I think we have to focus on the
 24  distinction between access and exercise of what
 25  we've been calling in all the papers and all the
 26  releases copying as being shorthand for all of the

                                                   PAGE 174
  1  rights in 106.
  2              While access may be granted or may be
  3  taken, while a work might be acquired as in the case
  4  of the CD, that doesn't necessarily carry with it
  5  the right to do anything else.
  6              If you're importing fair use into your
  7  question, then that as an affirmative defense might
  8  result in the acquirer being able to copy or take
  9  segments or do whatever it is that fair use would
 10  allow under the particular circumstances, but to
 11  devise such an exemption from 1201, I think, would
 12  be harmful to the structure of the statute in that
 13  it would kind of meld copying and access together,
 14  whereas they should be kept separate in my view, and
 15  also just destroy a substantial amount of
 16  protection.
 17              MR. CARSON:  All right.  But I want to
 18  make sure I'm understanding what you're saying and
 19  you're understanding my question because --
 20              MR. SORKIN:  Maybe not.
 21              MR. CARSON:  -- because what we're
 22  talking about, I gather, is an exemption which would
 23  simply say if you have lawfully acquired a copy of
 24  the work, you have the right to circumvent
 25  technological measures that control access, not that
 26  you have the right to circumvent technological

                                                   PAGE 175
  1  measures that control copy and so on.
  2              MR. SORKIN:  Oh, yeah.  If that's it --
  3              MR. CARSON:  Right.
  4              MR. SORKIN:  -- if that's it, I think in
  5  my view the access and the acquisition are the same
  6  thing, but I don't understand how your example would
  7  work, Mr. Carson because of the order of things.
  8              You say if you have lawfully acquired.
  9  That seems to precede the circumvention of access.
 10              MR. SORKIN:  Well, I suppose one could
 11  imagine, and it's not my proposal, but I suppose one
 12  could imagine you go into the store and you purchase
 13  a copy of something.  You take it home.  You've
 14  legitimately purchased it, and yet there is some
 15  technological measure on there that you can't
 16  overcome without some kind of circumvention.
 17              MR. SORKIN:  Well, then I must confess
 18  to being lost in the technology here because there
 19  must be in your mind and perhaps in everybody's
 20  except mine a distinction between the access and the
 21  acquisition.  If it's available in the store for
 22  purchase  --
 23              MS. PETERS:  Let me add to your
 24  question.  I think they were getting at persistent
 25  identifiers.  So that if it was lawfully acquired
 26  the first time, but the way that it operates you

                                                   PAGE 176
  1  have to keep getting authorization for every time
  2  you view it --
  3              MR. SORKIN:  Oh, okay.  That's DVDX, the
  4  DVDX kind of thing you're talking about?
  5              MR. CARSON:  Well, that might be one
  6  case.
  7              MS. PETERS:  Yeah.
  8              MR. SORKIN:  Or something like that?
  9              MS. PETERS:  But I thought that that's
 10  what they were after.  They were talking about
 11  second access as opposed to initial access.
 12              MR. SORKIN:  Oh, I see.  I'm sorry.  I
 13  misapprehended what you were saying.
 14              I think I would oppose that on the
 15  ground that the second access, so to speak,
 16  evidently the copyright owner wanted an additional
 17  charge for that, and there's no reason why that
 18  shouldn't be effective.
 19              MR. WEISGRAU:  Yeah, can I just --
 20              MR. CARSON:  Go ahead.
 21              MR. WEISGRAU:  It's a little confusing
 22  to me, too, but I guess I understand where the
 23  professor is coming from.  I've listened to him
 24  before, and always been amazed.
 25              It seems to me that if you have this
 26  lawful copy, you have with it the access, controls,

                                                   PAGE 177
  1  and things you need to access it.  One of a
  2  copyright owner's rights is to determine the period
  3  of a license, and if this license to use this thing
  4  expires at a certain time and you buy it knowing
  5  that condition, then that's what you bought, and if
  6  you bought it not knowing that condition, shame on
  7  you unless it wasn't disclosed.
  8              If it wasn't disclosed, take it back and
  9  get your money back.  I don't think that that -- you
 10  know, again, you shouldn't get the right to break
 11  and enter because you don't like the deal you bought
 12  into.
 13              Secondly, I mean, let's apply that to
 14  cable television.  My wife heard that "The Sopranos"
 15  was a great program.  So she subscribed to HBO on
 16  our cable system, proceeded to watch it for the
 17  season, and then when it was over she canceled HBO
 18  because she doesn't want to see it anymore.
 19              Now, so we had lawful access to HBO.
 20  Does that mean I can go climb up the pole now and
 21  hook HBO up and use it again because I once had
 22  lawful access to it?  I don't think so.
 23              MS. PETERS:  Or I think it had to do
 24  with -- another one was the CD-ROM that has the
 25  expiration date, and I don't think, Bernie, it
 26  applies to your products of entertainment.  It's

                                                   PAGE 178
  1  much more informational products that are constantly
  2  being updated and sometimes --
  3              MR. SORKIN:  DVDX may be a DVD that
  4  simply had an expiration date on it.  You bought it
  5  and you could play it for 24 hours, and unless you
  6  drop another nickel in somebody's slot --
  7              MS. PETERS:  Yeah, that's what.
  8              MR. SORKIN:  Yeah.  Although my company
  9  didn't favor that because it was seen as, while it
 10  existed, it was seen as a rival to our DVDs, in
 11  principle I have no problem with that.
 12              MR. WEISGRAU:  I could see a situation
 13  where a time expiration might be not only --
 14  certainly I think it's legitimate under the
 15  copyright owner's rights, but I could see a
 16  situation where it might be important.
 17              Let's take scientific and trade
 18  journals, authoritative publications that are very
 19  concerned about the quality of the documents which
 20  they publish, and let's take it that science is a
 21  changing body of knowledge so that in any given two
 22  or three year period basic information that's
 23  contained in this authoritative journal on disk may
 24  well change.  It may well no longer be active.
 25  There may be some reason to compel a person to not
 26  use old information if your reputation and your

                                                   PAGE 179
  1  reliability as a source of quality published
  2  material is dependent upon it being used in a timely
  3  fashion.
  4              MS. PETERS:  And if I'm an archive and
  5  my purpose is historical archiving, I just don't
  6  have it?  I want to know what the situation was in
  7  1990, and it's gone because things have changed and
  8  it's now 1995.
  9              MR. WEISGRAU:  You now don't have it?
 10  No, I think you do have it.
 11              MS. PETERS:  How do I have it if it has
 12  an expiration date?
 13              MR. WEISGRAU:  You have to get a license
 14  to get past that expiration date.
 15              MR. CARSON:  If a license isn't
 16  available because that particular product isn't
 17  marketed anymore, then what should the situation be?
 18              MR. WEISGRAU:  Because that particular
 19  product isn't marketed anymore --
 20              MS. PETERS:  It's been withdrawn.  It's
 21  stopped.
 22              MR. WEISGRAU:  -- I think that you're in
 23  the same quandary that a lot of people are in.  You
 24  no longer have the information available to you.
 25  Not every piece of information that's ever been
 26  recorded is continually available to everyone.

                                                   PAGE 180
  1              MR. CARSON:  But sitting on this piece
  2  of plastic I have, why shouldn't I be able to do
  3  what I need to do to get to it if there's no other
  4  way to do it?
  5              MR. WEISGRAU:  I don't think that that -
  6  - what harm do you demonstrate if you can't get to
  7  it?  Now there's something you wanted to know that
  8  you once new?  I mean --
  9              MR. CARSON:  I'm writing a treatise on
 10  the history of science.
 11              MR. WEISGRAU:  Right.
 12              MR. CARSON:  I'd like to be able to
 13  reconstruct what the state of scientific knowledge
 14  was in 1990.  I can't do that.  That knowledge has
 15  been withdrawn from circulation.
 16              MR. WEISGRAU:  Well, first of all, I
 17  certainly don't see that example ever existing, but
 18  if it did, the first question I'd say is are you
 19  really sure that there's no other place you can get
 20  this information?  I mean, this information exists
 21  nowhere else?
 22              MR. CARSON:  Well, it's my hypothetical.
 23              MR. WEISGRAU:  That's to know.
 24              (Laughter.)
 25              MR. SORKIN:  Although, if I may, one of
 26  the greatest books I've ever read was a treatise

                                                   PAGE 181
  1  called "Politics and the Constitution of the United
  2  States," by W.W. Crossky.  Just fantastic, and I
  3  read it in about 1948.
  4              I've been trying to find a copy ever
  5  since, and they do exist, but they cost about $250,
  6  which for me means they don't exist.  It's like in
  7  your hypothetical.
  8              That happens in the paper world as well,
  9  you know.  It's nothing new, and it may happen, may
 10  well happen less in the digital world unless some of
 11  the owners do things that are eminently foolish
 12  because there's no reason why that stuff should
 13  disappear.  It should be kept, and you can use your
 14  credit card to get it, and so forth, I would think.
 15              MR. PERLMAN:  I think you're also going
 16  down a technological blind alley.  CD-ROMs were
 17  obsolete before they ever hit the shelves of the
 18  dealers.  They will in the relatively near future
 19  not exist anymore.  What you will have is on-line
 20  access to information.
 21              If you have a right to that access and
 22  if you either have a fair use right or a licensed
 23  right to archive the information, then you need to
 24  archive it as it changes because the database, the
 25  Web site as it exists today is not going to be the
 26  Web site as it exists tomorrow.

                                                   PAGE 182
  1              MR. CARSON:  Do I have a right to
  2  archive it?
  3              DR. BLANK:  You tell me.  If you have
  4  access to it, perhaps you do.  If you have --
  5              MS. PETERS:  It's an open access
  6  situation.
  7              MR. PERLMAN:  Open access or a licensed?
  8  More likely a licensed access which will tell you
  9  whether you have the right to archive it, and if you
 10  don't automatically, then it's up to you to
 11  negotiate a right to archive it.
 12              MR. WEISGRAU:  And the other question
 13  with regard to your earlier example, when you bought
 14  this disk for your archive, did you know that it
 15  would expire, that the time would expire; that some
 16  day that disk would no longer be usable?
 17              MR. CARSON:  Well, like most people I
 18  probably didn't read the fine print.  So no.
 19              MR. WEISGRAU:  Well, in that case, you
 20  know, you're a victim of your own foolishness, but
 21  in fact, if you knew that and you made that
 22  transaction, then shouldn't you be bound by it?  I
 23  mean didn't you when you purchased it enter into a
 24  contract?
 25              MR. CARSON:  I follow the reasoning.  We
 26  could have an interesting debate on this for all

                                                   PAGE 183
  1  afternoon.
  2              MR. WEISGRAU:  Sure, we could.
  3              MR. CARSON:  Let's move on to another
  4  subject.  You were all, again, here this morning,
  5  and one conversation we had with the panel this
  6  morning was whether one can define a class of works
  7  in part by reference to the particular use of the
  8  work or the type of use of the work that is in
  9  question.
 10              I think the consensus of the panel this
 11  morning was, yes, you should be able to, and in
 12  fact, it doesn't make sense to do anything other
 13  than that.  I'd like to get the reaction of this
 14  particular panel to that proposition.
 15              MR. WEISGRAU:  Can you define a class of
 16  feet by the streets they walk on?  I don't think
 17  that you can define a class of work by the use to
 18  which it's put because any given -- let's take a
 19  photograph.  A photograph can be promotional.  It
 20  can be informational.  It can be truly documentary.
 21  It can be conceptual.  It can be historical.  It
 22  could be of sports.  It could be of historical. It
 23  could be of news.  It could be of products.
 24              How are you going to define -- are you
 25  going to define the class of work as photograph?
 26  Well, that's too broad, isn't it, to just say that

                                                   PAGE 184
  1  all photographs can be accessed?
  2              I don't know how you can define a class
  3  of work by the use.  I mean it just doesn't make any
  4  sense to me.  I don't understand how you could
  5  possibly do that.
  6              What you're doing, what they're saying
  7  to you is they're playing what I consider to be a
  8  mind game.  Let's make them believe that works and
  9  uses are the same.
 10              So what they're really asking you to do
 11  is to make a judgment based upon a class of use, not
 12  a class of work.  Do you get where I'm going with
 13  this?  They're saying, "Look.  We can't make an
 14  argument here about class of works.  There's no way
 15  we can make an argument.  We don't have anything to
 16  stand on.  So we're going to do two things.  Number
 17  one, we're going to attack the bench, and number
 18  two, we're going to try to make you believe that
 19  something is what it is not."
 20              MR. PERLMAN:  If you were supposed to
 21  classify tools, you can hammer a nail in with a
 22  hammer, and that's its job, but you can also hammer
 23  a nail in with a wrench, with a screwdriver, with a
 24  pair of pliers.  That doesn't turn them into
 25  hammers.
 26              MR. WEISGRAU:  And in Title 17, I think

                                                   PAGE 185
  1  the word "work" -- I mean the word "work" exists,
  2  and I believe the word "use" exists somewhere in the
  3  --
  4              MS. PETERS:  Fair use.
  5              MR. WEISGRAU:  Fair use.  I mean, the
  6  word "work" is statutory.  You're going to now
  7  change it to include or to be influenced by the word
  8  "use"?  I don't see how you can do that.  I really
  9  don't see how you can do that with any fairness
 10  whatsoever.
 11              I'll think of another constitutional
 12  argument about it.
 13              MR. CARSON:  What's your reaction, Mr.
 14  Sorkin, to the problem?
 15              MR. SORKIN:  Well, the same reaction and
 16  for almost the same reasons.  In addition, use is a
 17  function of somebody doing something, and there will
 18  be a lot of somebodies who will do different
 19  somethings with every kind of work in the copyright
 20  lexicon.
 21              So are we suggesting -- let's assume
 22  that we come to a very broad definition, unlike what
 23  the statute requires, that we use literary works.
 24  Well, some people will use literary works for
 25  reading for pleasure.  Some will use them for
 26  instruction.  Some will use them as a basis for

                                                   PAGE 186
  1  doing other works.  Some will use them for public
  2  performance, and more imaginative people than I can
  3  think of other things.
  4              But what then becomes the class with
  5  which you're dealing?  And let's assume that you
  6  decide to apply a definition linked to use and you
  7  say, well, through all literary works which are used
  8  for public performance.
  9              How do you limit the removal of the 1201
 10  protection to those literary works instead of having
 11  it spill over to others?
 12              So I think what we have is kind of a
 13  trap door with that kind of thing, and it strikes me
 14  that the notion of use in this context may be the
 15  way of sneaking some kind of fair use idea into a
 16  place where it doesn't belong.
 17              MR. WEISGRAU:  I think that
 18  fundamentally they're playing with the English
 19  language this way.  A work is an object or a
 20  subject, and use is an action.  So you can't define
 21  a subject by an action that you take with the
 22  subject.
 23              MR. CARSON:  What I'm hearing from all
 24  three of you, I gather, is that a particular class
 25  of works has to be determined with respect to
 26  something inherent in the nature of the work itself.

                                                   PAGE 187
  1              MR. WEISGRAU:  I think so.
  2              MR. SORKIN:  I think that's right.
  3              MR. CARSON:  Then how do you fit that
  4  together with what the purpose of this revision is,
  5  which is to determine whether there are particular
  6  kinds of works with respect to which the prohibition
  7  on circumvention of access control measures is
  8  making it impractical of impossible for users of
  9  work to engage in noninfringing uses.
 10              Isn't ultimately the focus -- doesn't
 11  the focus ultimately have to be on the uses, the
 12  noninfringing uses?
 13              MR. WEISGRAU:  Then they ought to write
 14  the statute that way.
 15              MR. CARSON:  Are you telling us the
 16  statute makes no sense?
 17              MR. WEISGRAU:  I'm not going to go so
 18  far as to say it makes no sense.  It's very
 19  confusing.
 20              MR. PERLMAN:  Res ipsa loquitur.
 21              MR. SORKIN:  You know, the focus has to
 22  be on the particular works as to which noninfringing
 23  uses can't be made.  I don't think the statute is
 24  asking you to determine what are the noninfringing
 25  uses that can't be made.
 26              MR. CARSON:  How can we determine the

                                                   PAGE 188
  1  type of works if we're not thinking about what uses
  2  might be noninfringing that would implicate the --
  3              MR. SORKIN:  Well, that's one of the
  4  difficulties with the formulation of the statute,
  5  one of the many, but again, to put it in terms of an
  6  example that doesn't really work because I don't
  7  think anything works here, but you might determine
  8  that musical works, if protected by the 1201,
  9  musical works if protected by 1201 cannot have any
 10  noninfringing works -- I'm sorry -- noninfringing
 11  uses made of them, and that would fulfill the
 12  statutory requirement.
 13              That particular formulation I don't
 14  think would make any sense, but I can't think of any
 15  that would.
 16              MR. CARSON:  It sounds like you're all
 17  telling us that we're wasting our time in this
 18  endeavor.
 19              MR. WEISGRAU:  Well, you said it, but I
 20  think you're right.
 21              MR. PERLMAN:  You have been given an
 22  unenviable task.
 23              MR. CARSON:  Well, isn't it incumbent
 24  upon us to try to find some meaning in the words
 25  that we're being asked to apply to make sense out of
 26  it or should we just say, "It makes no sense, and

                                                   PAGE 189
  1  therefore, we come to the conclusion that there can
  2  never be any exemptions"?
  3              MR. PERLMAN:  I think that you are doing
  4  exactly what you should be doing, which is the very
  5  best that you can with the words that you've been
  6  given, and based on the information that you've been
  7  given this morning and presumably in the other two
  8  days of hearings, you've been given no evidence on
  9  which to find that there is an exemption that is
 10  applicable to any particular class of work.
 11              MR. WEISGRAU:  And I think that, you
 12  know, leadership is all about taking difficult
 13  positions and stating them when it's necessary, and
 14  the bottom line here is they didn't tell you to find
 15  exemptions.  They told you to examine the situation,
 16  to evaluate and whether there should be.
 17              And I think that what I'm hearing after
 18  looking at all of this testimony and hearing all of
 19  the statements is that your report should be there
 20  are no class of works that should be exempt.  Nobody
 21  said you have to recommend exemptions.  You can come
 22  back and say there are no class of works exempt.
 23              MR. SORKIN:  What you have just said
 24  sound kind of hopeless and may sound very dead end,
 25  but the situation could well change diametrically,
 26  180 degrees when the statute goes into effect, and

                                                   PAGE 190
  1  you could take a look and see what the world is
  2  really like and how different works are or are not
  3  available for noninfringing uses.
  4              MR. WEISGRAU:  Again, I mean, talking
  5  about what you should recommend, I'm going to quote
  6  the Register from page 2 of her comments.  "It is
  7  clear from the legislative history that this
  8  rulemaking proceeding is to focus on distinct,
  9  verifiable, and measurable impacts."
 10              What I'm saying is having heard it all,
 11  I have not seen one iota of evidence that there are
 12  any such impacts.  Therefore, why do you need to
 13  speak to a class of works if there is no
 14  demonstration of a distinct, verifiable, measurable
 15  impact?
 16              MR. CARSON:  Okay.  One final subject
 17  I'd like to raise, as most everyone in this room is
 18  aware, the vast majority of comments we received in
 19  this rulemaking related to the DVD situation, and
 20  like it or not, Mr. Sorkin, you're the first person
 21  to appear here who really, I think, has made that a
 22  centerpiece of your testimony, at least a very major
 23  part of your testimony and of your written comments.
 24              First of all, you mentioned earlier, and
 25  I just wanted to explore this a little more, that
 26  there is now a license available, and I gather what

                                                   PAGE 191
  1  you're saying is that people in the Linux community
  2  now, just like anyone else with any computer running
  3  Windows '95 or '95 or an Apple computer, whatever,
  4  can do exactly the same thing with their DVDs.
  5              MR. SORKIN:  Yes.
  6              MR. CARSON:  I wish we had someone from
  7  the other side here to tell me that that is the case
  8  because in that case, we wouldn't have to ask you
  9  anymore questions perhaps on this subject.
 10              MR. SORKIN:  I suspect you'd be happier
 11  if somebody told you it's not the case.
 12              (Laughter.)
 13              MR. CARSON:  We'll have an opportunity
 14  in a couple of weeks when one of the preeminent
 15  spokespersons for that point of view will be here,
 16  and if we're told that's not a problem anymore, I'll
 17  breathe a sigh of relief.
 18              On the assumption that perhaps it's not
 19  that simple --
 20              MR. SORKIN:  I'm sorry?  On the
 21  assumption?
 22              MR. CARSON:  On the assumption that it's
 23  not that simple, that the availability of this new
 24  license and the implication of this new license
 25  hasn't resolved the problem, first of all, can you
 26  tell us?  None of us has great technical expertise,

                                                   PAGE 192
  1  and we recognize that your technical expertise may
  2  not be much greater, if at all.
  3              The whole DECSS controversy, first of
  4  all, I gather than the CSS coding, if that's what it
  5  is --
  6              MR. SORKIN:  Yeah.
  7              MR. CARSON:  -- has a purpose of
  8  controlling access; is that correct?
  9              MR. SORKIN:  Right.
 10              MR. CARSON:  Can you elaborate on
 11  exactly what it does in a nontechnical sense?
 12              MR. SORKIN:  Well, the best I can do is
 13  to say that if you took that DVD and played it on,
 14  let's say, Linux or any unlicensed player, you'd get
 15  nothing or distortion, but nothing that would be
 16  worthwhile.
 17              MR. CARSON:  What is the purpose of
 18  prohibiting access to the content on that DVD when
 19  it's placed in a nonlicensed player?
 20              MR. SORKIN:  Because if the DVD were not
 21  protected, then you could put it in any kind of
 22  player, licensed or nonlicensed, and you can not
 23  only play it, but you can also duplicate it.
 24              MR. CARSON:  All right.  Well, aren't we
 25  in the realm of a different subsection of Section
 26  1201 when we're expressing those concerns?

                                                   PAGE 193
  1              MR. SORKIN:  Yes.
  2              MR. CARSON:  So why should we care about
  3  protecting; why should we care about upholding a
  4  provision of the law that restricts access to DVDs
  5  to people who you'd love to have had the access,
  6  just not on that particular machine?
  7              That wasn't a very articulately
  8  expressed --
  9              MR. SORKIN:  Are you saying why should
 10  you care in this proceeding?
 11              MR. CARSON:  Yes.  I mean, we're here to
 12  determine whether we should exempt any classes of
 13  works.
 14              MR. SORKIN:  Right.
 15              MR. CARSON:  And one could argue that
 16  motion pictures on DVD are a candidate for that.
 17  You may disagree on the merits.  Can we say that?
 18              MR. SORKIN:  Sure.
 19              MR. CARSON:  It's a question of
 20  relevance right now.
 21              MR. SORKIN:  Yeah.  I'm not suggesting,
 22  and if I did, I didn't intend to do it in my paper
 23  or comments, that it's in any way determinative of
 24  what this panel should do, of what your office
 25  should do.  The reason I brought the Reimerdes case
 26  into this is simply as an example of what's

                                                   PAGE 194
  1  happening in the digital world and an example of how
  2  dangerous it is in this case, sad to say, even with
  3  protection.
  4              As you know, I'm sure, what happened to
  5  the CSS, the content scrambling system, was that a
  6  bright young guy in Norway about 18 years old hacked
  7  his way through it, and it's that kind of thing that
  8  I used as an example and perhaps didn't do it well,
  9  but used as an example of the very critical need for
 10  the kind of protection that 1201 offers in both
 11  areas, both copying and access.
 12              MR. CARSON:  Yeah, go ahead.
 13              MS. PETERS:  On your CSS, it has both
 14  access controls and copy controls, right?
 15              MR. SORKIN:  I believe so, yes.
 16              MS. PETERS:  Is the copy control "do not
 17  copy anything" or is it that --
 18              MR. SORKIN:  Yeah.
 19              MS. PETERS:  -- the copy control is you
 20  can make one copy, but you can't make the second?
 21              MR. SORKIN:  I don't know the answer to
 22  that, Ms. Peters.  I think --
 23              MS. PETERS:  What I was trying to get
 24  at --
 25              MR. SORKIN:  Like SCMS you mean.
 26              MS. PETERS:  What I was trying to get

                                                   PAGE 195
  1  at, we heard this morning, and we've heard it before
  2  and it's in the comments that where you have access
  3  controls for which there is a prohibition for
  4  individuals to break that and copy controls where
  5  there is no prohibition, that in many instances
  6  these really have merged and, therefore, that's a
  7  problem because there is no prohibition on the copy,
  8  but there is on the access.
  9              So to the extent that they're put
 10  together in the same thing, that is a problem, and I
 11  was trying to get at is this one of the situations
 12  where the access control and copy controls make it
 13  so that you can't --
 14              MR. SORKIN:  I understand the question.
 15              MS. PETERS:  -- make fair use at all.
 16              MR. SORKIN:  If one of my colleagues is
 17  still here and I can call on him for assistance.
 18              MS. PETERS:  which one are you looking
 19  for?
 20              MR. SORKIN:  Steve Metalitz.
 21              MR. CARSON:  We'll have the pleasure of
 22  your formal appearance on a subsequent occasion, but
 23  we welcome you for purposes of assisting Mr. Sorkin.
 24              Steve Metalitz.
 25              MR. METALITZ:  Thank you.
 26              I think your question gets to another

                                                   PAGE 196
  1  issue, which is whether there is an exception to
  2  1201(a)(1) based on the motivation or the reason why
  3  an access control measure has been adopted, and I
  4  don't think there's really any basis in the statute
  5  for that.
  6              To the extent that CSS is an access
  7  control, I think Mr. Sorkin described the way in
  8  which it's an access control.  Then presumably its
  9  circumvention will be a violation of 1201(a)(1), and
 10  the trafficking in the DCSS hack already is a
 11  violation of 1201(a)(2) as the court found.
 12              Now, I'm not sure whether the court also
 13  got into the 1201(b) issue because for trafficking
 14  purposes it doesn't really make a difference --
 15              MS. PETERS:  No, I agree.
 16              MR. METALITZ:  -- whether it has access
 17  control or copy control.
 18              MS. PETERS:  I agree.  You heard all the
 19  comments about that you really can't distinguish
 20  between access controls and copy controls and
 21  merger.  Have you got any comments on that argument?
 22              MR. METALITZ:  Well, the only comment I
 23  would make is that so far the courts have not
 24  experienced this difficulty that some of the
 25  witnesses perceive, and I think I can't say that it
 26  would never arise, but I think it's a manageable

                                                   PAGE 197
  1  distinction because the courts seem to have been
  2  able to manage it.
  3              MS. PETERS:  Okay.
  4              MR. WEISGRAU:  May I just give a
  5  practical reason --
  6              MS. PETERS:  Yeah, sure.
  7              MR. WEISGRAU:  -- why you should not
  8  make DVDs containing motion pictures an exempt class
  9  of work, a practical reason?
 10              And that is that it took more than ten
 11  years for the VHS to become a household item, for it
 12  to really be adopted as a standard for use in the
 13  United States.  The hardware base of DVD players in
 14  the United States is minuscule.  Nobody is going to
 15  get rich making DVDs right now because there's not
 16  enough people to buy them.
 17              And it's going to be years before there
 18  is enough hardware base to make it profitable enough
 19  to produce a work on DVD only.  So in the interim --
 20  I say "in the interim" because I think you're going
 21  to go through this process in three more years,
 22  right? -- all of these works, as Mr. Sorkin pointed
 23  out earlier are on television, in the theaters, and
 24  on VHS.  So why take this one class of work?
 25              They can go, but let them get a
 26  videotape.  DVD is not the only alternative when it

                                                   PAGE 198
  1  comes to a motion picture.  In fact, it's probably
  2  the least accessible alternative.
  3              So I would say you have to wait.  Why
  4  not wait and see what happens before you would say
  5  it's a class of work that should be exempt?
  6              MS. PETERS:  Does anyone else have any
  7  questions?
  8              (No response.)
  9              MS. PETERS:  If not, our hearings in the
 10  District of Columbia are closed, and I want to thank
 11  all the witnesses and even those who sat in the
 12  audience and stayed through.
 13              Thank you very much.
 14              (Whereupon, at 3:50 p.m., the hearing in
 15  the above-entitled matter was concluded.)