WARNING: White space and line breaks may not be correct, but page numbering should be accurate. The index has been slightly changed so that it reflects the contents appropriately — changes are marked with square brackets.
PAGE 1
LIBRARY OF CONGRESS
+ + + + +
UNITED STATES COPYRIGHT OFFICE
+ + + + +
HEARING ON EXEMPTION TO PROHIBITION ON
CIRCUMVENTION OF COPYRIGHT PROTECTION SYSTEMS
FOR ACCESS CONTROL TECHNOLOGIES
+ + + + +
DOCKET NO. RM 9907
+ + + + +
Thursday,
MAY 18, 2000
+ + + + +
The hearing in the above-entitled matter was
held in Room 290, Stanford Law School, Crown
Quadrangle, Stanford, California, at 2:00 p.m.
BEFORE:
MARYBETH PETERS, Register of Copyrights
DAVID CARSON, ESQ., General Counsel
RACHEL GOSLINS, ESQ., Attorney Advisor
CHARLOTTE DOUGLASS, ESQ., Principal Legal Advisor
ROBERT KASUNIC, ESQ., Senior Attorney Advisor
PAGE 2
I-N-D-E-X
Panel I:
Siva Vaidhyanathan ...............................[.9 ]
New York University
Karen Coyle .....................................[.21 ]
California Digital Library
University of California
Linda Crowe .....................................[.30 ]
American Library Association
Laura Gassaway ..................................[.34 ]
American Association of Universities,
American Council on Education, and the
National Association of State Universities
and Land-Grant Colleges
[ Questions and Answers ...........................47 ]
PAGE 3
P-R-O-C-E-E-D-I-N-G-S
(2:15 p.m.)
MS. PETERS: Good afternoon, and welcome
to Stanford University Law School. We'll be hearing
from one panel this afternoon, and we'll begin again
tomorrow at 9:30 in the morning to hear two panels
throughout the course of the day. The schedule for
the Stanford hearings is available today outside,
and it's also posted on our website.
First of all, I'd like to thank Stanford
University Law School for agreeing to host these
hearings, and in particular we thank Professors Hank
Greely and Paul Goldstein and Julie Viner, the Law
School's Director for Special Events for all their
assistance. We're very pleased to be here and we're
grateful to the university and law school for making
these facilities available to us.
As you probably know, these hearings are
part of the ongoing rulemaking process mandated by
the Congress under Section 1201(a)(1) of Title 17 of
the United States Code. Section 1201 was enacted in
1998 as part of the Digital Millennium Copyright
PAGE 4
Act. And I look out and see there are some people
who are not too thrilled about this Act.
Nevertheless, it is in force, and
Section 1201(a) provides that no person shall
circumvent a technological measure that effectively
controls access to a copyrighted work. However, this
prohibition does not go into effect until October
28th of this year, which is two years after the DMCA
went into effect.
Section 1201(a) provides for this
rulemaking in which it's the Librarian of Congress
who may exempt certain classes of works from the
prohibition against circumvention of technological
measures that control access to copyrighted works.
The purpose of the rulemaking proceeding
is to determine whether there are particular classes
of works as to which users are, or are likely to be,
adversely affected in their ability to make non-
infringing uses if they are prohibited from
circumventing technological access control measures.
Pursuant to the Copyright Office's
Notice of Inquiry, which was published in the
PAGE 5
Federal Register on November 24, 1999, we received
235 Initial Comments and 129 Reply Comments, all of
which are available for viewing and downloading on
our website.
Two weeks ago, we conducted a first
round of hearings at the Library of Congress in
Washington. After the hearings here at Stanford, we
will accept a final round of post-hearing comments.
These post-hearing comments are due on Friday, June
23rd. In order to allow interested parties adequate
time to respond to the hearing testimony, we intend
to post the transcript of all hearings on our
website as soon as the transcripts are available.
We are also recording the testimony for streaming
and possible downloading from the Office's website.
The audio files from the hearings at the Library of
Congress are currently available on our website.
The transcripts will also be posted on
the website as originally transcribed, but obviously
everybody who testifies will have an opportunity to
correct any errors in these transcripts. When those
corrections are received, we will put the corrected
PAGE 6
transcripts on the website.
Those of you who are here to testify
have already been advised that we intend to put the
recording and transcripts on the website, and by
your appearance here we understand that you have
consented for us to do this. We are also putting
written statements of testimony submitted on the
Office's website until the transcripts are posted.
The Comments, Reply Comments, Hearing
Testimony and Post-Hearing Comments will form the
basis of evidence for my recommendation to the
Librarian of Congress. Before making that
recommendation, I am to consult with the Assistant
Secretary of Communications and Information of the
Department of Commerce. We have already begun these
consultations and expect to have more discussions
with the agency that the Assistant Secretary heads -
- which is NTIA, the National Telecommunications and
Information Administration.
After receiving my recommendation the
Librarian will determine by October 28, which is the
deadline, whether or not there are any classes of
PAGE 7
works that shall be exempted from the prohibition
against circumvention of access control measures
during the three years that will begin on October
28th in the year 2000 forward.
It is clear from the legislative history
that this rulemaking proceeding is to focus on
"distinct, verifiable and measurable impacts."
Isolated or de minimis effects, speculation or
conjecture, and mere inconvenience do not rise to
the requisite level of proof. Any recommendations
for exemptions must be based on specific impacts on
particular classes of works.
The panel will be asking some tough
questions of the participants in an effort to define
the issues. We stress that both sides will receive
difficult questions, and none of the questions
should be seen as expressing a particular view by
the panel. This is an ongoing proceeding, and no
decisions have been made yet.
The purpose of these hearings is to
further refine the issues and get the evidence that
we need from both sides. In an effort to obtain all
PAGE 8
relevant evidence, the Office reserves the right to
ask questions in writing of any participant in these
proceedings after the close of the hearings. Any
such written questions asked and answers received
will be posted on our website.
What I'd like to do now is introduce our
panel. To my immediate left is David Carson, who's
the General Counsel of the Copyright Office. To my
immediate right is Charlotte Douglass, who is
Principal Legal Advisor to the General Counsel. To
David's left is Rachel Goslins, who's an Attorney
Advisor in our Office of Policy and International
Affairs. And to Charlotte's is Rob Kasunic, who is
a Senior Attorney in the Office of the General
Counsel.
We're about to begin. And we have been
asked by our Reporter if any of the witnesses have
written statements that they will be reading from,
it would help them tremendously if you could give
them a copy of your written statement.
I see the panel is actually already in
place, and I have received your order of preference.
PAGE 9
So we will start with you, Dr. Siva Vaidhyanathan -
- I can't say it.
DR. VAIDHYANATHAN: Vaidhyanathan.
MS. PETERS: Vaidhyanathan.
DR. VAIDHYANATHAN: You were getting
there. You would have been fine.
MS. PETERS: And then we'll go to Karen
Coyle, who will represent the California Digital
Library. And then we'll go to the American Library
Association, with Linda Crowe. And finally, we'll
have Laura Gassaway, who will be representing the
American Association of Universities, and the
American Council on Education, and the National
Association of State Universities and Land Grant
Colleges.
Okay, it's yours.
DR. VAIDHYANATHAN: Good afternoon. My
name is Siva Vaidhyanathan. I'm a media studies
scholar and cultural historian at New York
University. Thank you for allowing me to testify
today. I am not a lawyer or a law professor. I am
not a librarian. I am a user, a reader, a teacher,
PAGE 10
a researcher and a citizen. Worse than that, I'm an
unauthorized user. I am a fair user.
I'm deeply concerned about the potential
harm the anticircumvention power of the Digital
Millennium Copyright Act will have on media studies
and scholarship in general. I am just as concerned
about the effects that this emerging leak-proof,
highly regulated electronic regime could have on
American culture and deliberative democracy.
Today, most of the subjects of media
studies research are widely accessible. A handful
of works of film and early radio are even in the
public domain. So scholars and teachers benefit
from ample and easy sources. But that might change
over the next few decades as more works -- even
those already in the public domain -- become
enclosed behind electronic locks and gates, and
delivered in streams of digital signals. The
potential for abuse of this technology and the legal
power behind it is immense.
You will notice that most of the tenses
I am employing in this testimony are subjunctive and
PAGE 11
conditional. As you may have gathered from all the
previous testimony on this issue, this law has
caused little harm yet, save the immeasurable and
undocumentable chilling effect it might have had on
those frightened by the combined cultural power of
media companies and the state.
Yes, my fears are speculative and
alarmist. But they are not outlandish nor
inconceivable. Not every media company is as
harmless as a mouse. Not every government is
invested in the free flow of ideas and information.
Call me Cassandra if you must, but
please imagine my classroom 35 years from now. As I
do every semester, I plan to show my class a film
that explores conflicting values and loyalties
during wartime: Casablanca. But sometime during
the 2020s, all the VEHICLES players at New York
University fell into disrepair.
The library has the tape, but nothing to
play it on. Kim's Video Store on Bleecker Street is
now just a Starbucks. Blockbuster is now a hand-
held device instead of a large store. The only
PAGE 12
means for showing this film to my class is to have
it streamlined in via satellite feed into a video
projector.
Casablanca would have entered the public
domain the previous year, assuming Congress does not
extend the term once again. But it remains well
protected, "double-wrapped" by both "click-wrap"
contract and technological access controls.
So my class settles down. On my palm
computer I call up the interface page for either
via-Disney-AOL-Warner-Mount or it's competitor
MicroFox. I enter my "educator's code." I hit
"play." Nothing happens. Once again, I must do my
poor Bogart impression for the class in lieu of this
film.
So what happened? Well, perhaps this
was my second class of the day and the service
blocks fair users from watching a film twice.
Perhaps the NYU Library could not negotiate a
contract renewal with the company and stay within
its tight budget. Perhaps my "educator's code"
revealed me to be the one who wrote that scathing
PAGE 13
review of the major summer blockbuster of 2034,
Battlefield Earth IX: The Psychlo's Revenge.
Perhaps the company identified me as someone who
testified against the industry at a Copyright Office
hearing way back in May of 2000.
The Digital Millennium Copyright Act
grants complete power to allow or deny access to a
work with the producer or publisher of that work.
The producer may prohibit access for those users who
might have hostile intentions toward the work. This
power could exclude critics and scholars. Most
likely it would exclude parodists and satirists as
well.
The anticircumvention provision shifts
the burden of negotiating fair use from the user,
and the courts in the case of likely infringement,
to the producer. The producer has no incentive to
grant access to any user who might exploit the work
for fair use -- including scholarship, teaching,
commentary or parody. Under this regime, a user
must agree to terms of contract with a monopolistic
provider before gaining access. One must apply to
PAGE 14
read, listen or watch.
But why would a company restrict access
to its product? In his testimony at these hearings
in Washington, D.C., Bernard Sorkin, senior counsel
for AOL-Time-Warner asserted that the content
industries "cannot exist and prosper by barring
their works from public availability," and any such
fear "flies in the face of economic logic."
Sorkin would be correct if his industry
were perfectly competitive. But the very economic
basis of copyright is that we need a state-granted
limited monopoly to create artificial scarcity where
natural scarcity could not exist. Once the content
industry has a perfect, technological monopoly on
high-demand back-catalog films such as "Casablanca,"
the industry has an incentive to limit the number of
times it could be shown for free. Restricting free
and "fair" use bolsters monopolistic pricing power.
And companies have great incentive to restrict
harsh critics and parodists from viewing their
films.
I am very concerned that the Librarian
PAGE 15
of Congress is entrusted with composing a list of
"classes of works" that might be exempted from the
anticircumvention provision. As someone whose work
spans from Twain to 2 Live Crew, and includes such
sources as legal documents, private letters,
diaries, movie soundtracks, and television and film,
I have serious misgivings about a government agency
allowing greater access to some works over others.
All elements of expressive culture are
fair game for scholarship -- at least they are today
and for a little while. If any categories of works
should be exempted from the provision, then all of
them should. The Librarian of Congress should not
have the power to favor one type or subject of
scholarship over another.
But as Arnold Lutzker testified at your
hearings in Washington, D.C., "classes of works" are
not "categories of works." Privileging one
"category of work" might let you exempt literary or
scientific work but not music or film. And I assume
that the Librarian of Congress recognizes this
distinction and plans to execute his power based on
PAGE 16
it.
Any proposal that libraries and
librarians enjoy some sort of special exemption from
the legal threat inherent in the DMCA would not
satisfy my concerns. First, libraries are not users
per se, and much scholarship occurs outside of
libraries. Second, such a move would turn
librarians into "copyright cops," who would be
entrusted to determine which uses would be fair and
which would not.
Fair use is something I as a user must
be willing to employ without having to apply for it.
All fair use is unauthorized. If a content company
has a problem with my use, bring it on, let's go to
court. But let's not involve a third party in the
dispute, either by requiring her to preempt my use
or by threatening her with liability for any
infringing use I might make.
Copyright was invented in the British
Isles as an instrument of censorship, a way of
regulating the traffic of ideas through the
selective granting of licenses. Fortunately,
PAGE 17
copyright has grown in the American context as
something very different. Up until a few years ago,
when it still embodied a balance among creators,
publishers and users, copyright served as an
essential foundation of democratic culture. Its
very imperfections helped American culture and
commerce thrive in the past 200 years.
American users have benefitted from the
proliferation of American cultural products, but
they have also enjoyed four important safety-valves
against the censorious power of copyright: the
first sale doctrine; fair use; allowances for
private non-commercial copying; and the
idea/expression dichotomy which allows facts and
ideas to flow freely while protecting specific
displays of those ideas.
Now, all four of these notions are under
attack by the content industries through the World
Intellectual Property Organization treaties. The
DMCA is only the first step of this process.
If the film and music industries
continue to tighten their reins on use and access,
PAGE 18
they will strangle the public domain and the
information commons. This trend presents a much
greater threat to American culture than just a
chilling effect on scholarship. Shrinking the
information and cultural commons starves the public
sphere of elements of discourse, the raw material
for decision making, creativity and humor.
So what should we do about this
pernicious trend? How can we revive the beauty and
genius of the American copyright system and maintain
its positive externalities on our culture and
democracy?
Well, for a start: the Librarian of
Congress should exercise his power to exempt from
the anticircumvention prohibition any works that are
not easily and widely available for teaching,
research and unauthorized reading in an unsecured
format. Unsecured formats might include VHS
videotapes, printed paper volumes or standard
compact discs. That means these products must be
archived in a public or university library
somewhere.
PAGE 19
Second, the Librarian of Congress should
ensure that the anticircumvention prohibition does
not apply in any case to material not covered by
Title 107, the Copyright Act. Therefore, a
publisher could not stifle access to works in the
public domain, to government documents, or facts, or
ideas or data.
Third, the Librarian should exempt any
works that enjoy technological controls that deny
access based on editorial concerns. There are no
bad readers, authorized or not.
But ultimately, the Librarian's actions
-- even if he provides as broad an exemption as
possible -- will do little or nothing to restore the
sense of public interest to copyright law. It would
only be an endorsement of that value. Congress has
granted the Librarian the power to exempt the use of
certain classes of works from prosecution, but not
to exempt the sale and distribution of the very
anticircumvention technologies and devices that we
users would require to exercise our rights in such
an environment.
PAGE 20
That's like granting us the right to
record television shows for later viewing, but
prohibiting the sale of video recorders. It's like
having freedom of the press, but not the freedom to
own a press. Congress should revisit this issue. I
trust Congress would recognize the value of an
imperfectly regulated yet balanced copyright system.
The Digital Millennium Copyright Act is
an absurd, Orwellian law, and it should be
abandoned. If Congress does not fix it, I hope the
U.S. Supreme Court -- which several times in the
1990s stood up for users' rights -- would once again
rescue our copyright system from those who would
corrupt it.
On one final note, I offer an anecdote
that should illustrate the value of unauthorized
use. In December of 1906, Mark Twain donned his
white suit to testify before a congressional
committee on the new copyright bill. Twain
expressed his desire for copyright to be expanded
from mere expressions to ideas as well, and to be
extended in perpetuity.
PAGE 21
While Twain described the very copyright
regime we seem to have built in his absence, a young
actor in New York was busy reading a short story by
Twain called, "The Death Disk," a fable set in the
time of Cromwell's rule of England. The young actor
made unauthorized use of Twain's story -- which
Twain himself had lifted from Thomas Carlyle -- to
make a short silent film in 1909 for the American
Mutoscope and Biograph Company. In his short films,
this enterprising young man worked out the technical
challenges of narrative filmmaking. That man's name
was David Wark Griffin, the father of American film.
Thank you.
MS. PETERS: Thank you. Next Karen.
MS. COYLE: Good afternoon. My name is
Karen Coyle, with the California Digital Library at
the University of California. And I'm here to speak
to you as a practitioner of library technology, not
in any way as an expert in law. And I must say that
what I say here are my own words. This is not
policy of the University of California.
I should give you a little bit of an
PAGE 22
idea of my expertise and what I have been working
on. The California Digital Library serves all nine
University of California campuses. We have an
online union catalog of about 10 million titles, and
about 18 million holdings. We have available online
66 abstracting and indexing databases for our users,
and we have eight of those we've actually mounted on
our own computers. We provide our users with access
to over 4,500 electronic journals and other digital
works.
My own expertise is primarily in the
development of databases, and I estimated the other
day that I have probably overseen the development of
databases and the loading of about 50 million
bibliographed records.
Because there isn't a great deal of
time, I chose three of the questions that were in
your original call for comments here. And I will
just answer those. All three of them have to do
with technology.
The first one is No. 2, "Do Different
Technological Measures Have Different Effects on the
PAGE 23
Ability of Users to Make Non-Infringing Uses?" And
I had a very interesting experience just this week.
You may know that Xerox and Microsoft
recently announced that they were going to become
content providers. And along with this, they have
their own access control standard called XrML. And
since this is part of my job, I tend to follow these
standards, so I went out to the site to download it.
In order to read it, I had to also download a
special version of Adobe Acrobat, and I had to give
my e-mail address so that I could be sent the key so
that I could open up the document.
I did this. Opened the document, it was
117 pages. I closed it and decided I'd look at it
another day. It so happens that in my office I have
two computers, and they're connected together and I
store everything on basically a shared volume. And
as far as I'm concerned, they're just two windows
into my work space.
So, earlier this week I got a chance to
open up that document again, and I went to one of my
computers and went to open it up. And I got an
PAGE 24
error message. I realized it was the other computer
and I hadn't downloaded the right version of Adobe
Acrobat. I downloaded the right version of Adobe
Acrobat, I'm still getting a rather cryptic error
message.
And it took me a few tries, but after a
while I basically deduced that this document can
only be opened on the computer where it was
downloaded. Well, I decided to go back and read the
legal "I agree" agreement, which of course I hadn't
read the first time. None of us ever do. And there
was no mention in there of access controls at all.
So I went back to the web page where I
downloaded it, and there was no mention of access
controls. On Tuesday I went to the XrML site and
said, "It looks to me like this is limited to just
one CPU. Is this the case?" And as of this morning
I still haven't gotten an answer from the
developers.
There are two sort of interesting
technological aspects to this. One is that access
controls may be invisible to the user. And these
PAGE 25
were definitely invisible to me. I knew that the
access control had to do with Adobe Acrobat, that I
had to have a key. But there was nothing telling me
that this was only readable on a single computer.
The other interesting aspect is that the
access control and the license may not be the same.
Now, I can't find, really anywhere, a license that
says what my license is in relation to this
document. The license really has to do with
relation to what I would develop using the XrML
standard.
But interestingly enough, the document
seems to be licensed to me. They asked for my name,
my address -- that had to be filled in -- my e-mail
address. And yet the access is limited to an
inanimate object on my desk, which is of a very
temporary nature. Because as we know, computers get
upgraded every three to five years. This one's four
years old, it won't be around very long. I assume
that when I upgrade my computer equipment, I'm not
going to be able to read this file.
Now, when you make this question about
PAGE 26
"Do Different Technological Measures Have Different
Effects?" the answer is yes. But when I sat down to
try to think of all the different technological
measures and all the possible effects, I realized
that this is going to take a really serious study.
I don't think we really know what all the effects
are, and some of them are hidden, some of them
aren't obvious. I really think that what we
need for this technology is something that I like to
call a social impact study. That when new
technology comes up, that someone needs to look at
it in terms of not just what does the technology do,
but what's the impact it's going to have on society?
And I turn to you, because at the moment
I don't know of any other agency that might be in a
position to bring together a group of technologists,
or somehow charter an investigation of this nature.
Of really learning what the controls are and what
the impact they have on access. Because I don't
think that we have an answer for that today.
The next question that I wanted to look
at was the one that says if there are works that are
PAGE 27
available, both in basically digital copy and hard
copy, is the availability of the hard copy
essentially make it so that access to the digital
copy isn't as important.
And here I speak from experience that
we've had in developing computer systems over about
20 years. Because I started in 1980 with the
University of California on these systems. I
mentioned that we have sort of eight core databases
that are on our system. One of them is National
Library of Medicine's Medline, which we made
available 12 or more years ago, obviously to serve
our medical and biology research staff and students.
There is a paper equivalent Index Medicus.
When we made it available we were very
surprised by the amount of use, and we continue to
be surprised by the amount of use. This database
accounts for about 30 percent of the use on our
system amongst these core databases. This is quite
a surprise. There have been times when it actually
rivaled the use of the online catalog.
I can't explain it, no one else I know
PAGE 28
can explain it. But what we do know is that by
making information available digitally, we aren't
giving the same access that we gave in the paper
copy. And that our users are finding new ways to
make use of the information, and are discovering new
information.
And I think we all know that when you
search in a database you have the ability to
discover information that you might not have
discovered in the hard copy work. Because the
ability to search is so much better.
The exciting thing about working in
digital libraries is that we're really developing a
new kind of scholarship, and it is different to the
scholarship that took place in the paper world. And
I don't think we'd want to go backwards to that
paper scholarship, and pretty soon we really won't
be able to.
And then the last question that I wanted
to address--down here, it's No. 18: "In What Ways
Can Technological Measures That Effectively Control
Access To Copyright Works Be Circumvented, and How
PAGE 29
Widespread Is Such Circumvention?" Well, I do not
know of any library that has a job title,
Librarian/Cryptographer. We really -- we don't have
cryptographers on our staffs. I don't expect us to
have them in the near future.
I was thinking about the other day that
-- I believe it was last year or the year before,
the Electronic Frontier Foundation did a crypto-
experiment in which they spent about a year --
actually, a little over a year -- building a special
computer to the tune of about $250,000 so that they
could experiment with breaking through 56-bit DES
encryption.
And apparently -- John Gilmore just told
me that it actually took 56 hours. And then once
they had that computer built to do it, and it's just
coincidence that it's the same number as the number
of bits.
Clearly, it is not really economical in
most cases for a library to use this type of
technology in order to gain access to works.
Encryption really is a question of economics, and
PAGE 30
the cryptographers will always tell you there is no
unbreakable encryption. There's just encryption
that it's too expensive to break for what you're
going to get out of it.
I can't imagine libraries having the
ability to break through strong copy controls. And
I think that this is, in a way, unfortunate because
I am quite convinced that we will lose some works.
If a library does find that it needs to invest its
time and resources in trying to free a work in order
to make it available to the public, I feel they are
doing a great public service and we should support
them in that. It is not something that I can see
that any library is going to undertake idly.
I don't have a recommendation for you as
to what the wording should be, in terms of what
exemptions there should be for libraries, because I
couldn't begin to speak that language. And I will
let the lawyers do that for me. But thank you very
much. MS. CROWE: Good afternoon. I
guess I'm going to start with the disclaimer, since
I'm far from a copyright expert. This testimony is
PAGE 31
short and, I hope, to the point.
My name is Linda Crowe, and I'm the
Director of the Bay Area Library and Information
System, the Peninsula Library System and the Silicon
Valley Library System. Each is a consortium of
public libraries covering the core of the Bay Area,
including all the public libraries in the counties
in alphabetical order: Alameda, Contra Costa, San
Francisco, San Mateo and Santa Clara.
The service area consists of 25
individual jurisdictions, and over 175 outlets or
main libraries and branches. All of these outlets
have public access to electronic resources. Some
with only a single terminal and some with more than
100 terminals open for public use. And they are in
use from the time the library opens until it closes.
Public libraries see themselves playing
a critical role in providing accurate access to
information. And it's particularly important that
new technologies support and enhance, not impede,
the ability of public libraries to provide these
services. Many consider the public
PAGE 32
library as the public transportation to the Internet
or the superhighway. And I suppose that is somewhat
descriptive of their role. Much has been made of
the digital divide in this state and throughout the
country. The area that the libraries we serve
represent, one, if not the most wired area in the
country. Yet, there are information haves and have-
nots, and the digital divide is as real here as
anywhere else.
Where else can many teenagers who live
in East Palo Alto, just down the road, parts of West
Oakland or Bayview/Hunter's Point go to access the
resources he or she needs to complete a homework
assignment, or do research on a subject of personal
interest?
As three consortias, we are spending
more and more scarce dollars on resources in
electronic formats. For example, this fiscal year
we will spend close to $1.5 million on electronic
databases. Next year we will probably spend more,
and we are constantly trying to meet requests for
people who want more and need more.
PAGE 33
We need to be able to assure our users
that within the limits of fair use, that the people
who need them will have them available. I mentioned
the digital divide, and that public libraries may be
the only place some people may be able to use these
resources.
We also find that more and more people
who have access to the Internet elsewhere, come to
the public libraries because librarians have
organized the information and can help access what
the user really needs more quickly and more
effectively.
These users need research done in
whatever format is available. And public libraries
need to be able to supply these formats without
undue technological constraints, costs or charges.
At this point, most public libraries are not talking
at meetings much about the DMCA, copyright and fair
use because they have lived and accepted the
principles that they've had for years.
Now, we have this broad new law that
confuses and concerns us, because of the ambiguity
PAGE 34
and apparent contradiction. On one hand we have the
anticircumvention section 1201, and on the other
hand -- as I understand it -- we have the provision
to 21201 that says, "nothing in this section shall
affect rights, remedies, limitations or defenses to
copyright infringement, including fair use under
this title."
We need a precise, a clear precise sense
of what is and is not proper, so we can exercise
those rights. Without this preciseness we are
likely to err on the side of caution, possibly
restricting access to information to those who need
it, and denying them the rights to use it in ways
that are legal under current copyright law.
I would urge the Librarian to issue
exemptions that protect the rights of content
owners, but allow us to serve our public. That is,
the people who use and depend on public libraries.
Thank you.
MS. GASSAWAY: Good afternoon. My name
is Laura Gassaway. I'm here today on behalf of the
Association of American Universities, the National
PAGE 35
Association of State Universities and Land-Grant
Colleges, and the American Council on Education.
Thank you so much for the opportunity to appear
before you.
I will make four points today. First,
an examination of the purpose of today's hearings.
Second, our experience to date with access controls
and their first cousins, license restrictions.
Third, how the proposed business models presented by
copyright holders will interfere with the use of
copyrighted works in teaching, learning, scholarship
and research. And lastly, what this means for your
task in the rulemaking proceeding.
The bottom line for us is exempting from
the realm of prohibition on circumventing conduct
any uses for which the user had lawful initial
access. Further, we believe two types of works that
were identified in our opening statement -- fair use
works and thin copyrights -- are particularly
vulnerable. And equities are stronger toward
exempting them.
Congress was concerned that the
PAGE 36
possibility of technological protection measure,
TPMs, would be applied by copyright owners in ways
that interfered with lawful uses of copyrighted
works. Ways that upset the copyright balance that
has long served owners and users of protected works.
You've heard copyright holders in these
hearings state that their future economic health
will be completely compromised if there is an
exemption for their works. Nothing could be further
from the truth. The risk to copyright holders is
negligible.
Nothing in this rulemaking affects the
availability of the prohibitions contained in
Sections 1201(a)(2) and 1201(b). For example, the
manufacture and distribution of circumventing
devices and the performance of circumventing
services. Nor will any copyright remedies for
infringement be exempted. In any case of
infringement Section 1201(a)(1) is redundant.
Moreover, nothing in this rulemaking
will stop copyright holders from applying TPMs. The
question is whether we invoke federal courts to
PAGE 37
reinforce anticircumvention. Additionally,
contractual rights will continue to apply.
Our experience with access controls to
date, whether technological protection measures or
licensing, have been varied. We, of course, have
had much more experience with licensing than TPMs to
date. Most of our experience has
been with passwords, which are the kind of basic or
primary access control technology that does not
cause us concern. In fact, our own Institutions are
using passwords on web pages, course materials, and
the like that we develop.
We have also dealt with location
restrictions, especially in license agreements where
the university pays a license fee but access is
restricted to on-campus use. This has been a
problem for us when we're dealing with distance
learning students, medical interns and the other
students who are enrolled but who are physically
located elsewhere than the campus for that
particular semester. And we've had to deal with
authentication of those users to create access for
PAGE 38
them.
Sometimes publishers have not allowed us
to do that. They have restricted it to the domain
name, regardless of the fact that these were
enrolled students. So they have restricted it to
the place, regardless of the fact that these were
enrolled students.
We've also seen restrictions on who may
access the material. Usually it is students,
faculty and staff -- pointed out to you by earlier
witnesses in these hearings. The problems for
state-supported Institutions who also have
responsibility to serve citizens of their area and
their state. Increasingly, this is causing
difficulty when we have sole source government
information that's embodied in these electronic
databases, et cetera.
Another problem that we've had with
licensing has been the removal from databases of
materials during the license period, with no advance
warning. And I'm specifically referring to the
removal of the French legal materials from the Lexis
PAGE 39
database very recently.
Now, one could certainly argue that
Lexis has violated the license agreement with law
schools in doing that, but that's really not our
purpose here today. Just to point out that these
are the difficulties we've had.
There have also been licensing
restrictions on use, where a particular product
could be used for teaching and demonstration but not
for research. Sometimes licenses to use have been
denied because the copyright holder sees their
market as a non-educational model. It just doesn't
fit the use that we asking, so they have refused to
license entirely, or even to respond to our request
for a license.
Today's contractual restrictions are
tomorrow's technological protection measures. With
a license agreement, however, institutions have had
some ability to negotiate the terms. With TPMs, the
ability to negotiate is lost.
We have had one relevant experience in
my own library with TPMs and the problems with them.
PAGE 40
I call these "disappearing CD-Roms." Actually, we
still have the CD-ROM, it's the content that's
disappeared. Apparently they were date-
sensitive, although this was not included in the
license agreement, and there was no advance warning.
The library was left with nothing. This happened
to us with Westlaw CD-ROMs. The publisher admitted
that it was a mistake and agreed to replace them.
But we were several weeks without the material.
So far, publishers have not implemented
many such controls. But according to their
testimony during these hearings, this is about to
change. The institutions represented by our
organizations are seriously concerned about what
we've heard from copyright holders at these
hearings. Clearly, they intend to merge access and
use controls. The business models they discuss make
it clear.
At what point do access controls and use
controls merge? One could argue that when a
university acquires access to materials through a
license agreement for its enrolled students, and yet
PAGE 41
off-campus but enrolled students are not permitted
access, this is a type of use control. We paid for
access for these students, but they still cannot use
the material.
The copyright holder is differentiating
between users, all of whom are enrolled students.
Is this access or is this use? We don't know, and
we can't tell when we are liable for such conduct
should we circumvent.
Copyright holders clearly want to merge
access and use, as their testimony indicates. They
say they want to keep anyone from breaking into the
bookstore and stealing a book. What it seems to me,
and to us that they are saying is that they want to
stop anyone from breaking into the book, even after
they have lawfully acquired access to the book.
The pay-for-use world that publishers
and producers have discussed at these hearings are
use controls for higher education. Such merger is
completely inconsistent with the congressional
scheme. Congress treated access and
use controls very differently in the statute, and
PAGE 42
the Copyright Office should take into account what
copyright holders have said during these hearings
because the risk to users of copyrighted works is
considerable.
The proposed business models presented,
we believe, will interfere with the use of
copyrighted works for teaching, learning,
scholarship and research. Fair use is fundamental
to educating America's students, producing
scholarship, research and the like.
College and university libraries acquire
copyrighted works by purchase, gift or license,
faculty, students and staff then have the right to
use these works for education. How will an
educational institution be able to function with
pay-for-use?
For example, the single listen. A
faculty member plays the song in class once. The
students then ask to have it repeated because they
didn't quite understand or get enough of the
material for the educational purposes. The
individual students then need to listen additional
PAGE 43
times for reinforcement, or to study for exams. How
is this going to work for higher education?
We also strongly support the statements
of library associations concerning the preservation
of digital works. The cultural and scholarly record
is critical for researchers and teachers, and
indeed, we believe for society. The makers of
silent films saw them only as works for
entertainment.
Fortunately, there were libraries that
preserved these works as important cultural records.
How much poorer would be our understanding of
society, and of early movie-making, had these works
been lost to the world. The same is true for things
like greeting cards, postcards, old photographs,
advertising posters, things that clearly were not
originally intended for education.
Fifty years from now scholars will want
to look at the early digital materials to determine
how the industry developed, and what it said about
people's taste and interest. What scientific
information was deemed worthy of distribution in
PAGE 44
digital format.
One witness dismissed archiving of
digital works as irrelevant to society. The
Copyright Office and the Library of Congress needs
to think hard about turning these decisions on
preservation over to owners with this attitude.
With this information, how should the
Copyright Office exercise this rulemaking power?
Congress intended primary controls on access when it
established the distinction between access and use
controls. For that reason, we believe the classes
exempted from the act of anticircumvention should be
those for which the user had lawful initial access.
In the Academy, we do not differentiate
between works for entertainment and works for
teaching, learning and scholarship. The discipline
in which they are used makes a great deal of
difference. My colleague from NYU pointed out a
good bit of that.
We have faculty who study the history of
rock and roll, so how can sound recordings -- works
originally intended for entertainment -- not be
PAGE 45
subject to defeating TPMs in cultural studies,
history, et cetera? The works were intended for
entertainment originally, the use that it's made for
them in education is quite different. It is
instruction and research.
Use of these works in the Academy has
been fair use for 200 years. There are two classes
of works that probably have greater universal use in
higher education than others. In other words, all
disciplines make use of these works.
Therefore, these works are those for
which the balance leans most heavily for a broad
exemption. And the failure to do so will
significantly hurt teaching, learning, scholarship,
et cetera.
First of all, fair use works. Works
that due to their nature are likely to be lawfully
used under the fair use doctrine. This would
include, at a minimum, scientific and social
databases, textbooks, scholarly journals, academic
monographs and treatises, law reports and
educational audio/visual works.
PAGE 46
You should probably also think about
writing a regulation that would exempt a work not on
this list, but because of its use in a particular
context, where it was highly likely the use might be
a fair use. And an example might be motion pictures
in a film school.
The second type of work that we believe
is especially -- needs a broad exemption are factual
works, those with thin copyrights. Those that
contain limited copyrightable subject matter, and
are fact-intensive, or that contain significant
public domain materials.
Examples of these works would be maps,
some databases, histories, statistical reports and
abstracts, encyclopedias, dictionaries, newspapers
and the like. We believe that the exemption you
are considering should be broad for scholarship,
education and libraries.
The United States has the finest
academic system in the world. Likewise, we have the
strongest copyright industries. Both have thrived
under copyright and with fair use. Responsibility
PAGE 47
falls on your office and this rulemaking to see that
the balance is preserved.
Thank you.
MS. PETERS: Okay, thank you. We want
to go to the panel questioning. And the questioner
can ask a person specifically, or can throw it out
to the panel. If they throw it to the panel, anyone
who feels like jumping in and contributing, please
do. And even if a question is directed to an
individual, if another person feels that they have
something to add, please feel free to add and say "I
want to add to that."
We're going to start the questioning
with Rachel Goslins of the Policy and International
Staff.
MS. GOSLINS: Good afternoon. This
panel is especially valuable and helpful to us
because of all the types of people that we have
technologies before us. Librarians, academicians
and users have the most kind of hands-on experience
of both the works and the technologies that we're
talking about.
PAGE 48
So my questions are going to be largely
focused on actual problems or conditions that you
experience in the course of administering your
libraries or teaching your classes.
First, in a way we're relatively lucky
in this study, because we're asked to look at access
control technologies, which are probably the oldest
technologies we have around in the relatively young
world of the digital environment. Password
protection and encryption, IP domain names,
protections have been around for a while, and so
there should be some backlog of experience with
them.
And my first question is directed to the
whole panel. Considering that these testifying have
been around for a while, and considering that up
until -- and at the moment the act of circumventing
them is not illegal, so I'm not asking anybody to
confess to anything. Are there times or situations
in your day-to-day businesses where you have to
circumvent these kind of protections or forego the
use of work?
PAGE 49
DR. VAIDHYANATHAN: There are examples
where I would like to circumvent, but it doesn't
mean I either have or have been able to. For
instance, I use Lexis/Nexis rampantly in my
research. And I'm licensed through New York
University Library to read Lexis/Nexis database
information from my IP address on my university-
issued computer. But when I travel, I can't.
I wish I could. I wish I could have
access to that, but once again the license is sort
of computer-specific, or machine-specific as opposed
to licensing the access to me as a scholar.
MS. GOSLINS: And what is it, exactly,
that prohibits you from circumventing these
controls?
DR. VAIDHYANATHAN: Well, because the IP
address allows the server to let me into that
particular page. It's what checks whether I'm okay.
MS. GOSLINS: So in this case, it's the
technology? It's not the lack or existence of a
legal prohibition in doing so, it's just that the
technology is effective?
PAGE 50
DR. VAIDHYANATHAN: Right.
MS. GOSLINS: Are there other
experiences that people have had?
MS. COYLE: I think that describes most
of our experience, which is that in things like IP
address checking we have vendors who limit -- most
our vendors, actually, limit to certain IP
addresses. And it's not that our users or our
librarians wouldn't sometimes like to get around
that. But most people don't know how.
So the technology is actually effective.
And I think that's why we don't have a lot of
experience in trying to circumvent controls. Some
of them virtually cannot be circumvented. I mean,
it can be very difficult. The economy of
circumventing these controls is really prohibitive.
MS. GOSLINS: That's actually a point I
wanted to pick up on.
MS. PETERS: May I comment on this?
Which is, you said that the control came about with
regard to your contract, your license. So,
actually, I guess your university signed a license
PAGE 51
that binds its employees. So is your complaint
against the license, or is it the license plus the
technology?
DR. VAIDHYANATHAN: It's the license plus
the technology. I mean, one requires the other.
MS. GOSLINS: I'd like to pick up on Ms.
Coyle's point. But before doing that, I'd just like
to make sure nobody else on the panel has examples
of times that they have to circumvent.
MS. GASSAWAY: There have been times
that we've had to circumvent, specifically with
license
to --
MS. GOSLINS: Arrest her.
(Laughter.)
MS. GASSAWAY: Specifically with license
to Westlaw, because we're under the law school
contract for each individual's personal password.
You know, if someone comes in off the street with a
reference question, but it is -- we've already
looked at it, we know whether or not -- it's not for
law practice. It's for a general question.
PAGE 52
If we then use our own passwords for
that, in a way we are circumventing. Not letting
them do it, but to answer a reference question for
them. And we have done that on occasion, simply
because that's the only access that we have to some
of the material. Now we can't answer that French
legal question that they were going to ask, period.
MS. GOSLINS: If I could just follow-up
on that for a second. Is it really, then, that
you're -- when, in effect, you're doing there would
be circumventing the license terms, right? Not
necessarily the -- I mean, the access -- you're not
actually breaking the access control protections.
You're just circumventing the terms of the license?
MS. GASSAWAY: Yes. I mean, I guess it
depends on which way you look at it. Because of the
personal password situation, it's a little bit
different. Because ours apply to any machine, no IP
address. It's personal.
MS. PETERS: For certain use, right?
MS. GASSAWAY: Right. For educational
use.
PAGE 53
MS. PETERS: Right, yes.
MS. GASSAWAY: Not only educational use,
law school use.
MS. GOSLINS: And are there other --
okay, picking up on Ms. Coyle's point, which is
something we've heard in several of these hearings,
that circumventing access controls is expensive and
time-consuming and difficult. And generally you
need some design or some product or service that is
illegal to manufacture, design or produce them.
At the risk of being argumentative, why
is this exemption important, then? If these
technological protections are effective, if
realistically libraries wouldn't be able to
circumvent even if we were to exempt all classes of
works, what will a possible exemption give you?
MS. COYLE: Right. And the reason why I
see that as being an argument for the exemption is
the fact that should a library get in the position
where it does have to dedicate the $250,000 and a
year's worth of development in order to circumvent,
it's because it was an extremely important piece of
PAGE 54
knowledge that that library felt it was worth
investing the money to preserve.
It's not that you can't do it, it's that
it has to be -- you have to match the value of what
you are preserving with what it's going to cost you
to get to it to preserve it.
DR. VAIDHYANATHAN: And I would like the
Library of Congress to stand up for the principle.
MS. PETERS: For the --
DR. VAIDHYANATHAN: The principle of
preservation, the principle of first sale, the
principle of fair use.
MS. GOSLINS: Okay. This is another
sort of broad question. Obviously, one of the
things we're looking at is to what extent materials
are available in alternative formats, and to what
extent they're available only in digital formats.
So I'm just curious. I don't mean
specific numbers, but off the cuff, how much of the
material that you deal with in the operations of
your libraries is available only in digital form,
and how much of it is available elsewhere?
PAGE 55
MS. CROWE: In the public libraries,
often the databases that we buy are databases of
periodicals and that sort of thing that are --
they're also available in print. But we have to
make choices about which format we're going to buy,
because we can't afford to buy both formats.
So, it has become more and more popular
to buy them in electronic format because people can
access them from home, or from the office, or from
wherever is convenient. Therefore, although they
may be available in two formats, we have to choose.
And we're choosing the one that we think is more
convenient for people.
MS. GOSLINS: But, in general, the
formats -- you're choosing between two formats, and
in the day-to-day world it's also available in an
analog format?
MS. CROWE: Yes. Often. Not all the
time, but often.
MS. COYLE: Now, many of the e-journals
that we carry never were published in print, so we
do have many thousands of electronic journals that
PAGE 56
are available only in this format. And, as you
know, there's things like Highwire Press that in the
academic world, in academic production of knowledge,
that there is a consciousness of the need to both
provide these things electronically, and to preserve
them.
And what we're finding is that consortia
and library agreements are being developed so that
these things are being maintained for perpetual
access by some institution. Research Libraries
Group has taken on that for some materials.
This is definitely true for the archival
materials, because as people digitize archival
materials, even though the archival material is
still there, it has a very low possibility of use.
So when you have an archive of very rare
photographs, you cannot let people have access to
them. Therefore, the digital product really becomes
a functioning surrogate. And there is a great
consciousness of providing perpetual use to those
materials. However, oftentimes those materials are
materials that are owned by the library, and
PAGE 57
therefore there isn't a copyright issue.
MS. GASSAWAY: And we certainly have
some things in the big legal databases that are
available in print. But we're also getting many
more databases that do not exist in print, like
EDGAR, with all the SEC material. Some of that does
not exist in print. If you're in Washington and can
go by the Securities and Exchange Commission, you
can get hold of some of it. But some of it is just
simply not available to us.
The ERIC database is another one in
which there's a good bit of material that's
available only electronically.
MS. GOSLINS: What is the name? ERIC?
MS. GASSAWAY: The education. And until
Marybeth's colleague at the Patent and Trademark
Office got right about publishing patents, the only
access to them was through an electronic database.
But now they are available on the web.
The Bureau of National Affairs is
creating all kinds of libraries, as they're calling
them, of their materials. Like in Healthlaw, which
PAGE 58
will have a combination of materials that are
available in print, but a big chunk of their stuff
is not. And it is the bringing it together that is
making it valuable.
So I think we are on the upswing of
seeing things that are available only
electronically.
MS. GOSLINS: Okay. Can I ask you a
very specific question? Do you remember what
witness it was that said that archiving is
irrelevant to society?
MS. GASSAWAY: Yes. Richard Weisgrau of
ASMP.
MS. GOSLINS: All right. And I have
another specific question for you, Lolly. One of
your suggestions is that what you call fair use
works should be exempted from the anticircumvention
prohibition for, I believe, libraries and
universities, right? And in that group you include
textbooks and audio/visual and other educational
materials.
Does this create a similar problem that
PAGE 59
we saw in distance education, which is a proposal to
exempt works precisely in the markets for which
they're designed.
MS. GASSAWAY: Well, remember that that
applies only to works for which we already lawful
access. So if these are licensed work, we paid the
license fee. It's just they exempt them from the
anticircumvention provision.
MS. GOSLINS: And the initial access
point would be -- for instance, if you -- as an
example of that, if you purchased access to an
online database for six months, and then that six
months ended. You would then, from that point on,
be exempted from the prohibition of
anticircumvention because you had initial use?
MS. GASSAWAY: No. I think when you're
talking about a termed license period, it is only
for that period. I think it's only for that period.
I do not personally see how we could ever advocate
that -- you know, with a journal subscription now,
an analog subscription, when you stop the
subscription you don't continue getting the volumes.
PAGE 60
So, I mean, I think that the move to the
digital world is the same thing with those. If you
paid for 12 months of access, that's what you get.
MS. GOSLINS: So how would it work, that
if you had initial lawful access and it's an
audio/visual work produced for education purposes.
You would then need to circumvent the access control
protections?
MS. GASSAWAY: It's not that whether we
would need to, it's whether we would be liable if we
did do it. That's really the issue. We don't know
whether we would need to. Suppose that it's one of
these timed ones that disappears? You know,
something like that. And yet it's still within our
contract period of having paid for. Why should we
be liable for circumventing if we've already had
lawful initial access and the contract period has
not expired?
MS. GOSLINS: I'm sorry that I'm
following up on this. I think I'm just still
slightly confused. I understand that example. That
seems like that example would, however, apply only
PAGE 61
in situations where somebody made a mistake and you
weren't having access to something that you were
entitled to. That seems like a pretty narrow
exemption.
MS. GASSAWAY: Well, all I can tell you
is from my own experience as a law librarian, and
that's the only one I personally dealt with so far.
So I don't know how rare it is, because there were
a bunch of us who had to deal with that.
MS. GOSLINS: Okay. And then I just
have one more question for Mr. Vaidhyanathan,
something like that. One of the things you
mentioned, or you suggested as a criterion for
exemption is technologies that didn't deny access
based on editorial concerns. I'm just curious. Are
there technologies now that do that, and are capable
of doing that?
DR. VAIDHYANATHAN: So far -- I'm sure
they're all capable of doing that. When I get into
NYTimes.com, I have to enter my e-mail address and a
password. So far I have done nothing to justify
NYTimes.com from keeping me out, but there's nothing
PAGE 62
to prevent them from keeping me out.
Now, it's a --
MS. GOSLINS: Okay, it's sort of an FBI
Top Ten Wanted list?
DR. VAIDHYANATHAN: Or, yes. Whatever.
It's not inconceivable to think that certain sites
or databases would be willing and able to exercise
editorial control over access. You know, it would
be a very simple way of regulating readership.
MS. GOSLINS: But you're not aware of
anybody that does that now?
DR. VAIDHYANATHAN: No, I'm not.
MS. GOSLINS: Okay. All right. I think
I'm done.
MS. PETERS: Charlotte?
MS. DOUGLASS: You said in pursuing a
little bit of that adverse effects, and the
difference between an adverse effect and a mere
inconvenience -- well, if you can't get material at
all but for circumvention, that's one thing. But
suppose you have the ability instead of
circumventing of digitally-encrypted work, to go to
PAGE 63
12 other sources and get access.
Would you think then that the
availability of the work in 12 other areas would
mean that that was an adverse effect, when you could
not get the digitally-encrypted version? Or would
the availability that took you 12 times as long mean
that that was a mere inconvenience?
I'm just trying to hone in on what's an
adverse effect and what's a mere inconvenience.
MS. COYLE: Yes, and I'm trying to
understand it. I'm not quite sure what it is. But
it sounds to me like what you're talking about is
something that comes up in the area of preservation
of hard copy works, which is that if your work is
deteriorating you don't immediately copy it. The
idea is that you're supposed to go out and try to
find out if you can reasonably get another copy.
And you seem to be saying that if for
some reason your digital access is broken, should
you be required to go out and try to find other
digital access before circumventing. Is that --
MS. DOUGLASS: No, I'm sorry I wasn't
PAGE 64
clear. I'm trying to distinguish between, on the
one hand, what is a real adverse effect and what is
a mere inconvenience. For the reason that Congress
tells us that we are to consider things that are
adverse effects in trying to establish these
particular classes of works that are to be exempted
for non-infringing use.
But Congress also tells us that we
should not pay as much attention to mere
inconveniences. And so I'm trying to decide whether
-- what are they talking about?
MS. COYLE: You're still trying to
define inconvenience, yes.
MS. DOUGLASS: What is an example of
that? And so I came up with an example that,
suppose you had a digitally-encrypted work but you
can actually get the same material by going to 12
other places, taking 12 times a long. Does that
mean that it's -- that the fact that you can go and
take 12 times as long, that's a mere inconvenience
or is it an adverse effect?
MS. COYLE: I think it's very hard to
PAGE 65
sort of answer that question in the abstract,
because it depends on whether or not that user is
actually going to continue to follow-up 12 times as
long. Or if that 12 times as long is 12 days rather
than 12 seconds, which there's a big difference in
time.
And so there has to be some kind of
concept of what it's reasonable to expect users to
go through, or for libraries to go through.
DR. VAIDHYANATHAN: And Ms. Douglass, I
have actually three observations about that subject.
First of all, if there were a condition, for
instance, that the researcher were on a heavy
deadline, then -- and an article is not going to get
published if he or she can't get that information
within 28 or 48 hours, that's a real effect.
Secondly, another real effect might be
if the user is for instance, visually disabled and
has software available to create an audio
presentation of a digital work and is basically
unable to read or understand printed text, then
that's a case of real harm.
PAGE 66
Third, I think it's very important to
recognize that in the realm of First Amendment law a
chilling effect is a real effect. And it wouldn't
be very hard to be able to come up with examples of
a chilling effect.
And then, for instance, just off the top
of my head before I read this, when the anti-DSS
cases hit the press, sites that had DCSS software on
them shut themselves down before it was ever
litigated. In other words, they were protecting
themselves. That is a real chilling effect.
MS. DOUGLASS: Thank you.
MS. GASSAWAY: I think also that there
are works that are available only electronically.
So, clearly the adverse impact or adverse effect is
there for those works. Your example of there are 12
other sources available says that going through the
decryption or whatever, would not be very time or
cost-effective, except in the instances that Siva
just mentioned to you, or something like that.
But we do have to focus on the fact that
increasingly there are works that are going to be
PAGE 67
available only digitally. And on those the adverse
effect is clear.
MS. DOUGLASS: One of the questions that
we asked in our Initial Notice was, speaking still
of adverse effect, with respect to any adverse
effect is there an explanation for the adverse
effect other than the presence of technological
measures that effectively control access to works.
That means that but for the presence of
circumvention, is there -- was that adverse effect
caused, or could it be something else? Could it be
because of the licensing restrictions, could it be
for -- I know this is highly abstract and I'm sorry
I can't give you a hard example of it. But we have
to somehow try to link cause and effect here because
that's what Congress said to do.
So I want to know if there is, or if
there could be other reasons for the adverse effect
except for the prohibition on circumvention? Does
that make sense?
MS. GASSAWAY: I think it does make
sense. I think, at least from my standpoint, the
PAGE 68
concern that we're going to see some of the license
restrictions on use converted to TPMs is really
where we focus. And where we really have to think
about, sure, some of the concerns today are just
pure licensing concerns.
But if you can turn that contract into a
technological protection that also protects not only
access, but use, you know, then it's too late.
We've already lost the access to the work unless
that we have the broad exemption from circumvention.
MS. DOUGLASS: And your broad exemption
goes to fair use works and thin copyright works?
MS. GASSAWAY: Well, first we would
prefer that it be any work for which we have initial
--
MS. DOUGLASS: Lawful.
MS. GASSAWAY: Lawful use, right. And
then in the alternative, if that is broader than
rulemaking can encompass, we'd say that there are
these classes of works that are specifically unique
to higher ed. But we would also hope that there was
a rule that said for particular circumstances there
PAGE 69
would be the ability to bring other categories into
that. And I use as the example films in a
filmmaking school, or something like that, which are
not in those two categories necessarily.
MS. DOUGLASS: Now, I'm trying to
recollect. You said that classes of works is not
necessarily categories of works.
MS. GASSAWAY: I didn't say that.
MS. DOUGLASS: Oh, you said that. Okay,
I'm sorry. So this may be an unfair question, but
can you figure out how to get to classes of works
that are not categories of works according to the
legislative history?
DR. VAIDHYANATHAN: Well, let's see. I
think you're empowered to read the word "categories"
as distinct from "classes." And I think that you're
empowered to do that because they are two distinct
words and two distinct areas of the code. If they
had meant -- if the Commerce Committee had meant
categories, it could and probably would have said
categories.
What is a class of work? Well, you can
PAGE 70
define a class of work functionally, and I think
that may be the only reasonable way to do it. A
class of work is a work that is available in certain
ways and used in certain ways. And then it's up to
you to fill in the blanks what those ways are.
MS. DOUGLASS: Do you have any comment
on this, Dr. Gassaway?
MS. GASSAWAY: I'm pretty sure it's not
categories of works, because that's how I first read
it when the legislation was being drafted and trying
to figure it out. I think we've done the best job
we can with looking at those fair use works and
factual works. Suppose it could also be defined by
length of term?
You know, we could say that after the
first so many years the work is no longer something
that we need to worry about that for. I don't think
that will be very popular with copyright holders,
but you know, you're looking at different ways we
could cut across what's a class of work.
Old stuff. That's a class. Bad stuff.
MS. DOUGLASS: Old stuff is a class
PAGE 71
particularly if the copyright term has already
expired.
MS. GASSAWAY: Oh, then it's public
domain. I'm talking about old stuff that's still
under copyright.
DR. VAIDHYANATHAN: But to articulate
clearly that items in the public domain should not
be covered by the anticircumvention prohibition
because they're not covered under Section 107.
MS. GOSLINS: I think that's pretty
clear from the legislation.
DR. VAIDHYANATHAN: Well, okay. We'll
see if it's clear in practice.
MS. DOUGLASS: What's not so clear,
maybe, is public domain material that is covered by
what some consider to be a thin veneer of
copyrightable works. For example, an introduction,
an index, a table, with all of these public domain
facts from the SEC. And you happen to be in Denver,
Colorado.
So, are you advocating any particular
exemption with respect, possibly, to that kind of
PAGE 72
material?
DR. VAIDHYANATHAN: The only way I could
envision that working -- I would love to see an
exemption for the public domain material. In other
words, no one should be able to prosecute me for
circumventing access to the complete works of Mark
Twain on a protected CD-ROM, for instance.
I would like that. However, I recognize
that the complete works of Mark Twain are available
in several other forms, not enclosed, not protected.
So you may find too broad a definition on work
along -- or work against the principle of the
legislation in front of you.
MS. GASSAWAY: Also talking about works
abandoned in the commercial market, which are fixed
and obsolete technology. It's another class of
works that we could look at.
MS. DOUGLASS: Thank you.
Ms. Coyle, the summary of your statement
refers to reformatting material, and the need for
circumvention in connection with preserving material
for archival purposes. Have you ever needed to
PAGE 73
reformat audio/visual works or the like for storage
reasons?
For example, DAT or DVD format, to avoid
maintaining items on more space-consuming media? Am
I making myself clear?
MS. COYLE: Yes. We do make copies of
everything that we receive, and this is part of our
licensing. And we do copy -- I mean, we have data
going back to 1978, so I've had the privilege of
going through system upgrades and having to recopy
hundreds of thousands of files. So, yes, this is
something that occurs actually quite regularly.
MS. DOUGLASS: And you do it now as a
matter of a license?
MS. COYLE: Right, right.
MS. PETERS: Is that something that you
require in all of your licenses, or manage to get in
all of your licenses?
MS. COYLE: You don't manage to get it
from all of them, no.
MS. PETERS: Okay. What do you do when
you don't get it?
PAGE 74
MS. COYLE: I talk to the people who do
licensing, because I don't do that directly. You
know, I do the bits and bytes, other people do
licensing. But I figured this question would be
asked.
What happens at that point is it seems
that we go into prolonged negotiations with the
vendor. And we have had contract negotiations last
18 to 24 months until we reach an agreement.
MS. PETERS: But you keep going for an
agreement. Maybe I should ask, what do you do with
your archived material? Does that become the base
from which you serve, or is it more like a doomsday
kind of --
MS. COYLE: Yes. Actually, most of the
material that we've archived is bibliographic
records. And those at least were -- now they're
stored in Oakland and San Francisco. There was a
time when some of them were stored in Nevada as
well, so that when California slid into the ocean
our data would still be there. Fortunately, that
hasn't happened. But yes, things are stored with
PAGE 75
the idea that we think we have to keep it forever.
Now, I should mention about digital
preservation, because I think there's some
misunderstanding about that. Which is that digital
preservation -- with book preservation you wait 50
to 200 years, and as the book starts to deteriorate
then you preserve it.
With digital preservation you have --
preservation really begins on Day One. That
preservation is really a kind of preventive kind of
thing.
MS. DOUGLASS: So you would not
necessarily advocate having an anticircumvention
exemption, because you would take care of it up
front? MS. COYLE: Well, no. You
don't take care of it up front. The problem is that
-- I mean, if I get a CD-ROM and data is on CD-ROM,
that data is protected. I can make a copy of that
CD-ROM, the data is just as protected as it ever
was.
And, you know, I have no more access to that new CD-
ROM than I did into the old one.
PAGE 76
If I feel that that is data that I have
to -- and that I have a right to keep in perpetuity,
I am going to want it kept in a format that I know I
can get to in 10 years. And a copy of that CD-ROM
is not going to do that for me.
MS. PETERS: So, you put it what? What
kind of format would you put it on?
MS. COYLE: It isn't just -- I mean,
you're talking about the physical format?
MS. PETERS: I mean, obviously --
MS. COYLE: The physical format isn't
the question. The question is the data format.
MS. PETERS: Right. But what does that
become?
MS. COYLE: Depends on what kind of data
you have.
MS. PETERS: So what do you do for a CD-
ROM to preserve it?
MS. COYLE: Well, it's a -- see, it
isn't a question whether it's CD-ROM, it's what's on
it. So, for example, our standard for preserving
images is a certain level of TIF format. And if we
PAGE 77
have images that we've received -- and again, most
of the images that we receive are from our own
archives. So it isn't a question of having to
circumvent anything.
But we have images that we receive. We
put them into that format, because that's the format
we expect to be able to read in 20 to 30 years.
MS. DOUGLASS: I'm going out on a limb
here. Dr. Vaidhyanathan?
DR. VAIDHYANATHAN: That's good.
MS. DOUGLASS: All right. Your summary,
the first to a broader picture of information
comment, and a shrinking of the public domain. And
you say that it's going to affect decision-making
and creativity and humor. And from the lack of
humor here, that's a serious charge. So I'd like to
know if you can connect that really broad charge to
anything regarding circumvention.
DR. VAIDHYANATHAN: The connection would
be really clear under cases where copyright holders
exercised editorial control over access. The minute
that starts happening, then certain classes of
PAGE 78
people get access to certain works or information,
even data, if we're not careful how we write these
rules.
In which case, certain classes of people
would have much higher ability to manipulate public
discussion and debate. And perhaps people,
economically marginalized or socially marginalized,
would not have access to central texts, ideas and
tenets of our society that might be worthy of
satire.
And as a result -- I mean, in connection
to that, and I'm going to add this -- might as well
add it now, as long as there are no follow-up
questions about it, because I just learned about it.
Cyber Patrol, the filtering software, the filtering
service, apparently had been suppressing speech. It
prevents you from viewing certain places on the Web,
for instance.
Apparently the encryption of the block
list was broken. And as soon as activists
discovered that Cyber Patrol was blocking sites not
particularly defined by its policy, Cyber Patrol
PAGE 79
blocked those websites that carried the criticism of
the policy. Does that make sense?
MS. DOUGLASS: Yes, it does. I've heard
it before.
DR. VAIDHYANATHAN: Glad you did.
MS. DOUGLASS: And I suppose there's not
been any similar -- I guess we could call it adverse
effect. Or has there been any action taken? Have
you heard, for example, that there's some sort of a
parody of The Matrix on the Web?
DR. VAIDHYANATHAN: Of The Matrix I
haven't heard. But I have heard about a parody of
an Elian Gonzalez photo, for instance, that also
simultaneously parodied a major beer ad. And both -
- I guess people received cease and desist letters
as a result of this parodic manipulation.
That's not a control over -- it's not a
technological control over access to this stuff.
Nobody really has a problem with access to Budweiser
ads. If only we did. But it was a case where the
cultural power of the copyright system is used to
try to stifle parody and free expression.
PAGE 80
MS. DOUGLASS: Thank you for adding
humor to this testimony.
MS. PETERS: Thank you very much.
Rob?
MR. KASUNIC: Good afternoon. Going
back, there was a lot of broad concerns with the
things that are probably outside the scope of the
technological controls. And I think in some of the
comments, we've seen that there is a -- Ms. Coyle's
testimony that it's too early for any of us to make
any definite statements about some of this. And
also Dr. Vaidhyanathan, that the potential for abuse
is there.
And also admitting that the fears are
speculative and alarmist. That these are maybe
significant concerns, but it's not clear that we've
reached a certain point yet in the number of works.
In addition to -- Congress set up, in
addition to this triennial review that the Copyright
Office is empowered to do every three years, that
Congress also in the legislative history anticipated
that the market would be a factor in controlling
PAGE 81
this. That if controls got too tight, then the
market would compensate, and that there would be
effects on that side.
And in addition, the Copyright Office is
there to review this at another point in time, if
some of these situations do get worse. Is there any
evidence, in any of your views, that this is not
likely to be the case? That Congress was wrong,
that the market or that the pressure of knowing that
the Copyright Office would be reviewing this again
would not be enough to alleviate some of these
potential fears?
DR. VAIDHYANATHAN: The second concern
first. Yes, your triennial review is not likely to
have a direct effect on mitigating any of these
harms. For the simple fact that technologies and
devices will still be illegal. So once again, it's
the right without the ability.
Addressing your first concern, once
again a chilling effect is a real and tangible
factor in the way that the public and creators
interact with media companies and the copyright law
PAGE 82
system. And any gap in understanding of the nuances
of the Digital Millennium Copyright Act in general,
or the anticircumvention prohibitions specifically,
are not only likely to have a chilling effect, I'm
sure that's already happened.
If you don't realize what your specific
rights are, chances are you're not going to exercise
any of your given rights.
MR. KASUNIC: Did anybody else have --
yes?
MS. GASSAWAY: I should mention that we
have a little bit of concern about how the market
for education is being viewed, generally. And I'm
not talking about just for materials that are
designed specifically for that market.
But as copyright holders talk to you
all, everything they talked about market seemed to
be aimed at an individual. You know, how are we
going to deal with getting access to these works in
the educational context, if everything is set up so
it's an individual who gets access? As opposed to a
license that we're dealing with now.
PAGE 83
And the market simply has not worked
that well, when it comes even to licensing.
Especially some of these works for entertainment. I
mean, look at the evidence we saw when we were
talking about distance learning, about just being
denied even after the school had purchased the work,
denied the right to use it for distance learning.
I know we shouldn't talk about that it's
too expensive, but I'm not talking about that. But
quoted fees that mean you really don't use it. And
so I'm talking about exorbitant, not just a little
on the expensive side. But which is clearly a way
of controlling what's going on in education. And I
think that's one of the concerns I have.
It's really this whole First Amendment.
I mean, what are we going to be able to use for
teaching? Especially with things like cultural
studies. It's really a control on what is going to
be taught to your kids.
MR. KASUNIC: Well, then, I guess that
gets back to a comment that was raised before about
what is the purpose of the exemption in this, and
PAGE 84
how will this really help. Because if the market
has not been doing its job in maybe restrictive
licensing, that's -- this exemption isn't going to
change that. And it's also not going to
have an effect on the technology itself. The
technology can be as restrictive as anyone wants to
make it. All we can deal with in any potential
exemption is the prohibition on circumventing that
technology. So what will the effect of an exemption
be here?
MS. COYLE: I actually think that the
exemption will have an effect on the licensing and
contracting. Because I think that it gives a
message, and it gives a message that we expect
libraries to be providing information to the public,
and to be archiving the information. And I think
that it helps support what libraries are trying to
get into their licenses, which is the ability to do
just that.
MR. KASUNIC: Well, then, in terms of
the message that is to be sent -- and there does
seem to be an interest in the Copyright Office in
PAGE 85
sending some kind of message here. But under
certain restrictions on what kind of message we can
send. And we do have to identify classes of work.
In terms of how -- it was raised, going
back to the classes of works and the determination
of categories. Were given in the legislative
history something that did, to a certain extent, tie
this to the categories, where it was talked about
that, given examples, that this could something
narrower or should be something narrower than an
overall category of works, and not something like
audio/visual in general. But more narrow as in
motion pictures, but maybe not so narrow as in some
particular genre within there.
So how do we take this out of that area
of limiting it to one particular category, to a
broad -- to having a class of works which spans a
number of different categories? One where we do
have this legislative history that does seem to
narrow the scope a bit.
MS. GASSAWAY: We gave you a bunch of
examples in the testimony that I delivered, talking
PAGE 86
about factual works and fair use works. And named
within those specific types that appear in different
categories in Section 102(a).
MR. KASUNIC: Okay. With the thin
copyrights, and that was one of the areas you talked
about in the types of work, with factual works. And
this is something that was raised with a number of
the database owners and interests. That there is a
claim that this is something that's covered under
Title 17. That while there is a scope of
protection is arguable, that it may not be as
completely as broad, that this is under Title 17.
And that the technology is controlling a work that's
protected by Title 17. How can we work with that
restriction, that it is something that's covered.
If the technology is covering both copyrightable
elements and factual material, how -- and is not
differentiating between the two, is that something
that should be able to be protected under Section
1201?
MS. GASSAWAY: I think it's relatively
easy to do it. You simply would say that for
PAGE 87
educational, scholarly research purposes, even
though those works are protected under the Copyright
Act, and because we've had lawful initial use, then
they are exempted from anticircumvention for these
library, education, scholarly and research uses.
DR. VAIDHYANATHAN: And are you actually
talking about, for instance, databases with some
original arrangement and -- is that what your
question is about? So there's partial copyrighted
material on a particular database, but the data
itself -- which is not covered under the Copyright
Act -- but you're saying how can you help draw that
distinction, or what should you privilege?
MR. KASUNIC: Right. Well, if we have a
technological control measure -- that as long as
there is some element that would be copyrightable,
that that can be applied to the overall work. While
that may contain public domain elements, do we open
up the -- certain copyrightable elements? How does
an exemption differentiate between the two?
DR. VAIDHYANATHAN: You should err on
the side of public interest, you should err on the
PAGE 88
side of factual availability and the free flow of
information. You should, for instance, say that not
just teachers and scholars should have access to
non-copyrightable elements of a particular work, but
all potential users should have access to that
information. Especially if it's the only place one
can get it.
MR. KASUNIC: So that would be a
restriction, then, on it. That if you have a
database that's a sole source of that, and if this
was something that was available in some other form,
then that would not be -- that would not fall under
that exemption?
DR. VAIDHYANATHAN: Well, once again,
you have to take into account accessibility for all
users. Users in Alaska, users who are visually
impaired, all of whom should have an equal ability
to manipulate factual information.
MR. KASUNIC: Well, I guess, Ms. Coyle,
that that was something that -- raising about with
the sole source. And it's unclear that this has
increased the benefits to society, having some of
PAGE 89
these in a digital format as opposed to if it's
maybe available only in hard form. That having some
of these work available digitally has increased the
number of users and types of uses that are --
MS. COYLE: That simply changed the kind
of use, although this has just begun and we don't
really know exactly where that's going. But I think
we're seeing a change, actually, in the type of
scholarship that takes place because of a new kind
of availability of information, which was previously
available in a different form.
MR. KASUNIC: And are you aware of
anybody who has looked into doing some of -- you've
mentioned social impact studies. And I know there
was some interest in the Copyright Office doing
that. But is that something that is going to be
looked into by libraries and other areas, to
determine what some of these adverse effects are?
MS. COYLE: I don't know of anyone who's
really planning to do something that I would
consider to be a study of that type, no. It's going
to take effort, it's going to take people's time,
PAGE 90
it's going to take gathering together a group of
experts.
MS. GASSAWAY: I think I would worry a
little bit about -- talking about these databases
and things that are copyrighted. We're not arguing
about the copyright status of those works, but that
the veneer of copyright should not be used to
bootstrap circumvention prohibition for all non-
protected material. I mean, I think it's turned the
other way.
We're simply saying the whole point is
we've had initial lawful access, so perhaps we've
had a license, whatever. These are thin copyrighted
works because of the use that we are making of them
in education, research. Talking about students,
faculty, all the way up, libraries. That because of
all of that, there should be an exemption in this
anticircumvention for that class of works, those
that have thin copyrights to begin with.
DR. VAIDHYANATHAN: Access to a
copyrightable veneer of a database is not
infringement of a copyrightable veneer.
PAGE 91
MS. GASSAWAY: That's right.
DR. VAIDHYANATHAN: And it's really
important that we not conflate use and infringement.
Or somebody has to because Congress didn't.
MR. KASUNIC: Well, just to clarify one
point, in terms of -- when you said that the initial
lawful use, or initial lawful access to a work --
and that's something that had been raised in some of
the other testimony by Peter Jaszi and Arnie Lutzker
as well, about initial lawful access being a
criteria.
That access would then, I think in
Professor Jaszi's statement that that was lawfully
acquired work. So you're talking about this being
expanded to lawful access in terms of the licensing,
but being restricted to the terms of that license so
that not -- okay. Just wanted to clarify that.
Thank you.
MS. PETERS: Can I just follow on what
was Rob's question? Is your focus on initial access
against a pay-per-use model? So that you have to
somehow trigger a payment, or another dime, whatever
PAGE 92
it is, to get use -- to be able to look at it again?
MS. GASSAWAY: Not necessarily. It
could be that you took a blanket license of some
kind. It could be that you acquired it by gift.
You know, I mean, when we look at works, you might
have purchased it. If it's an outright purchase.
So it's sort of all of those ways one lawfully
acquires a work, whether possession or access to it.
MS. PETERS: Okay. Let's say that you
got it by gift. And it has, what, an access control
such as a password. So you don't have that
password, but because it came to you lawfully as a
gift, then you have the right to circumvent that
access control?
MS. GASSAWAY: Yes. Unless the license
to the person who acquired it initially required
that they not be able to give it away.
MS. PETERS: Right.
MS. GASSAWAY: If their license did not
prevent that, I guess we could look at software
under 109(b)(2)(A), whatever those long numbers are.
You know, the library and the education exemption
PAGE 93
to the computer software amendments.
Because we are allowed to give it away to another
educational institution.
So we give it to them, they don't have
the password. Yes, they should be able to
circumvent that. Because under the statute we're
allowed to give it away to them.
MS. PETERS: Take software as an
example.
MS. GASSAWAY: Okay.
MS. PETERS: Under software, you --
well, I won't say you. People, libraries have the
right to lend that software.
MS. GASSAWAY: Yes.
MS. PETERS: Is the software ever, like,
password-protected so that when the people get it
home, they have a problem using it?
MS. GASSAWAY: I'm probably not the best
one to ask about that, Marybeth. I'll bet some of
the people who are in other kinds of libraries -- in
law libraries we don't do much of that, loaning
software.
PAGE 94
MS. COYLE: Yes. It's not very -- so, I
don't know. I mean, I assume that if that's the
case, then you would, along with lending the
software, you would have to give them the access
password. Because otherwise they couldn't use it,
and why would you have lent it to them if they
couldn't use it?
MS. PETERS: Okay.
MS. GASSAWAY: So they could look at the
floppy.
MS. PETERS: Okay. David?
MR. CARSON: Well, following up on your
second to last question. Professor Gassaway, and
really everyone, are any of you aware of cases --
and I think I've heard one or two, but I just wanted
to get sort of a checklist in my own mind of cases
in which technological measures have restricted
access to works, beyond existing contractual
restrictions?
MS. GASSAWAY: The only personal
experience that I've had is the one of the
disappearing CD-ROM content. That's the only one I
PAGE 95
have personally seen to date.
MR. CARSON: Okay. That was the Lexis
French database?
MS. GASSAWAY: No, that was the Westlaw
CD-ROM.
MR. CARSON: And that one, I think you
said, was a mistake, right?
MS. GASSAWAY: It was a mistake, but
they said it was a mistake. But we don't know
whether it was.
MR. CARSON: Did they correct it?
MS. GASSAWAY: Yes, but it took them
seven weeks to correct it. So we were seven weeks -
-
MS. PETERS: You had no access for seven
weeks?
MS. GASSAWAY: We had no access for
seven weeks.
MR. CARSON: Okay. Anyone else aware of
any cases in which something -- technological
measures restricted access beyond terms that were in
a license that you had?
PAGE 96
DR. VAIDHYANATHAN: The Cyber Patrol
case would fall under that.
MR. CARSON: Okay. All right.
MS. COYLE: Well, I still think it's
interesting because you're assuming that the only
time that people can't get in is when the technology
deliberately is keeping them out. And I think we
can't assume perfect technology.
And I think that the example that Lolly
gave is a very good one of that. Technology fails.
It actually fails quite regularly, and so it fails
even though you may still be within your contract.
DR. VAIDHYANATHAN: A real fresh example
of that that just happened a couple of days ago.
There's a new subscription-only website for media
critics and scholars called "Inside.com." It's
planning to charge $20 per month for an access fee,
and therefore it's going to be password-protected.
For their start-up they sent out e-mails
to specific people on a specific list, saying "We're
going to give you a month of free access. Go to
this page and register with us, and we'll let you
PAGE 97
in." So I got the e-mail, I went to the page, I
registered, gave them all the information they
needed. And their link, their connect button was
not hot.
There was a glitch in the system, so I
didn't have access to their information, even though
I gave them everything they asked for in our
contractual deal.
MR. CARSON: Do you have any reason to
think that was anything other than a mistake on
their part?
DR. VAIDHYANATHAN: No, no. Whether it
was a mistake or not, their effect is the same.
MR. CARSON: Okay. Let's take that
further, though. Because what we're talking about
here is whether there should be classes of works
with respect to would you circumvent. And let's
assume we were to make a class of works as being
those works which, by mistake, access has been
denied you, even though you have a contractual right
to.
DR. VAIDHYANATHAN: Yes. That would be
PAGE 98
great.
MR. CARSON: I'm not sure that's an
appropriate class under the law, but let's just
assume that for a minute.
DR. VAIDHYANATHAN: Well, it might be an
essential class under the law. When I'm teaching
that class in 2035, and I plug in my access code and
the film doesn't come, it may not have come because
of some evil intent.
MR. CARSON: Oh, I understand.
DR. VAIDHYANATHAN: It may have not come
because of a mistake. And if I have a really
brilliant student who's willing to hack the system
right then and there to get me in, I shouldn't be
prosecuted for lawful access to that film.
MR. CARSON: Okay, you've actually
started to answer my question, anyway. Because the
question is -- well, first of all, let's have
another -- let's build another assumption in this.
Let's assume, because no one thus far has had a
contrary experience, that when that access has been
denied by mistake, the content provider, once being
PAGE 99
advised of that mistake, takes corrective action.
It may take him a little while, but they do take
corrective action. Let's assume good faith by the
content provider.
As a realistic matter, is the ability to
circumvent something that you could take advantage
of? I mean, is it something that, when you have
encryption or whatever that is preventing you from
getting in there, that you could virtually
instantaneously circumvent anyway, quicker than it
would take the content provider who's acting in good
faith to correct the problem?
DR. VAIDHYANATHAN: It's impossible to
predict. Because it's impossible to predict the
level of technological expertise among those who
seek access. And it's impossible to predict the
level of technological barrier set up by the content
provider. It's also impossible to predict the chain
of communication it would require through any
complex system, to correct the situation. And my
semester might be over before Casablanca plays.
MR. CARSON: Let's take the Westlaw
PAGE 100
example that we did have. Do you have any reason to
believe that you would have had means to circumvent
that in a timely way?
MS. GASSAWAY: No. The only way we
could have circumvented it is if another library had
the same title, and we just simply copied it.
Because there was nothing on the CD. We had just a
blank CD.
MR. CARSON: Okay. Let's take the Lexis
French database. That's something that I assume you
had online access to, and at some point it just
disappeared?
MS. GASSAWAY: That's right.
MR. CARSON: I'm not sure how relevant
it is, but do you know why it disappeared? Was
there any explanation?
MS. GASSAWAY: No, we don't.
MR. CARSON: Okay. Can you tell me how
a legal right to circumvent technological access
control measures would have prevented the problem
that you ultimately had?
MS. GASSAWAY: It wouldn't have, David.
PAGE 101
I was just, at that point, really talking about --
you asked for examples of what had happened so far.
That one was very fresh because of having happened
recently. Because there was no announcement, no
explanation why, just one day it's gone.
MR. CARSON: Okay. I'd like all of you
now to assume for a moment what may or may not be
the case. Which is that we decide that we are going
to exempt only those classes of works with respect
to which you can demonstrate that users have already
suffered serious adverse impacts on their ability to
engage in non-infringing uses. Are you with me so
far?
Okay. In that case, can you tell me
what those classes are, and what are the impacts
that have already occurred that you can identify,
that would justify selecting those classes?
I guess I'm asking you to tell me what
classes there are with respect to which there have
already been those serious adverse impacts.
MS. COYLE: What classes? Okay, ask me
that again. I'm lost. What classes?
PAGE 102
MR. CARSON: First of all, the premise
is that we will exempt only those classes of works
with respect to which users have already had serious
adverse impacts on their ability to make non-
infringing uses.
MS. COYLE: In other words, we've had an
experience with this in the past?
MR. CARSON: Absolutely.
MS. COYLE: Oh, okay. I had understood
your statement differently.
MR. CARSON: All right. If that's the
case, if the law says we can't exempt a class unless
we've already made that finding.
MS. COYLE: There's proof that
something's already gone wrong somewhere, yes.
MR. CARSON: Yes. Then can you tell me
what classes there with respect to which that
condition has been met?
DR. VAIDHYANATHAN: Yes. There are
people who can't play digital video disks because
they didn't buy, perhaps even couldn't buy a
particular brand of digital video disk player.
PAGE 103
Let's say, for instance, they have a computer with
Linux running on it, and they want to play their
lawfully acquired digital video disk. Then, yes,
that particular situation would come up.
MR. CARSON: We expect to have some long
conversations on that subject tomorrow. Anything
besides that? Okay. Professor Gassaway, the first
class of works that you asked us to examine -- and
correct me if I've got this wrong -- is works with
respect to the user has initially obtained lawful
possession, is that correct?
MS. GASSAWAY: It's lawful access.
MR. CARSON: Lawful access, okay. How
do you square that with the requirement that we
identify a particular class of works? Is that a
class of works within the statutory meaning?
MS. GASSAWAY: I think you have broad
discretionary power here to accomplish that however
you want. And if you want to define the class as
that to which the user had initial lawful access, I
think you can do that.
MR. CARSON: Well, you're a law
PAGE 104
professor. What do you find in the statutory
language or the legislative history that suggests we
have that much discretion?
MS. GASSAWAY: I don't find anything
that says you don't.
(Laughter.)
MR. CARSON: Fine. Let's move on to
your class of fair use works. I happen to be a
strong believer in fair use. And I guess my
question is, aren't all works fair use works? In
fact, my experience is that some of the most
interesting fair use cases, and the ones that I find
myself believing most strongly about are the cases
in which the work -- with respect to which fair use
is being made, are highly creative works.
MS. GASSAWAY: Right.
MR. CARSON: And if that's the case,
then are we exempting everything?
MS. GASSAWAY: Well, I think we started
out by saying, "Look, for all of higher education
there are two groups of works that we think all
disciplines use, and maybe have -- the equity's just
PAGE 105
even a little stronger than anything else." And
that was those fair use works and the thin
copyright.
But we did say, in addition, we thought
that you might think about writing a regulation that
would exempt a work not in those categories, these
creative kinds of works. Because of the surrounding
context, like use of motion pictures in a film
school. Where we wouldn't say those
are works that would automatically fall into that,
because of the context they well might. And that's
what I said, I think in higher ed we do not
differentiate between the types of works. You know,
we just don't. We consider an audio/visual work the
same thing that we consider a literary work. The
Copyright Act differentiates them, but teachers do
not.
DR. VAIDHYANATHAN: I also do think it's
important that we not be in a position to, for
instance, license teachers and professors to have
greater access to works than, for instance, my mom.
I mean, all users should have equal access to these
PAGE 106
works.
And therefore, actually coming up with a
notion of an actual -- I'm afraid it's a category
rather than a class -- fair use works might disrupt
that. That's why I'm not really on board with a
specific definition of a class of fair use works.
All works are potential fair use works.
MS. GASSAWAY: I don't agree with that.
I think that then doesn't that gut the whole
provision of the law? You're going to exempt
everything.
DR. VAIDHYANATHAN: Yes, that would be
great.
MS. GASSAWAY: And that's why I think we
said, you know, given our druthers, we would start
with this. But we also have to look at the fact
that classes of works did not mean the 102(a)
categories. What does it mean?
And there are different ways to cut it.
And we've mentioned date and some other things.
But the ones that really made the most sense might
be those fair use and thin copyright works if you
PAGE 107
cannot go as broad as looking at that initial lawful
use-- initial lawful access. I m sorry.
MR. CARSON: Okay. I'd like some help
with my legal analysis here, so I'm going to
primarily look to you, Professor Gassaway, on this
one.
MS. GASSAWAY: Hot seat.
MR. CARSON: This is a question of
interpretation of Section 1201.
MS. GASSAWAY: Oh, great.
MR. CARSON: When we -- let's assume
that we recommend that the Librarian exempt a
particular class of works, and let's assume that he
accepts that recommendation and exempts it. Is it
your understanding that if a particular class of
works is exempted, all users of that class of works
are entitled to circumvent technological measures
that control access? Or alternatively, only that
users who are engaging ultimately in non-infringing
uses are entitled to circumvent?
MS. GASSAWAY: Now, I'm not able to --
like I can in 108 and 107 and 110 -- spit out the
PAGE 108
sections without doing much looking. But I thought
that it said any class of works that are subject by
-- non-infringing uses by persons who are users of
the work are who are likely to be affected.
So I think you can cut it different
ways. It could be everyone, it could simply be
because of the public good of education and
libraries. It could be that way. I think you have
a lot of discretion there. Because I think it does
talk about particular persons and users.
MR. CARSON: Okay. Well, let's say we
decide that the databases are going to be exempt,
and that's all we do. Because let's assume for a
moment -- because I think this is probably the plain
reading of the statute -- that all the Librarian
does is say, "The following classes are classes I
designate as falling within those categories."
So the ultimate regulation just says we
find the following category, database. Would that
mean, in your view, that anyone can circumvent a
technological measure that controls access to that
database? Or would it mean, on the other hand, that
PAGE 109
only people who are engaging in non-infringing use
of that database can circumvent?
MS. GASSAWAY: I think the words of the
statute say that non-infringing uses by persons who
are users of a copyrighted work. So I'm reading
from the bible, and it says non-infringing uses. So
that's certainly my own interpretation, that it is -
-
MS. PETERS: They're in D.
MS. GASSAWAY: Pardon?
MS. PETERS: You're reading D, right?
MS. GASSAWAY: I'm reading D. And I
really -- now, this may just be my own foggy notion
of it, but all along I thought that not only could
you define classes, but classes for particular
users. That it did not necessarily have to be as
against the public, generally. That would be great.
But it could also be against particular classes of
users, from the way I've read this.
But Ms. Peters and I were both at a
conference where we heard a copyright law professor
say not only would it be nice if the statute could
PAGE 110
be read and understand by normal human beings, it
would be nice if it could be read and understand by
intellectual property professors, so--
DR. VAIDHYANATHAN: Getting back to that
example, I'm not sure how one could infringe upon a
database. I don't think we've come up with a set of
situations, unless you're actually talking about
infringing the copyrightable portion of that
database. MR. CARSON: Well, sure.
DR. VAIDHYANATHAN: So, yes. So
exempting databases would be an irrelevant exercise.
MR. CARSON: Well, I think the database
owners might disagree with you on that.
MS. GASSAWAY: Yes. I disagree with
that. I think that there certainly are portions of
databases that are copyrightable and therefore
subject to infringement. So that certainly could be
one.
I would be surprised if it would be
exempted as against all uses, because that would
also include competitors for the database, rather
than those users for what are traditionally fair use
PAGE 111
purposes.
MR. CARSON: Professor Gassaway, you
also said that some copyright owners have previously
testified in this proceeding that they intend to
merge access control measures and use control
measures. Did I get that right?
MS. GASSAWAY: Yes.
MR. CARSON: Okay. Just a suggestion.
It would be very helpful for us if either when you
correct your transcript or in post-hearing comments,
if you could identify those particular people and
where in their testimony we could find that, you'll
save us a little bit of work.
MS. GASSAWAY: We'll do that.
MR. CARSON: Okay.
MS. GASSAWAY: Naturally, they didn't
use exactly those words.
MR. CARSON: That's why it would help
for you to identify exactly what it was they said,
so we can come to our own judgment as well.
Ms. Coyle, you said you're not a lawyer
and therefore you can't --
PAGE 112
MS. COYLE: Definitely not.
MR. CARSON: Well, congratulations.
(Laughter.)
MS. COYLE: Thank you.
MR. CARSON: And that you can't describe
in legal terms what exemptions we can recommend, and
I can certainly understand that. But as someone
who's out there in the field, struggling with these
issues, can you tell us as a practical matter what
kinds of things should be exempted from this
anticircumvention provision?
Leave it to us to come up with the legal
language. You tell us the problem and what kinds of
works really are at risk here.
MS. COYLE: I think, as you've heard in
the other testimony, I can't think of a type of work
that isn't at risk. As long as it's digital and
it's protected, I believe it's at risk.
MR. CARSON: Okay. Professor
Vaidhyanathan, you said that one of the types of
works you'd like to see exempted would be works that
are not easily and widely available in unsecured
PAGE 113
formats. Can you give us concrete examples of what
kind of work you're talking about?
DR. VAIDHYANATHAN: Let's see. Well,
this is a skimpy concrete example. There are
certain articles that are available only on the New
York Times website, not available in the paper
product. If the New York Times website were
protected completely, which it basically is password
protection at this point. Then, yes, that material
would have to be exempted under my model. Exempted
from the anticircumvention provision.
MR. CARSON: Okay. You're giving me
what I think is really a hypothetical. Because you
started saying "if."
DR. VAIDHYANATHAN: Well, it is
protected by a technological gate right now. You
can't get into --
MR. CARSON: Which anyone can get into,
having done it myself a number of times.
DR. VAIDHYANATHAN: Well, you and I
aren't everyone. We don't know if everyone can, and
we don't know for how long, and we don't know under
PAGE 114
what conditions they still say yes or no. They've
only said yes, as far as your experience or my
experience indicates. But that doesn't mean they
can't or won't say no. And we haven't yet found the
person to whom they've said no.
However, that is a technological gate.
And circumventing it in order to get access to a
particular article that's not available in print
form should be exempted.
MS. PETERS: Okay. I did something
brilliant. I went and let my very able staff go
first, and I'm looking at all the questions that I
have. And actually I think almost all the questions
that I had, I've asked throughout or others have
basically answered them.
So, I think maybe for me I don't have
anything at this point. Does anyone else on the
panel have anything that they're dying to ask? No?
Okay.
Let me just make a note. In the
proceeding I noticed at least one person raising
their hand. And I didn't recognize that person
PAGE 115
because this is a formal hearing in which people had
to give notice, and they had adequate opportunity to
testify.
If there's anyone in the audience who
feels very strongly that they want to say something,
we do have another comment period. And you
certainly can file comments by June 23rd.
I certainly would like to thank the
witnesses. You've been extremely helpful, and we've
kept you quite a while. So thank you very much.
And for those -- I see some people who will testify
tomorrow. We hope to see you here. And anyone else
who wants to come. Thank you.
(Whereupon, at 4:18 p.m., the hearing
was adjourned, to be reconvened Friday, May 19,
2000, at 9:30 a.m.)