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1 LIBRARY OF CONGRESS
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5 UNITED STATES COPYRIGHT OFFICE
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9 HEARING ON EXEMPTION TO PROHIBITION ON
10 CIRCUMVENTION OF COPYRIGHT PROTECTION SYSTEMS
11 FOR ACCESS CONTROL TECHNOLOGIES
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15 DOCKET NO. RM 9907
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19 Tuesday, May 2, 2000
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23 The hearing in the above-entitled matter
24 was held in Room 202, Adams Building, Library of
25 Congress, 110 Second Street, S.E., Washington, D.C.,
26 at 10:00 a.m.
27
28 BEFORE:
29
30 MARYBETH PETERS, Register of Copyrights
31
32 DAVID CARSON, ESQ., General Counsel
33
34 RACHEL GOSLINS, ESQ, Attorney Advisor
35
36 CHARLOTTE DOUGLASS, ESQ., Principal Legal
37
38
39 ROBERT KASUNIC, ESQ., Senior Attorney Advisor
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1 I-N-D-E-X
2
3
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5 Panel I:
6
7 Peter Jaszi 8
8 Digital Future Coalition
9 Sarah Wiant 19
10 American Association of Law Libraries
11 Betty Landesman 30
12 D.C. Library Association
13
14
15
16
17
18 Panel II:
19
20 Christopher A. Mohr, Esquire 89
21 American Business Pres, et al.
22 David Mirchin 98
23 SilverPlatter
24 Joseph Montoro 110
25 Spectrum Software
26 Keith Kupferschmid 134
27 Software & Information Industry Assoc.
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1 P-R-O-C-E-E-D-I-N-G-S
2 10:10 a.m.
3 MS. PETERS: Good morning. My name is
4 Marybeth Peters. I am the Register of Copyrights,
5 which means Director of the United States Copyright
6 Office. I welcome you to the first of three days of
7 hearings here at the Library of Congress. Today,
8 tomorrow and Thursday we will hear testimony which
9 generally we'll begin at 10:00 in the morning and
10 generally will begin at 2:00 in the afternoon,
11 although I have a crisis this afternoon, so this
12 afternoon we're actually going to begin at 2:30.
13 Two weeks from Thursday we will hold
14 another day and a half of hearings at Stanford
15 University in Palo Alto. Those dates are May 18th
16 and 19th. A schedule for all five days of the
17 hearings is available today and is also available on
18 the Copyright Office web site.
19 As I think all of you who are here know,
20 these hearings are part of an ongoing rule making
21 process mandated by Congress under Section
22 1201(a)(1) of Title 17 of the United States Code.
23 Section 1201 was enacted in 1998 as part of a
24 Digital Millennium Copyright Act. It provides that
25 no person shall circumvent a technological measure
26 that effectively controls access to a copyrighted
PAGE 4
1
2 not go into effect until October 28, 2000, two years
3 after the date of enactment of the DMCA.
4 Section 1201(a)(1) provides that the
5 Librarian of Congress may exempt certain classes of
6 works from the prohibition against circumvention of
7 technological measures that control access to
8 copyrighted works through this rule making
9 procedures. The purpose of our proceeding is to
10 determine whether there are particular classes of
11 works as to which users are or likely to be
12 adversely effected in their ability to make non-
13 infringing uses. They are prohibited from
14 circumventing technological access control measures.
15 Pursuant to the Copyright Offices'
16 notice of inquiry published in the Federal Register
17 on November 24, 1999 the Office has receive 235
18 initial comments and 129 reply comments. All of
19 these are available on our web site for viewing and
20 for downloading.
21 After the hearings here and at Stanford
22 we will accept a final round of post-hearing
23 comments. These post-hearing comments are due
24 Friday, June 23rd. In order to allow interested
25 parties adequate time to respond the hearing
26 testimony the Copyright Office intends to post the
PAGE 5
1 transcripts of all of the hearings on our web site
2 as soon as they are available. We also intend to
3 record the testimony for streaming and/or
4 downloading from our web site and we expect that
5 those recordings will be available before the
6 transcript. The transcripts will be posted on the
7 web site as they are originally transcribed, but the
8 office will give persons testifying an opportunity
9 to correct any errors in the transcripts and when
10 those corrections are received we will put the
11 corrected transcripts on the web site.
12 Those of you who are here to testify
13 have already been advised what we intend to do.
14 And, by you appearance we understand that we have
15 your consent to do this. The comments, reply
16 comments, hearing testimony and post-hearing
17 comments will form the basis of evidence for my
18 recommendation to the Librarian of Congress.
19 Before making that recommendation I am
20 to consult with the Assistant Secretary for
21 Communications and Information of the Department of
22 Commerce's National Telecommunications and
23 Information Administration. We have already begun
24 those consultations and expect to have more
25 discussions with NTIA after the hearings.
26 After receiving my recommendation the
PAGE 6
1 Librarian will determine by the October 28th
2 deadline whether or not there are any classes of
3 works that shall be exempted from the prohibition
4 against circumvention of the access control measures
5 during the three years, beginning October 28, 2000
6 to October 28, 2003.
7 It is clear from the legislative history
8 that this proceeding is to focus on distinct,
9 verifiable and measurable impacts. Isolated or de
10 minimus effects, speculation or conjecture, and mere
11 inconvenience do not rise to the requisite level of
12 proof. Any recommendations for exemptions must be
13 based on specific impacts of particular classes of
14 works.
15 The panel will be asking some tough
16 questions of the participants in an effort to define
17 the issues. I stress that both sides will receive
18 difficult questions and none of the questions should
19 be seen as expressing a particular view by the
20 panel. It's merely a way to elicit more
21 information. This is an ongoing proceeding and no
22 decisions have been made yet as to any critical
23 issues in this rule making. The purpose of these
24 hearings is to further refine the issues and to get
25 as much evidence as possible from both sides.
26 In an effort to obtain all the relevant
PAGE 7
1 evidence the Copyright Office reserves the right to
2 ask questions in writing of any participant in these
3 proceedings after the close of the hearings. Any
4 such written questions that we ask and the answers
5 that we receive will be posted on our web site.
6 What I would now like to do is introduce
7 our panel. To my immediate left is Davis Carson,
8 the general counsel of the Copyright Office. To my
9 immediate right is Charlotte Douglass who is a
10 principal legal advisor to the general counsel. To
11 her right is Rob Kasunic, senior attorney in the
12 office of the general counsel. And, to my extreme
13 left is Rachel Goslins, attorney advisor in our
14 Office of Policy and International Affairs.
15 Having begun the hearing with my
16 introductory statement and our introduction of the
17 panel, let me now turn to our first panel of
18 witnesses and I'm very pleased that you are all in
19 place and we have Peter Jaszi, who is representing
20 the Digital Future Coalition. We have Sarah Wiant,
21 who is representing the American Association of Law
22 Libraries and from the D.C. Library Association we
23 have Betty Landesman.
24 I assume that you have worked out an
25 order amongst yourselves or if not, do you want to
26 go in the order that I --
PAGE 8
1 MR. JASZI: We'll go with the order --
2 MS. PETERS: With the order I announced.
3 Okay. Peter, it's yours. Thank you.
4 MR. JASZI: Thank you very much.
5 The Digital Future Coalition consists of
6 42 national organizations, including a wide range of
7 for profit and non-profit entities. Our members, a
8 list of whom is attached to my written testimony,
9 represent educators, computer and telecommunication
10 industry companies, librarians, artists, software
11 and hardware producers, and scientists, among
12 others.
13 Organized in the fall of 1995, the DFC
14 took an active part in the discussions that led up
15 to the conclusion of World Intellectual Property
16 Organization Treaties in December 1996, and to the
17 final passage of the Digital Millennium Copyright
18 Act implementing those treaties in October 1998.
19 I speak for the membership of DFC when I
20 say that throughout the process our paramount
21 concern was to assure that however the United States
22 Copyright Law might be modified to suit the
23 conditions of the new technological environment it
24 would maintain its traditional balance between
25 proprietors' control rights and consumers' use
26 privileges, including, but not limited to, so-called
PAGE 9
1 fair use. Thus, we were gratified when the WIPO
2 treaties, in language unprecedented in the annals of
3 international intellectual property law,
4 specifically recognized the need to maintain a
5 balance between the rights of authors and the larger
6 public interest, in addition to calling for party
7 states to provide protection for and, remedies
8 against the circumvention of, technological
9 protection measures.
10 At the same time we were concerned that
11 so-called anti-circumvention legislation had the
12 potential to disturb that balance significantly, as
13 least at where the law of the United States was
14 concerned. Section 1201(a)(1) of the DMCA, if
15 enforced as enacted, would do just that. As it
16 stands, Section 1201(a)(1), bolstered by the
17 provisions of succeeding sections provides content
18 owners with the legal infrastructure required to
19 implement a ubiquitous system of pay-per-use
20 electronic information commerce.
21 The basis for this statement is simple
22 and self-evident. Technologies now exist that
23 permit information proprietors to continue to
24 regulate access to digitized copies of content after
25 those copies have been lawfully acquired by others,
26 whether on pre-recorded media or via an Internet
PAGE 10
1 download. In today's technological environment the
2 fact that Section 1201(a)(1) prohibits circumvention
3 of technological measures controlling access to
4 information, rather than those protecting against
5 its unauthorized use is of little real significance
6 to consumers.
7 Indeed, in this proceeding the joint
8 reply comments of the American Film Marketing
9 Association and 16 other content industry
10 associations make it clear (at page 21) that their
11 business plans go beyond implementation of access
12 controls for initial binary permissions or denials
13 of access. In addition, they describe ``second
14 level'' access controls that allow, and I quote,
15 "management of who can have access, when, how much
16 and from where."
17 At the heart of this rule making is the
18 inquiry into whether users of copyrighted works are
19 likely to be adversely effected by the full
20 implementation of Section 1201(a)(1). Necessarily,
21 such an inquiry must be speculative since it entails
22 a prediction about the future. However, the stated
23 commitment of the content industries to the
24 technological implementation and legal defense of
25 second level access controls is the best available
26 evidence of the potential for adverse affectation.
PAGE 11
1 This is because if circumvention of
2 second level technological access controls were
3 prohibited, the use of such controls would enable
4 content owners to deny consumers the practical and
5 legal ability to make the various kinds of uses now
6 permitted under copyright law, including those
7 authorized under the fair use doctrine of Section
8 107 and the various exemptions provided in Section
9 110.
10 Indeed, the implications of full
11 enforcement of Section 1201(a)(1) are potentially
12 even more far reaching. Access controls could be
13 employed to prevent consumers from passively reading
14 or viewing the content of digital information
15 products they had purchased, unless, of course, they
16 were willing to pay again and again for the
17 privilege.
18 Lest these concerns seem farfetched, I
19 would point out that under current fair use
20 precedents a purchaser of digitized entertainment
21 context that has been packaged with technological
22 access controls are permitted to copy, read and
23 analyze the security software in order to achieve
24 inter-operability by means of their circumvention.
25 Notwithstanding this, in Universal Studios v.
26 Reimerdes the member companies of the Motion Picture
PAGE 12
1 Association currently are employing provisions of
2 Section 1201 not involved in this rule making to
3 frustrate what is asserted by the defendants to be
4 just such a privileged practice.
5 Whatever the merits of this particular
6 case, it raises a number of issues concerning the
7 interaction between Chapter 12 and traditional
8 copyright doctrine. Thus, for example, it has been
9 the plaintiffs' argument that because Section 1201
10 defines rights, wrongs and penalties that are
11 independent from those provided for in the copyright
12 law itself fair use is inapposite to the analysis of
13 their claims.
14 To date the judge has concurred. Of
15 course, because Section 1201(a)(1) is not in effect,
16 individual limits users who have employed the DeCSS
17 patch to play back DVDs on their computers have not
18 been sued in the Reimerdes case had the provision
19 been operative, there is no reason to believe that
20 they would have been omitted from the complaint.
21 Cases such as this one highlight the importance of
22 Section 1201(a)(1)(B) through (E), pursuant to which
23 this rule making is taking place.
24 While there are other provisions of
25 Chapter 12 intended to preserve aspects of the
26 traditional balance between owners and users of
PAGE 13
1 protected works, most are so drafted that they can
2 be read not to reach many real world situations that
3 are covered by the more flexible exceptions and
4 exemptions of copyright law. Thus, for example, in
5 the Reimerdes case Judge Lewis Kaplan has ruled that
6 the defendants' activities did not qualify under the
7 Section 1201(f)(2) exception related to reverse
8 engineering, because, among other things, the
9 entertainment software products contained in DVDs
10 are not ``computer programs.''
11 More generally, with respect to the
12 DMCA's specific exemptions as a whole, a recent NRC
13 study concluded that more legitimate reasons to
14 circumvent access control systems exist than are
15 currently recognized in the Digital Millennium
16 Copyright Act.
17 For example, a copyright owner might
18 need to circumvent an access control system to
19 investigate whether someone else is hiding
20 infringement by encrypting a copy of that owner's
21 works, or a firm might need to circumvent an access
22 control system to determine whether a software virus
23 was about to infect its computer system.
24 Now, by contrast with these specific
25 exemptions, Section 1201(c)(1) is generously
26 formulated: ``Nothing in this section shall effect
PAGE 14
1 rights, remedies, limitations or defenses to
2 copyright infringement, including fair use under
3 this title.'' Given its plain meaning, this
4 provision would require judges to interpret and
5 apply Section 1201(a)(1) so as to preserve fair use
6 and other traditional limits on copyright. In the
7 event of such an interpretation many of the concerns
8 just expressed about the specific exemptions would
9 become at least somewhat less urgent.
10 However, this does not appear to be the
11 interpretation of Section 1201(c)(1) preferred by
12 the content industries. Although courts ultimately
13 may recognize the importance and appropriateness of
14 preserving fair use and other traditional copyright
15 defenses pursuant to Section 1201(c)(1), this is not
16 a foregone conclusion, as David Nimmer has recently
17 pointed out.
18 At least until such time as this point
19 is clarified, the Librarian of Congress' rule making
20 function under the DMCA remains critical. Its
21 importance is reinforced by a consideration of the
22 legislative history of the relevant provisions.
23 Here, the House Commerce Committee's July 22nd
24 report is of particular significance, since it
25 accompanied the first version of the legislation to
26 contain in substance the provisions which ultimately
PAGE 15
1 became Section 1201(a)(1)(B) through (E).
2 In my written testimony I quote at
3 length from that report. I will do so only briefly
4 here. 0
5 example, that the principle of fair use involves a
6 balancing process ``whereby the exclusive interests
7 of copyright owners are balanced against the
8 competing needs of users....'' It dwells on the
9 importance of fair use to scholarship, education,
10 the interests of consumers and those of American
11 business, and it concludes for the passage in
12 question that the committee felt ``compelled to
13 address'' risks that new legislation posed to fair
14 use, including the ``risk that the enactment of the
15 bill could establish the legal framework that would
16 inexorably create a `pay-for-use' society.''
17 The report continued by stating that ``the committee
18 has struck a balance that is now embodied in Section
19 1201(a)(1) of the bill.'' As the passage makes
20 clear, it falls to this rule making to consider how
21 fair use in particular and the principle of balance
22 in the United States' copyright law in general, can
23 best be preserved in the near term.
24 If it is likely that implementation of
25 technological measures backed by legal sanctions
26 against circumvention will fundamentally alter and
PAGE 16
1 thus adversely effect the information consumer's
2 experience, and I believe it is, the remaining
3 challenge is how to craft meaningful exceptions that
4 are cast, as the statute specifies, in terms of
5 classes of works.
6 Some of the suggestions made by other
7 participants in the comment phase of the rule
8 making, for example, the American Association of
9 Universities' proposals to exempt ``thin copyright''
10 works have considerable merit. Standing alone,
11 however, these suggestions do not fully respond to
12 the most likely adverse effect on consumers'
13 welfare: Their loss of the ability to make free
14 choices about how, when and to what extent to use
15 copyrighted works embodied in lawfully acquired
16 copies (subject, of course, to the constraints
17 imposed by traditional copyright law itself).
18 And, that leads to the proposal with
19 which I would like to close my statement: a
20 proposal, which I should make clear, represents my
21 personal view and not necessarily that of all the
22 DFC's member organizations, although I think that
23 ultimately they will support it. It is that the
24 Librarian should exempt from the operation of
25 Section 1201(a)(1) works embodied in copies which
26 have been lawfully acquired by users who
PAGE 17
1 subsequently seek to make non-infringing uses
2 thereof.
3 The proposed language focuses on a class
4 of works that cuts across the various categories
5 defined in Section 102(a). Significantly, it would
6 exclude from its operation works the proprietors had
7 chosen to make available by means other than the
8 distribution of copies (as, for example, by
9 providing limited electronic access only). Indeed,
10 as electronic information commerce evolves the
11 proposed exemption might become less and less
12 significant in practice, just as new business models
13 might require other or additional exemptions in
14 future triennial rule makings.
15 For the moment, however, limited though
16 the proposed class is, its exemption would provide a
17 safeguard against the most imminent and easily
18 foreseeable harms to otherwise law abiding
19 information consumers that full implementation of
20 Section 1201(a)(1) otherwise is likely to generate.
21 At the same time, by emphasizing the purpose of the
22 intended use, the proposal would provide no safe
23 harbor to those who seek to override access controls
24 for illegitimate purposes, even if they are the
25 owners of the copies subject to such controls.
26 The proposal has one further advantage.
PAGE 18
1 Its adoption would bring the reach of Section
2 1201(a)(1) into conformity with what the legislative
3 history of the DMCA suggests was the original
4 understanding of its Congressional sponsors as to
5 the section's proper scope. The record reflects
6 that as conceived of by its proponents, the section
7 was intended to apply to the activities of
8 individuals who engaged in circumvention in order to
9 acquire unauthorized initial access to copyrighted
10 works, and not to fair and other non-infringing uses
11 made by those already in possession of copies.
12 Thus, for example, the House Manager's
13 report, at page 5, explains Section 1201(a)(1) by
14 stating that, and I quote, "the act of circumventing
15 a technological protection measure put in place by a
16 copyright owner to control access to a copyrighted
17 work is the electronic equivalent of breaking into a
18 lock room to steal a book." And, in a letter dated
19 June 16, 1998 the Judiciary Sub-Committee Chairman,
20 Representative Howard Coble, stated that the anti-
21 circumvention measures of H.R. 2281, as the
22 legislation then was denominated, were intended to
23 leave users, and I quote, "free to circumvent
24 technological protection measures to make fair use
25 copies."
26 This sensible vision of the Section
PAGE 19
1 1201(a)(1) prohibition now deserves attention and
2 respect. The future of fair use and other
3 traditional copyright defenses will be determined in
4 significant part by the outcome of the current rule
5 making. By adopting the proposed exemption, the
6 Librarian could take an important step towards
7 stabilizing the balance of copyright law in the new
8 electronic information environment. Thank you.
9 MS. PETERS: Thank you very much.
10 Sarah.
11 MS. WIANT: Good morning. My name is
12 Sarah Wiant. I'm the director of the Law Library
13 and a professor of law at Washington and Lee
14 University School of Law. Among the subjects that I
15 teach there include intellectual property and
16 copyrights.
17 I appreciate the opportunity to testify
18 this morning on Section 1201(a)(1), anti-
19 circumvention provisions of the DMCA. This is an
20 issue critical to the future of copyright law
21 because it determines whether public policy, such as
22 fair use and other exemptions, will survive in fact
23 in the digital world.
24 I am here today as a representative of
25 the American Association of Law Libraries and while
26 I'm primarily here on behalf of AALL, I also speak
PAGE 20
1 for libraries in general and in some sense, a very
2 real sense for the American public.
3 Law libraries serve their
4 constituencies, law students and faculty,
5 researchers, the general public, the legal
6 community, bench and bar, in our Nation's more than
7 1,900 law libraries. Our members are committed to
8 the principles of public access to government
9 information that are a fundamental requirement of
10 our democratic society. For most American citizens
11 their local law library is the only source of access
12 to comprehensive federal, state and local law and
13 law related materials. 0
14 important publications are becoming increasingly
15 available only in electronic formats.
16 My statement this morning is going to
17 focus on three areas. First, I will describe the
18 adverse effect of the new anti-circumvention
19 prohibitions on faculties, students and legal
20 researchers in their ability to make non-infringing
21 uses of works legitimately acquired by our
22 institutions.
23 Second, I will highlight the legal
24 community's concerns regarding limitations of access
25 or on access to federal government publications for
26 which no copyright protection is available.
PAGE 21
1 And, third, I would like to discuss our
2 concerns that as more and more information becomes
3 available only on-line, the ability of libraries to
4 provide permanent access to some publications and to
5 preserve and achieve them has been and will continue
6 to be adversely effected.
7 As to my first point, in the formal
8 comments provided by AALL and other major library
9 associations, we explained the unique role of our
10 Nation's libraries in serving the information needs
11 of the American public. Millions of users walk into
12 libraries each day looking for information across a
13 broad span of topics and academic disciplines.
14 Their needs are met through a variety of formats.
15 These may be print, it may be microfiche, it may be
16 video, sound recorders, computer discs, CDs, DDDs
17 and, yes indeed, the Internet.
18 Federal copyright law has for more than
19 200 years provided the historic balance between the
20 rights of copyright owners and users. We believe a
21 broad exemption from the 1201(a) restriction against
22 accessing and using copyrighted works protected by
23 technological measures, is essential to insure that
24 the public continues to enjoy uses of information
25 provided by libraries.
26 The anti-circumvention technologies now
PAGE 22
1 in place and those under development have a purpose
2 beyond that of controlling unlawful access. They
3 are a mechanism for controlling all uses of work.
4 For both libraries and our users, they will limit
5 use of legally acquired digital information by
6 effectively destroying the first sale doctrine.
7 They will prevent libraries from fulfilling their
8 mission to achieve and provide long term access to
9 information resources and they will impeded all
10 other non-infringing activities that advance the
11 fundamental public good purposes of the copyright
12 law.
13 From our joint library communities'
14 initial comments I would like to summary just a
15 couple of comments. The role of libraries is to
16 insure fair access and use to copyrighted works and
17 part of our responsibility is to bridge the digital
18 divide.
19 Every community in the nation is served
20 by libraries and these libraries spend billions of
21 dollars annually to provide their users with access
22 to electronic information. Many of the
23 technological measures will erase the distinction
24 between access and use, regulating the exploitation
25 of the work. Any rollback to preserving fair use in
26 the digital information environment will further
PAGE 23
1 increase the digital divide.
2 Fair use, the library achieves and
3 educational institution exemptions to the Copyright
4 Act are key to the ability of libraries to serve
5 social needs and public policy. Copyright law is
6 the very foundation by which libraries and
7 educational institutions provide the public with
8 products and services necessary to meet their
9 information needs.
10 The first sale doctrine allows libraries
11 to load information products they have purchased.
12 The fair use provisions allow users to exploit fully
13 their access to information resources for the
14 legitimate purposes of education, research,
15 criticism and other socially beneficial purposes.
16 Section 108 allows libraries to make single copies
17 of works in their collections available to patrons
18 engaged in private study, research and scholarship
19 and to achieve and preserve these works for long
20 term access. Section 110 includes provisions to
21 facilitate classroom and distant learning. And,
22 Section 121 contains limitations that insure the
23 reproduction and distribution of copyrighted
24 material for the use by the blind and disabled.
25 These principles must be preserved in
26 the digital environment just as they have applied
PAGE 24
1 historically to print resources. Any technological
2 measures limiting these principles will seriously
3 and irreparably harm the ability of libraries to
4 serve the public good.
5 Another point we made is that Section
6 1201 expands the boundaries of criminal laws in ways
7 that are vague and poorly defined and that cover
8 acts that are legal and acceptable behavior. Our
9 initial comments describe in greater detail the
10 language of 1201(a). It contains troubling
11 ambiguities in such key terms as technological
12 measures, circumvent, access and class of works.
13 There are few legal precedents
14 interpreting these terms to guide libraries and
15 their users in the application, nor is the
16 legislative record particularly helpful. Court
17 decisions may help clarify some meanings, but in the
18 meantime library users face criminal and civil
19 penalties for exploitations that have been
20 considered until now to be legal and non-infringing.
21 The threat of litigation will serve as the deterrent
22 from uses, some of which may be lawful, perhaps
23 maybe most which may be lawful.
24 As a practical matter most libraries
25 could not afford the high cost of litigation to
26 determine the definition of these terms. This
PAGE 25
1 uncertainty will have a chilling effect on users and
2 will inhibit legitimate non-infringing uses for
3 education, research, criticism and other public
4 information uses.
5 As to the second focus of my comments
6 this morning, I would like to now address the legal
7 community's concerns regarding limitations on access
8 to federal government publications for which no
9 copyright protection is available. As previously
10 noted, the purpose of technological measures is to
11 limit or control access and use of digital
12 information.
13 In the earlier comments, on March 20,
14 2000, in comments filed by Kent Smith, Deputy
15 Director of the National Library of Medicine, reply
16 comment 75, he notes circumstances in which works
17 by government scientists receive copyright
18 protection. Technological measures to control the
19 use of copyrighted works have also limited the
20 ability of this library, as well as all other
21 libraries, to achieve, preserve and provide
22 continuing access to some publications. This rule
23 making seeks to determine classes of works that
24 might be adversely effected by such technological
25 protections. Clearly all forms of scientific
26 technical information dissemination would be
PAGE 26
1 adversely effected.
2 Most blatant would be the limitation on
3 access to publications of government scientists for
4 which no copy right protection is available, but
5 which constantly appear within the copy premature
6 and under technological barriers of published works.
7 While these comments from the National
8 Library of Medicine define the problem only from the
9 perspective of government funded scientific and
10 medical research, the identical situation exists
11 with many other subject areas of government
12 information, particularly, legal information, which
13 is aggregated into large electronic databases.
14 Law libraries are in the unique role of
15 serving the American public by providing access to
16 print and electronic law and law related resources.
17 More and more government information is being
18 published only electronically under licenses that
19 restrict access and use. The technological measures
20 which may be as simple as a password place
21 restrictions on who can use the digital information
22 and often disenfranchise the public. Whereas the
23 public may use the same print resource in a law
24 library, in the digital arena law libraries are no
25 longer able to provide equal access to all users.
26 While many students and colleges and
PAGE 27
1 universities and their libraries and other
2 institutions do have access to legal and other
3 information through consortia agreements or other
4 forms of licensing agreements to online information,
5 other students and members of the bar and equally
6 important members of the public who are served by
7 these institutions are able to neither access nor
8 use information in online systems such as West Law
9 and Lexis due to licensing arrangements.
10 In the paper world these individuals
11 would be permitted to make their use copy of
12 information. Most state college and university
13 libraries and many non-profit organizations has as a
14 part of their mission the obligation to provide
15 members of the public with access to information and
16 to make available the information for the public's
17 use.
18 There is no distinction among the
19 classes of works needed by users, only the use to
20 which the information is put can be distinguished.
21 That is to say the uses may be educational, personal
22 or commercial purposes. There must be no
23 restrictions on the uses of federal government
24 information because it falls outside of copyright
25 protection.
26 Finally, we are concerned that as more
PAGE 28
1 and more information becomes available only online
2 the ability of law libraries to provide permanent
3 access to some publications and to preserve and
4 achieve them will be adversely effected. A
5 preponderance of comments from users' communities in
6 the initial rule making including those from the
7 National Library of Medicine and the National
8 Achieves raise very legitimate concerns about the
9 loss of digital information and the need to provide
10 permanent access and to achieve and preserve
11 electronic information.
12 The anti-circumvention systems create
13 another injustice by denying libraries access to
14 works which they previously and lawfully acquired.
15 In the print world the issues of archiving and
16 preservation are much clearer. Libraries have the
17 historic and important role of preserving and
18 archiving knowledge and our cultural heritage. It
19 is critically important that the electronic
20 information produced today will be readily available
21 to future generations.
22 Of particular concern to the law library
23 community is the loss of important information
24 content when the publisher of an online resource
25 either ceases publication or goes out of business
26 with no advance warning, such as legalline.com or
PAGE 29
1 instances when CD products protected by
2 technological measures can no longer be reformatted
3 and, therefore, are unreadable.
4 Technical obsolescence is an equally
5 important aspect of the problem. When an
6 educational institution or achieve for library buys
7 a subscription or has print copy of the book, the
8 library can make a copy. However, if the
9 technological measures prohibitive producing a work
10 in the electronic world, then no archival copy may
11 exist. Although publishers should achieve their
12 works, and in fact some do, more often than not
13 publishers fail to achieve their works. Moreover,
14 when publishers are the sole source for archival
15 copies of their works, replacing the political,
16 social and cultural mission of many libraries and
17 achieves, there is a greater risk of selective
18 archiving.
19 The judgment of what to preserve and
20 whether or not to preserve should not be solely in
21 the hands of publishers. Unlike in the print world,
22 because there may be no secondary market for
23 electronic works, libraries and educational
24 institutions may be unable to acquire works that
25 they were initially able to acquire, furthermore
26 exacerbating he problem of preservation.
PAGE 30
1 During the lengthy debate over the most
2 contentious provisions of the Digital Millennium
3 Copyright Act. Distinctions were blurred between
4 the act of circumvention and the act of digital
5 piracy. They are not the same.
6 The need to circumvent technological
7 measures for legitimate purposes of fair use, first
8 sale, inter-library loan, permitted access,
9 archiving and preservation are needed to permit
10 libraries to serve their users in the digital world.
11 Libraries adhere strongly to the limitation of
12 copyright law while providing their users with
13 access to information within the rights allowed
14 users under the law.
15 We believe that it is essential for the
16 librarian to create a meaningful exemption before
17 Section 1201 does irreversible harm to the rights of
18 users allowed under the statute based on public
19 policy.
20 Thank you for allowing me to testify
21 this morning.
22 MS. PETERS: Thank you. Betty.
23 MS. LANDESMAN: I'm afraid I'm real new
24 at this. Like my colleagues I do have written
25 testimony. Would you like it?
26 MS. PETERS: Certainly. Yes.
PAGE 31
1 MS. LANDESMAN: Good morning. My name
2 is Betty Landesman and I am a librarian with the
3 Research Information Center, which is what we call
4 our library, of the AARP, which was formerly known
5 as the American Association of Retired Persons.
6 It's now just the AARP for official records, by the
7 way.
8 MS. PETERS: That makes me happy since
9 I'm a member.
10 MS. LANDESMAN: The membership age is
11 now 50 and there are not a lot of retired 50 year
12 old people.
13 Prior to taking this position, which
14 will be a year ago tomorrow, happy anniversary to
15 me, it's a brand new job, I worked at a number of
16 college, university and research libraries, as well
17 as for a vendor of computer systems for libraries.
18 So, you may think I'm here today because I've been
19 around, which I have, but in fact I am wearing the
20 hat today of president of the District of Columbia
21 Library Association. DCLA is one of the chapters of
22 the American Library Association. They like to call
23 us a state chapter, but, okay. And, we have members
24 from all of the many diverse types of libraries in
25 the District, including public, school, academic,
26 medical, law, special and government libraries.
PAGE 32
1 I want to talk today not about the legal
2 aspects of the new provisions of the Copyright Act,
3 for which fortunately I can rely on my colleagues,
4 but about the practical effects of the new Section
5 1201(a) and the need for a broad exemption that
6 takes those practical effects on libraries into
7 account.
8 Without an exemption by the Librarian
9 from the anti-circumvention prohibition, libraries
10 will not be able to carry out their primary mission,
11 which is providing access to information resources
12 for the communities of patrons that they serve.
13 At all of the institutions that DCLA
14 represents, as is true all over the country,
15 electronic services have become an integral part of
16 the services that we provide. As you are already
17 aware from the comments provided during the rule
18 making process, electronic information is invaluable
19 to all kinds of research from the youngest school
20 child to the most in depth medical and legal
21 research. But, much of the material that is
22 necessary to support the information, education and
23 research goals of our library users is increasingly
24 available only in electronic form or where
25 electronic versions of a print counterpart provide
26 additional and valuable research tools that are
PAGE 33
1 simply not available in the print. My written
2 testimony gives some examples of specific titles.
3 All libraries, whether directly or
4 indirectly, serve the public. I work in a library
5 that is part of a non-profit organization and my
6 clientele are the staff of the association. We
7 support the research on aging that is done by those
8 staff members. That research is then made available
9 to the public through published studies which are
10 available free of charge and also through a database
11 called Age Line, which we produce.
12 Library materials are available to any
13 patrons outside of our association through inter-
14 library loan in which we participate very actively.
15 And, our library itself is accessible to researchers
16 who need to use our collections or our research
17 expertise. For many people in the communities we
18 serve, particularly the poor, the elderly and school
19 age children, the public library serves as the
20 primary access point for information, both printed
21 and electronic that they need.
22 In the non-public environment the
23 library, like mine for example, is accountable to
24 the members of its organization, whether that be
25 students, faculty, or staff for the support of their
26 education and research needs. My written testimony
PAGE 34
1 has some statistics on the number of libraries and
2 so forth. So, our concern about the technological
3 protection measures and their potential restrictions
4 on use is the threat that they pose our library's
5 ability to serve our users in the way that we have
6 always done.
7 We note that some content providers
8 during their comments have suggested that librarians
9 want information for free. That couldn't be further
10 from the case. We spend an enormous amount of
11 money, according to my colleague, millions.
12 According to my date, hundred of millions. A lot of
13 money in fees every year to provide access to
14 databases and electronic materials and services.
15 In my library, for example, last year
16 the amount, the number of dollars which I will not
17 disclose, but the number of dollars that was
18 budgeted for electronic services was more than
19 double the number of dollars budgeted for print
20 materials. And, I fully expect that this proportion
21 will continue to grow.
22 My concerns are in three main areas
23 which in many ways will echo my colleagues: cost,
24 inter-library lending and access to information.
25 First, we expect that technological
26 measures will be used in ways that increase the
PAGE 35
1 overall cost of the information that we already
2 purchased. As the library associations pointed out
3 in their comments, we are very concerned that the
4 effect of these technological measures will be to
5 move us toward a pay-for-use pricing model, as well
6 as the charge for uses that are legitimate and non-
7 infringing under copyright law. That would put
8 additional pressure that I don't think we can bear
9 on already strained acquisitions, budgets and reduce
10 the level of services that we can provide.
11 Secondly, the first sale and fair use
12 provisions of the Copyright Act provide libraries
13 with the ability to lend the information products
14 that they purchase and to make copies available of
15 these works to patrons engaged in research and
16 scholarship. In addition to supporting the
17 information needs of their own users, libraries
18 share their resources by participating in inter-
19 library loan. Since no library is able to own all
20 the materials that are needed to support the
21 information needs of their users, certainly not
22 mine, it is only by cooperating and helping each
23 other that we have been able to provide the
24 information that our patrons need.
25 Persistent access control, such as
26 electronic books with limits imposed on
PAGE 36
1 redistribution, would undermine the basic concept of
2 the library as an institution that lends information
3 resources to users.
4 Finally, I'm concerned that these
5 protection schemes will seriously reduce our library
6 users' ability to make full and non-infringing use
7 of the material that we already purchase,
8 legitimately acquire. The restricts that we already
9 see in electronic resources, licensing arrangements,
10 include limiting access to a particular resource to
11 one computer in the library, to restricting use to a
12 specific number of simultaneous or even consecutive
13 users and precluding access to material after a
14 certain period of time. And, as noted above, the
15 harm these restrictions pose to our communities will
16 fall particularly heavily on those who have no
17 alternative sources for access.
18 A related aspect of this concern is that
19 technological measures will hamper or negate the
20 ability of libraries to achieve and preserve
21 information products so that they will continue to
22 be available to our users in the future.
23 Researchers of all types need to be able to depend
24 on having access to materials that may not be this
25 years. They may be a few years older and yet these
26 products or access to them may disappear at some
PAGE 37
1 future time, either because they are no longer
2 available from that particular vendor or that vendor
3 has gone out of business or they are simply taken
4 out of the date base and the library is not able to
5 make an archival copy, or because the library no
6 longer subscribes to the product, but is barred
7 access to the information that they did subscribe to
8 in the past.
9 So, as I ask that as you consider the
10 breadth and focus of an exemption for Section
11 1201(a) you will keep in mind the importance of
12 libraries in serving all aspects of our society.
13 Since all types of materials are used in research,
14 not only books and journals, but photographs, motion
15 pictures, sound recordings, you need it, it would be
16 impossible to identify specific classes of works
17 that should be exempted. So, I encourage a broad
18 exemption.
19 Technological measures that control both
20 initial access to a product and also its continued
21 use prevent libraries from providing necessary and
22 non-infringing information to our users. So, please
23 make sure we can continue to do our job. Thank you.
24 MS. PETERS: Thank you. Now the panel
25 gets to ask the questions and we're actually going
26 to start with Rob and the questions could be
PAGE 38
1 directed to a particular person or to the panel as a
2 whole. Even if it is directed to a particular
3 person, if one of the three of you wants to say, you
4 know, I want to answer that, too, please feel free
5 to jump in.
6 Let's start with you, Rob.
7 MR. KASUNIC: A number of you have
8 discussed a broad exemption cutting across the
9 categories and over a number of potential classes of
10 works. What would be the basis for that in the
11 statute and in the legislative history? We do have a
12 legislative history that specifies some pretty
13 narrow interpretations of what a class of work would
14 be: something narrower than a category of work, but
15 not so narrow as an individual type of work as in
16 western movies or something that narrow. How do we
17 deal with this broader exemption that cuts across
18 various categories?
19 MR. JASZI: If I could start, I think
20 the problem is a real one, although I might quarrel
21 a little bit with the suggestion that some of the
22 exemptions that have been explicitly or implicitly
23 suggested in the last few minutes are ``broad''
24 exemptions as distinct from exemptions which are
25 oriented at least in part toward the nature of use,
26 rather than exclusively toward the nature of the
PAGE 39
1 work as such. And the suggestion that it might be
2 possible to cast a definition of a class of works in
3 terms of the nature of use was, of course, one that
4 was raised by your initial notice of inquiry in this
5 rule making.
6 As I read the legislative history it
7 calls for the class of works defined in this rule
8 making to be one that is focused, and cites as
9 examples of the way in which such a focus might be
10 achieved, the subdivision (if you will) of existing
11 categories: audio visual works broken down to
12 western movies example. I do not read the
13 legislative history as excluding the possibility of
14 the Librarian, in his discretion and taking into
15 account all of the material adduced in the rule
16 making hearings, conceiving of other classes of
17 works which have in other ways their own specific
18 focuses.
19 So, that would be my initial response
20 and I would add another response, too. To some
21 extent, given the nature of the problems that
22 Section 1201(a)(1) potentially gives rise to, as
23 they have been revealed in the record so far, any
24 approach to the rule making that is strictly limited
25 to sub-divisions of existing statutory categories of
26 works will almost certainly fail to meet the real
PAGE 40
1 issues.
2 MS. WIANT: Can I just add? I would add
3 to what Peter says and I also would suggest that
4 when we start speaking of categories we have
5 categories of works within the statute that
6 organizes works that are eligible for copyright
7 protection within the subject matter portion of the
8 statute. But, there is nothing in there that
9 suggests that we should further define those by
10 classes of works and indeed if we do do that it will
11 be very difficult to figure out what specific kind
12 of work that a researcher could look at, based
13 specifically on a redivision of, I hate to use the
14 word categories and classes, because it leads us
15 down a road that I think is untenable and, so,
16 therefore, I would reiterate what Peter had said
17 about I think it's more important to look at the
18 uses of the works. Because anybody has a legitimate
19 need for a wide range of information needs and if we
20 narrow these by what one can or cannot look at, we
21 will redirect research in some very limiting ways.
22 MR. KASUNIC: In terms of the specific
23 requirements under the statute, requesting that the
24 Librarian publish a particular class of works, how
25 do we get to that step? If there is a possible
26 exemption, how do we exempt the type of use that is
PAGE 41
1 being made of a particular class of works? How does
2 that fit in with the requirements that Congress put
3 on the Librarian: to specifically publish a class of
4 works?
5 MR. JASZI: In fact, to begin again, in
6 the proposal that I suggested, for example, the
7 suggested class is one which, by virtue of being
8 keyed to the forum in which the works in question
9 are represented or fixed, cuts across the statutory
10 categories of Title 17. Also inherent in that
11 proposal is the limitation on the exemption to
12 situations of otherwise lawful use. So, the nature
13 of the use enters into the latter part of the
14 suggestion or recommendation. That's one
15 possibility.
16 I think another possibility is to think
17 about classes in which the use factor is, so to
18 speak, implicit. The proposals to provide
19 exemptions for ``thin copyright'' works or for
20 copyrighted works that contain significant amounts
21 of public domain government information, are ones
22 which, although they do not directly reference use,
23 do so by implication, since works of those kinds and
24 categories are, as we have heard, of special
25 interest and importance to the research community.
26 So, I think there are a number of
PAGE 42
1 different ways, both explicit and implicit, in which
2 the consideration of potential or actual use might
3 come into the definition of an exemption.
4 MS. PETERS: Charlotte.
5 MS. DOUGLASS: My question is whether
6 the First Sale Doctrine has any special application
7 to use of encrypted works that are purchased for
8 personal use? Does that make any sense? How does
9 the First Sale Doctrine impact encrypted works where
10 you have bought a DVD for your personal use, for
11 example? Are there any implied assumptions that go
12 with purchasing a work, which would seem to flow
13 from the First Sale Doctrine?
14 MS. WIANT: Do you want me to start on
15 this? It seems to me that if we keep the exemption,
16 unless we clarify the exemption, that -- clarify an
17 exemption, that the anti-circumvention could indeed
18 do away with the First Sale Doctrine. It seems to
19 me that if we believe, as a matter of public policy
20 that when somebody has lawfully acquired a piece of
21 intellectual property, that we have historically
22 allowed them to share uses and without this there
23 couldn't even be a sharing of use arguably, whether
24 it's a DVD, whether it's an E-book and that would
25 present a critical problem, I think, for the public
26 and I think it would present a critical problem for
PAGE 43
1 libraries to acquire this information that
2 historically they would at least be allowed to use
3 that the public wouldn't be allowed to make a copy,
4 necessarily, but they would at least be allowed to
5 use the information in whatever its electronic
6 format.
7 MS. LANDESMAN: I think the E-book is a
8 very good example, in fact. What I'm seeing, what
9 we're all seeing, actually, is that in this new
10 digital age the pricing of all the new products,
11 like E-books, and even the conception of the
12 producers of these and who their audience might be
13 is very directed with the individual consumer in
14 mind. And, I've been to conferences about E-books
15 and ever so often, you know, someone will say what
16 about, you know, if I play it for my library, can I
17 lend it? And, we're going, lend? No, no, you buy a
18 single -- and we're going libraries. And, they go,
19 oh, right. So, we have no objection to pricing it
20 in a way that will allow more than one use, as we
21 have always paid more for a subscription to a print
22 journal for a library will cost typically -- well,
23 more, certainly than for an individual, because part
24 of that is because many people are going to use it
25 and that's the understanding under which we acquire
26 it, that we can then share it with our legitimate
PAGE 44
1 patrons for whom we buy that and if I were seeing E-
2 books priced in a way that says here's the library
3 version and this gains -- you can now lend this out,
4 we wouldn't be having a discussion.
5 MR. JASZI: I would just add that full
6 implementation of Section 1201(a)(1), coupled with
7 the use of so-called second level access controls on
8 electronic information products has the potential
9 for hollowing out all sorts of traditional copyright
10 doctrines, of which first sale is clearly one.
11 Although there might remain a literal first sale
12 right to pass on the physical medium to another
13 person, to the extent that there was no possibility
14 of that other person achieving the ability to read
15 or view the content recorded on that physical
16 medium, the first sale right, which has been a very
17 critical engine of cultural development throughout
18 the history of the United States, would be formally
19 preserved but substantively empty.
20 And, that I think is true of many of the
21 traditional limiting doctrines of copyright law,
22 that are put under pressure, so to speak, or would
23 be, by full implementation of Section 1201(a)(1).
24 MS. PETERS: Let me just make a note
25 that there is a separate study that is being done by
26 the Copyright Office in conjunction with NTIA, which
PAGE 45
1 is to look at the effect of electronic commerce and
2 the DMCA on Section 1201(a)(1), the First Sale
3 Doctrine. And, so that is an inquiry that was
4 mandated.
5 Those arguments that you're making now
6 were made before Congress. Congress is interested
7 in that effect and so we will be studying that
8 particular topic separately from this.
9 Okay. Rachel.
10 MS. GOSLINS: Yes. I just had a couple
11 of questions. One is more practical and the other
12 is a little more esoteric so we'll start with the
13 practical one. And, this is for the whole panel,
14 although I'm specifically interested in the
15 experience of the people who had experience actually
16 working in libraries in the recent past.
17 I think it's fair to say that access
18 protection is probably the oldest form of
19 technological protections we've seen on digital
20 works. Of course, oldest is relative when we're
21 talking about the Internet, but password protections
22 and I.D. and I.P. domain validations have been
23 around pretty much since the Internet. So, in a way
24 we're lucky that we have some historical experience
25 with these kind of protections.
26 I participated in a study the Copyright
PAGE 46
1 Office gave on distance education where we were
2 trying to look at copy control protections and it
3 was impossible to draw too many conclusions, because
4 there really wasn't a lot of experience with them.
5 But, as librarians you are perhaps the best suited
6 to educate us about your experience thus far with
7 access control protections.
8 So, I'm curious to know whether in the
9 current world in which there is not a prohibition on
10 circumventing access control protections there are
11 situations in which you have to do that, you have to
12 circumvent access control protections in order to
13 make what you consider a fair use of the work and if
14 you currently experience problems where you face a
15 choice of either circumventing an access control
16 protection or foregoing use of the work?
17 MS. LANDESMAN: Well, I can -- I can't
18 say I've ever done anything along those lines. And,
19 I think most people haven't either, but I could give
20 a couple examples of why our inability to do that is
21 a real problem. One, is in fact, the I.P.
22 recognition is not the panacea that everyone would
23 like it to be. It isn't just for distance learning.
24 That's typically the context, but the fact is that
25 in most libraries our patrons, whoever they may be,
26 are not in the building or not all in the building.
PAGE 47
1 In my specific case there are 2,000 staff working
2 for the AARP. About half of them are here in
3 headquarter's building in D.C. and the other half
4 are all over the country.
5 And, they're coming in through an intra-
6 net so it's a very secure environment, but we are
7 still really unable to negotiate an appropriate use
8 of things, because they're coming in from a
9 different I.P. address or because licensing is
10 still, much to my surprise, here it is 2000, is very
11 geographically oriented. I'm looking at a potential
12 license now to acquire some materials for use by the
13 association and the price quote, it says very
14 specifically, this is for a single building. Call
15 us for a quote.
16 So, we really have a huge long way to go
17 on that. The most concrete example I could give you
18 where our inability to -- even if were to wish to
19 "crack into it" or whatever, has to do with the
20 leasing, whether than actually owning of the
21 information. Most electronic journals or other
22 databases you have the right to whatever is on the
23 database for the term of your subscription.
24 Now, let's say I subscribe today to
25 Journel of XYX and in three years I need to cancel
26 that subscription or let's say Journel XYZ goes out
PAGE 48
1 of business, okay, but I can the print of Journel
2 XYZ in 2000 because I can't afford both. The
3 literal truth is my users will have no -- we have
4 nothing to show for those three years. We don't
5 have the electronic version. We don't have the
6 print version. We don't have anything. And, most
7 licenses at this point preclude that or for those
8 databases that have a rolling effect, so you
9 subscribe and what you have access to is what's in
10 the database at that time, but every year they roll
11 off an earlier year. And, this is fairly common.
12 When that goes you have nothing. We've
13 paid a lot of money, but we do not have the
14 information to give to our patrons. Some libraries,
15 certainly bigger than mine, might wish to -- well,
16 there is a lot of issues with this. We want the
17 publishers to do the archiving and the publishers
18 and saying, why should we archive? The fact is that
19 right now nobody, whether you're doing it or not,
20 you just don't have the access to get at it.
21 I don't know how concrete that is, but
22 that's what we're up against and I don't have the
23 solution, but that's the problem.
24 MS. GOSLINS: That's --
25 MS. WIANT: There are a couple of things
26 I would like to add to that. Yes, it's true that in
PAGE 49
1 many cases that password protection works and I.P.
2 protection works and even those of us in
3 universities with a high level of technological
4 support have difficulty in serving students and
5 faculty from home unless we have something of a
6 proxy server, but we can figure out ways to deal
7 with those. The more critical problem is I'm in a
8 private university, but we still have as part of our
9 mission serving anybody who has need of legal
10 information on the western part of the state. And,
11 for a very long time we were the only significant
12 law library in the state west of the Blue Ridge.
13 If we have any member of the public who
14 comes in and physically comes to the library for
15 legal information, if that legal information happens
16 to be electronic, typically we cannot serve those
17 individuals unless it's just on a web base, because
18 the licensing agreements typically cover only
19 students and faculty and sometimes those are
20 limiting so that they only cover the law student and
21 law faculty, not even the undergraduate faculty.
22 So, that's problematic, but more problematic is the
23 member of the public who comes to us for legal
24 information and whom we cannot serve because they're
25 restricted. They can't search themselves and even
26 if we were to do it, the licensing agreements would
PAGE 50
1 say you can't have access to this information. It
2 might well be information that is federal government
3 information and of value at a database. It matters
4 not to them that the value is added, they simply
5 want access to information and we can't -- we can't
6 provide it and it is nowhere else available to them
7 in any other form as more and more information
8 becomes available electronically.
9 Then we have the additional problem that
10 information that has, on occasion, been available to
11 us as was mentioned, disappears from a database.
12 The most significant example that I can think of
13 that is in my written testimony, is an example of
14 one of the major legal databases which for a period
15 of time had a French database and one day it was
16 there and the next day it was not.
17 Now, many of us cannot maintain
18 collections of primary legal information in either
19 its original language or even an English translation
20 and so our only access would be to that and suddenly
21 it's gone and totally gone. And, for many of us an
22 access would be one of the few major law libraries
23 in the country that have foreign legal collections.
24 So, that becomes problematic for us when that
25 disappears.
26 And, another example, and while it's not
PAGE 51
1 legal information, just points up the problem of not
2 only access, but when we're talking access we are --
3 if you control the access, in point of fact you are
4 controlling the use. There is no way, unless we
5 figure out some way to do read only, there is no way
6 that somebody could look at that information.
7 But, this is a separate point, but it
8 actually speaks in some ways to the preservation
9 problem and this example came up sort of repeatedly
10 during CONFU, but it's an example that I think very
11 clearly does represent, although a situation in
12 which we are all facing, and I would hate to be in
13 20 years the person who cite checks for a law review
14 article and then finds that the electronic sites are
15 not there to be cite checked.
16 The example that was given in CONFU
17 happened to be in the software world. For instance,
18 if you had somebody who had, as their research, the
19 development of software programs, I want to say
20 computer scientists. I would not be the person who
21 would be studying the development of software
22 programs, but in the event that that happened there
23 isn't anyone, including the software developers, who
24 are keeping the really early versions of operating
25 systems.
26 Now, if we don't figure out a way that
PAGE 52
1 libraries are authorized not only to access, but to
2 make copies for preservation copies, there is a lot
3 of that information that simply will be totally
4 unavailable, whether it's licensing or any other way
5 that would restrict access.
6 MS. GOSLINS: I have one brief follow-up
7 question and then I'll get to my esoteric question,
8 which actually all of you have started to answer
9 already, which makes me very happy.
10 I just wanted to follow-up briefly on
11 the French database. I guess I want to understand
12 better how that's a problem of access, as opposed to
13 a problem of a producer deciding to no longer
14 maintain a database. It's not that there is an
15 access control that is then preventing you from
16 accessing the French party's databases, but it no
17 longer exists. Right? I just want to make sure I'm
18 not missing something.
19 MS. WIANT: In that particular instance
20 it is less one of access than one of the library's
21 responsibility to preserve its collection and had we
22 been able to continue to have access to a collection
23 of information that we had acquired lawfully, even
24 after they ceased to maintain it, if for instance we
25 had been given notice, we might have been able to
26 take over the responsibility or collectively we
PAGE 53
1 might have been able to work with say even the law
2 library of the Library of Congress, so that somebody
3 would have kept that information.
4 MS. GOSLINS: Okay. I love you. You're
5 leading right into my next question. And, I would
6 like to spend a little time understanding the
7 panel's view on the inter-relation between the
8 1201(a)(1) prohibition on circumventing access
9 control protections and circumventing controls on
10 copying, which is not prohibited under the DMCA, the
11 conduct of circumventing the copy control. All of
12 you in someway have identified concerns about
13 abilities to preserve and archive works.
14 I believe, Mr. Jaszi, you made a
15 suggestion for types of works that should be
16 exempted, which involved uses made after a
17 legitimately acquired copy is obtained. Ms. Wiant,
18 you talked about when a library buys a print
19 subscription there is an ability to make a copy and
20 that might not be the case in the digital world.
21 And, Ms. Landesman, you've also identified archiving
22 as one of your three major concerns.
23 And, I guess what I would like to
24 understand a little more is what is it about
25 1201(a)(1) that would prevent you from making a copy
26 once you have access to work? Because again we have
PAGE 54
1 to remember the distinction between access control
2 technologies and copy control technologies. And,
3 after you have access to a work, how is your ability
4 to copy that work for non-infringing uses, effected
5 by the prohibition on access control?
6 MR. JASZI: Well, if I might begin, I
7 think the answer to that question lies in
8 fundamental definitions. And, one of those is the
9 definitional distinction between copy and work. The
10 person who has purchased a fixation of a particular
11 work or works has of course now achieved access to
12 that physical copy, but not necessarily access to
13 the works contained in it. And, as the record in
14 this rule making makes clear, the content industries
15 look at the question of access control as having two
16 dimensions, initial access and second level access.
17 In other words, in the vision of the
18 content industries, the access controls, to which
19 Section 1201(a)(1) speaks include not only controls
20 that would, for instance, control whether someone
21 could initially download an electronic work from the
22 Internet, but also embedded code within that
23 download that would require reauthorization for
24 subsequent consultations of its content.
25 In effect, in that vision, access and
26 use merge, and access controls -- so-called second
PAGE 55
1 level access controls -- become effectively a means
2 for regulating use. The burden of my suggestion for
3 an exemption today was really that as far as it is
4 possible to accomplish within the scope of this rule
5 making, the thrust of Section 1201(a)(1) should be
6 focused toward issues of controls on initial access,
7 and not toward issues of second level access
8 controls which functionally merge with controls on
9 use.
10 MS. WIANT: I think Peter said it as
11 well as I could have said it.
12 MS. GOSLINS: Thank you very much.
13 MR. CARSON: I would like to follow-up
14 on a question Rachel asked. And, first of all I
15 guess I need to make sure we all understand and
16 maybe that I understand correctly the question
17 Rachel asked. What I think Rachel was asking a
18 couple of questions ago, was basically for whatever
19 evidence any of you have, that up to now, in any
20 way, the technological measures currently in place
21 that control access to works have been impediments,
22 have actually in practice been impediments to lawful
23 uses of those works.
24 And, if that wasn't how you understood
25 it, I guess I would like to re-ask the question and
26 just make sure we have the universe of experiences
PAGE 56
1 that you are aware of up to now with respect to
2 those impediments that have been imposed by
3 technological measures controlling access.
4 Does anyone have anything to add to
5 what's already been said?
6 MR. JASZI: Well, I guess the only
7 addition I would make, although I'm the least well-
8 qualified person, because I'm not in the day to day
9 information use business, is that it seems to me
10 that although the inquiry is a very important one,
11 it goes to only part of what should be the factual
12 foundation for whatever action is taken in this rule
13 making. That is because it's not clear to me, by any
14 means, that we have yet seen the most aggressive,
15 likely implementation of technological controls on
16 access, especially the second level controls to
17 which I referred earlier.
18 In fact, I think we are likely to see
19 more aggressive implementation of second level
20 technological access controls when Section 1201
21 takes full effect. So, what I've heard from many
22 information professionals is that there are a
23 variety of situations in which their ability to do
24 their jobs today is to some extent frustrated by
25 access controls, some of which were detailed a
26 moment ago, but I fear that there is every reason to
PAGE 57
1 believe that the worst is yet to come.
2 MS. LANDESMAN: I think we haven't
3 really seen the impact quite yet, but I keep my eye
4 on the E-book analogy that I mentioned before,
5 because there just aren't that many of them yet, but
6 every meeting I've been to where the E-book
7 producers are discussing our new product and our new
8 this and our new that, has very clearly got a -- I
9 don't know how they do it, but it's a technological
10 thing that gives rights for use to the purchaser
11 only of the book and precludes any other -- lending
12 it to anybody for that matter. And, that is the
13 direction that they're going. And, I think that's
14 going to really start hitting, you know, as the E-
15 book becomes more prevalent than it current is,
16 which should be anytime now.
17 MS. PETERS: Can I ask you a question
18 with regard to the E-book, or any of you? It really
19 has to do with where you use access versus licensing
20 terms and conditions. It is very clear that when
21 Steven King's book was made available most of the
22 purchasers were individuals. If a library wanted to
23 acquire for its patrons the Steven King E-book, is
24 there any way that you could have worked with the
25 publisher to have access for that? In other words,
26 to what extent can libraries, following what you say
PAGE 58
1 is, you've got to serve the public, you're the place
2 of last resort, work with the publisher to get,
3 through an agreement, what you believe is the access
4 that you need to serve your patrons.
5 MS. LANDESMAN: I think that's an
6 evolving thing, too. I can only keep going back to
7 the meetings that I go to and the look of
8 astonishment on the publisher's face when the word
9 library is mentioned.
10 So, I think part of that is I would love
11 to work with the publishers, but the publishers are
12 going down another path. Not all of them. There
13 are exceptions to this, but the development may
14 already be in place that doesn't allow for this. I
15 can't actually answer your question. Certainly we
16 would be happy to negotiate with the publishers, but
17 I'm also seeing -- going back to my licensing
18 question, it's all moving toward a pay-for-use and I
19 guess our fear of the technological measures of that
20 just lets that happen before you can negotiate it
21 out.
22 MR. CARSON: We're heard the term pay-
23 for-use a lot and I guess to what degree are we
24 there already? To what degree is that a reality
25 today? And, if it is a reality today, what problems
26 does that impose?
PAGE 59
1 MS. LANDESMAN: The definition of use
2 can be very broad. What I've seen so far have been
3 a little broader maybe than that literal thing, but
4 the next effect is say when you have to negotiate a
5 license for use of a product it can be for a certain
6 number of people or -- every vendor has its own
7 version of how that happens and it's either by
8 blocking unauthorized users or providing you only
9 with a certain number of passwords and when that's
10 exceeded the next person can't get on or the CD ROM
11 that we've mentioned, you know, if you buy a CD --
12 if the information is on a CD or will be a DVD, and
13 the software and the way that works it has to
14 physically be used at one specific computer, because
15 there is all this other stuff that has to get loaded
16 along with it. And, so that certainly effects the
17 use limiting to one person at a time that specific
18 computer.
19 I don't have personal experience with a,
20 oh, you're the next user, click here and pay us, you
21 know, X amount of dollars, because I'm not sure how
22 far along that is and I can't speak to it
23 personally.
24 MS. WIANT: I guess in my mind your
25 question raises for me the issue about the extent to
26 which a contract could prohibit legitimate uses
PAGE 60
1 which the copyright law has historically provided.
2 And, I guess I find that an equally unclear area to
3 provide any guidance to libraries about the extent
4 to which any use that's not spelled out, but which
5 otherwise might have been made, they continue to be
6 legal.
7 I was just trying to think of an example
8 and I haven't played this out completely, so let me
9 just put it on the table and we'll see where it
10 goes. Suppose an academic law school chooses or has
11 faculty among us who typically teach from an
12 electronic course book. Typically that would be
13 licensed for, I guess, for the term in which or if
14 it was a couple terms in any year, would be licensed
15 for use by the students who are specified to be in
16 that class for that particular time.
17 Now, historically libraries, some of
18 them, choose to keep earlier versions of case books,
19 because the faculty choose to go back for varying
20 reasons or if you're developing a historical area
21 you would want to have that in the collection. Case
22 books are typically licensed annually or by the
23 term, so how does an academic library or any other
24 library maintain an access which might have been a
25 fair use some years down the road, presuming that
26 they still had an electronic file of that particular
PAGE 61
1 information, now would that be a fair use? I would
2 argue it would indeed be a fair use for a faculty
3 member to look at an electronic file that was used
4 in a class X years earlier, but we would have had it
5 only for those students and that faculty in that
6 particular window of time.
7 It's likely that any negotiated
8 agreement might not even contemplated the use by
9 that or if your school used it and another school
10 was contemplating using a future edition and wanted
11 to looked at an earlier edition, where it wasn't
12 maintained any place else, would that be a
13 legitimate use for someone to actually access and
14 use that?
15 Now, the access controls would say, no,
16 you couldn't have access. That's where access and
17 use, I think, merge in the secondary use. So, I
18 think there could be -- that's just one that came to
19 mind while I was sitting here thinking about, well,
20 how would you make these pieces fit? And, I think
21 we -- I presume that's why we're here today, to talk
22 about how we might make these pieces fit, but this
23 is one aspect of the problem.
24 The intersection between how the
25 copyright law and license agreements merge I think
26 is another area that we can't overlook as we talk
PAGE 62
1 about how access controls would effect subsequent
2 uses.
3 MR. JASZI: In my view we are not there
4 yet. In my view we are only on the threshold,
5 trembling on the brink of a pay-per-use universe.
6 And one of the reasons why we're not there is that
7 legal support does not currently exist for the
8 aggressive implementation of second level access
9 controls.
10 Whether we would be disadvantaged if all
11 information or much information were to become in
12 the future, available to consumers only on a pay-
13 per-use, or by the drink, formula is, I think, an
14 issue that brings us back to questions of what I
15 might call cultural faith. There is a set of deep
16 underlying assumptions about cultural practice with
17 respect to information use, which I think we might
18 discover many of us share. One is the notion that
19 there is something good -- something positive --
20 about the kind of ability to use information that
21 comes to us under existing law and existing
22 technology when we purchase or otherwise lawfully
23 acquire a copy of a copyrighted work.
24 Under those circumstances we are
25 permitted to make use of the contents of that work
26 that's comprehensive, that's repeated, that's
PAGE 63
1 perhaps inefficient, but ultimately productive. I
2 think that the concern about the coming of a pay-
3 for-use information environment is not only a
4 concern about cost, although cost is certainly an
5 issue to be considered, but a concern about the ways
6 in which the requirement to make more parsimonious,
7 more efficient and more restricted use of
8 information in various electronic media would effect
9 our cultural practice.
10 I realize that that's a very difficult
11 thing to get at in a rule making proceeding of this
12 kind, but I also think that to fail to consider
13 questions about the effects of the implementation of
14 second level access controls on existing cultural
15 practice would be to overlook what might may
16 ultimately be the most important area of adverse
17 affectation likely to arise in connection with the
18 full enforcement of Section 1201(a)(1).
19 MR. CARSON: Well, on a couple of things
20 Professor Wiant said. First of all I'm not
21 persuaded how relevant it is, but I just want to
22 explore it a little bit anyway. It's going a bit
23 far afield, perhaps. You gave the example of a
24 situation where a university or library might
25 acquire rights for a limited time and then
26 subsequent to the termination of that period may
PAGE 64
1 discover that it has ultimate need to have access
2 again to that work.
3 Typically, if there is anything typical
4 about this, in those situations does the library or
5 university have the option of negotiating for
6 permanent rights or rights for a limited time and
7 make a choice, no, we only need it for this limited
8 time, so we'll pay the lesser price? Or do you just
9 not have a choice?
10 MS. WIANT: I think it's fair to say
11 both proprietors and libraries are becoming more
12 sophisticated in their negotiations, but for a long
13 period of time there wasn't a choice because they
14 were not preserving the files and if we chose not to
15 or we were not given the option to even decide that
16 we were going to figure out a way to preserve that
17 information, it wasn't available. So, I would say
18 that the answer to your question is not clear.
19 MR. CARSON: I had that feeling. I
20 wanted to follow-up on your responses to Rachel as
21 well. You gave a situation where some of your
22 license agreements permit use only by students and
23 faculty. So, if someone else walks into the library
24 you couldn't give them access. I want to make sure
25 in the context of this rule making whether that's a
26 problem in the context of this rule making. In
PAGE 65
1 other words, to what degree are the technological
2 controls preventing you from giving access to that
3 outsider and to what degree is it simply the terms
4 of the license? If you wanted to breach the license
5 you could give them access, I assume. Nothing
6 prevents you in the technology from getting that
7 access.
8 MS. WIANT: I suppose that is -- in the
9 instance again that's coming to mind, I suppose it
10 is one in which one could violate a provision to do
11 so, it may not be the technological controls, but I
12 can think of -- simply because the piece of
13 information that I'm thinking of happens to be in
14 one of the major legal databases and the way we
15 access that is different. But, the example that is
16 immediately coming to mind is one of let's say a
17 local attorney who has a tax question and needs a
18 private letter ruling, the full text of which are
19 not in print and the access to which is in a major
20 legal aggregated database and because of the
21 restrictions on that we couldn't legitimately supply
22 a walk-in attorney who is not a member of our
23 immediate community.
24 Now, it is true that that would be -- in
25 that particular instance, because of the database in
26 which I happen to know there was full text opinions
PAGE 66
1 available, that would be a licensing scenario.
2 That's not to say though that if that same
3 information were in some other database on the
4 Internet that it would not be an access problem, as
5 well as again we're back to the secondary use of
6 could one even look at it to decide whether or not
7 that was the private letter ruling they wanted
8 before you actually got to the level of getting a
9 copy.
10 How one goes about making sure that
11 you've actually located the piece of information
12 that you need, particularly when you can't see it in
13 any other way in a whole text scenario and I'm
14 thinking conceivably that could be in a database for
15 which the access is technologically controlled and
16 therefore the use is controlled. But, because I
17 don't know whether the private letter rulings in
18 full text are in such a database, I can't answer the
19 question in the situation it was a licensing
20 limitation.
21 MR. CARSON: Okay. What I'm trying to
22 get out is what could we do to help you in that
23 situation and I think what I'm hearing is confusion
24 at best and perhaps there is nothing we could do in
25 the context of this rule making that would help you
26 in that situation.
PAGE 67
1 MS. WIANT: What you could do to help us
2 is figure out an exemption that would at least allow
3 us to look at the information to decide whether it's
4 information that we go to the second level and get a
5 copy.
6 MR. JASZI: And, I might add that I
7 think one thing you could do to help in the rule
8 making is to make it clear that the use of access
9 controls will not supersede the use of licensing in
10 the future, because I think there is a real
11 possibility that the terms and of use that are open
12 to be negotiated between suppliers and consumers in
13 the present environment would in the conditions of
14 the full implementation of Section 1201(a)(1) come
15 simply to be dictated by technological means.
16 MS. PETERS: My question had to do with
17 kind of where part of the problem is when we say
18 that there is not fair use at all. What we're
19 really talking only about is access control and your
20 example had a member of the public who presumably
21 was not a student trying to look at a database for a
22 class project, but more likely a practicing attorney
23 who was trying to look at it for a client.
24 MS. WIANT: But a federal government --
25 a piece of federal government information that
26 otherwise would not be available for copyright
PAGE 68
1 protection I believe was my example there.
2 MS. PETERS: Yes. And, you're saying
3 the only place that this is available is in this one
4 database?
5 MS. WIANT: That I can think of at the
6 given moment.
7 MS. PETERS: Okay. Because that -- with
8 a lot of information with Lexis and Nexus, I mean
9 almost all the court opinions are available
10 elsewhere.
11 MS. WIANT: Elsewhere now.
12 MS. PETERS: Yes.
13 MS. WIANT: Or becoming increasingly
14 available, yes. But, as I say, there are many
15 examples and there are many examples of federal
16 government information that has historically been in
17 print and that are not becoming only electronically
18 available as well. But, some of those are still
19 available electronically from the government, but
20 there are examples, such as the one I just raised,
21 that don't fall into that category.
22 MR. CARSON: Let me follow-up on your
23 example, the French database where it suddenly
24 disappeared. First of all are you talking about
25 something where you actually had the physical copy
26 or are you talking about something where you had it
PAGE 69
1 online.
2 MS. WIANT: No. I'm talking about an
3 electronic database. One day it was there and then
4 without notice was not.
5 MR. CARSON: Okay. What could we do in
6 the context of this rule making to resolve that, to
7 help you out with that situation? How would
8 anything we do permit you to get access to that when
9 it's no longer there? Okay, that's the wrong way
10 to put it, perhaps, because I think I answered my
11 own question. What could we do that would resolve
12 the problem?
13 MS. WIANT: As in other formats, when
14 publishers are no longer maintaining in print and
15 now lets say in access, historically libraries if
16 after making a reasonable search in the market,
17 libraries have been able then to make a copy for
18 preservation purposes. Maybe a similar pattern if
19 the proprietors are no longer going to maintain
20 electronic copies, that if libraries were allowed,
21 as they are under Section 108, if libraries are able
22 to make preservation copies if after a reasonable
23 venture into the market that they cannot find a
24 replacement copy at a reasonable cost, that
25 libraries be allowed to make some preservation
26 copies.
PAGE 70
1 MR. CARSON: In this rule making all we
2 can do, I think, is determine whether there are
3 particular classes of work for which the anti-
4 circumvention prohibition, with respect to access,
5 is exempted. How does that solve this problem? Do
6 we have a tool that will really solve the problem
7 for you?
8 MS. WIANT: I guess I come back to
9 Peter's comment that when you look at access you are
10 in fact looking at use in many ways. I mean, if we
11 can't get access to it, we can't use it. If the
12 restrictions control the access, they therefore
13 control the use and therefore it simply doesn't
14 exist to us.
15 MR. JASZI: In other words it would be
16 possible in a rule making such as this one, to
17 enable the archival copying of potentially ephemeral
18 electronic information products, despite the fact
19 that those products might bear technological
20 protection measures which would otherwise bar such
21 archival copying.
22 MR. CARSON: So, you're saying even
23 though this is in a remote database you would
24 download it somehow and then after it is no longer
25 available in that database, if there is any
26 technological protection to access you should be
PAGE 71
1 able to circumvent that protection?
2 MR. JASZI: Well, I don't know enough
3 about the library technology involved to be able to
4 go to that level of specificity, but my
5 understanding of the problem is that one reason it
6 exists is that under current arrangements, in part
7 because of the use of technological protection
8 measures, archival copying of these materials is not
9 a possibility. Thus, when the materials are gone
10 they're gone.
11 Again, I don't have the library
12 expertise necessary to answer at the level of
13 precision that I would like, but I think in more
14 general terms the answer to your question is that it
15 would seem to be within the scope of this rule
16 making potentially to enable some forms of archival
17 copying, despite the fact that those forms of
18 archival copying might involve circumvention of
19 access controls.
20 MR. CARSON: One final line of question.
21 I would like each of you to put yourselves in the
22 place of the register right now. And, it's time to
23 make your recommendation to the Librarian and it's
24 time to tell the Librarian that this is the class or
25 these are the classes of work which you should
26 exempt.
PAGE 72
1 Now, you have all, I think, to varying
2 degrees, sort of hinted or perhaps explicitly stated
3 this in your testimony, but I guess I would like to
4 hear it succinctly now from each of you, what class
5 or classes would you advise the Librarian to exempt?
6 MR. JASZI: What I've heard today, if I
7 can recap from our testimony, is a series of
8 recommendations. There is the class of works to
9 which I referred in my testimony; that is, works
10 embodied in lawfully acquired copies, which are
11 sought to be used for otherwise lawful and non-
12 infringing purposes.
13 I think we're also heard that works
14 embodying significant amounts of otherwise public
15 domain -- and particularly government -- information
16 are an area of special concern. Those are two that
17 immediately spring to mind, based on today's
18 testimony. Perhaps as well my colleagues have
19 others to suggest.
20 MS. LANDESMAN: I would support what he
21 said. I think we get a little hung up between
22 what's in it and the format that it's in. And, I
23 guess a lot of -- it's no different than it was in
24 print, so as he very ably described. This is the
25 type of thing that should be exempted. Whether it's
26 now in a digital format should not be the negating
PAGE 73
1 factor. So, if it were in print then we would
2 legitimately be able to make use of it.
3 MS. WIANT: I would encourage the
4 Librarian to define classes as classes of legitimate
5 uses of works of lawfully acquired materials and to
6 look at the relationship between 1201(c) and
7 1201(a).
8 MR. CARSON: One question for Professor
9 Jaszi. I just want to get a little clarification so
10 I understand what you meant when you talked about
11 works embodied in copies that have been lawfully
12 acquired by users. A typical example, I suppose,
13 would be you get a CD ROM with something on it. I
14 can understand that. Would you also include a
15 situation where you're on the Internet and you're
16 able to download something from the Internet so it's
17 now sitting on your hard drive? Is that a work that
18 you have now acquired that would be subject to this?
19 MR. JASZI: Yes, it is.
20 MR. CARSON: Okay. Tell me what
21 wouldn't be subject to that?
22 MR. JASZI: Any work that is provided
23 electronically in a format which limits the ability
24 to fully download or acquire a copy; for instance,
25 when I go on line I cannot with Lexis and Nexis,
26 download the Lexis/Nexis database. It's not a
PAGE 74
1 facility they provide to me. They provide me the
2 ability to read and the ability to capture portions
3 of the database, but not the ability to capture the
4 collection as a whole.
5 And, I think we're going to see, as my
6 testimony indicates, a great many other
7 implementations of that kind of limited access
8 electronic information commerce, so much so that
9 three years from now we may well be back talking
10 about the necessity of further qualifying the reach
11 of 1201(a)(1) with respect to those emerging
12 business models. The distinction is between the
13 business model, which depends on the enabling the
14 consumer, by one means or another, to acquire a
15 lawful copy and the many emerging business models
16 which are based on more limited forms of electronic
17 access.
18 MR. CARSON: It sounds like you're
19 willing to define the scope of your exemption by
20 reference to an almost acquiescence in the
21 technological controls that the provider puts on
22 copying and reproduction and so on, if I understand
23 you correctly. If the content provider won't let
24 you copy the work, then you're willing to say fine,
25 I don't have it, and I'm not entitled to the
26 exemption. If the content provider is willing to
PAGE 75
1 let you copy it, then you have it and you're
2 entitled to the exemption. Is that the effect of
3 what you're suggesting or am I missing something?
4 MR. JASZI: I don't think you're missing
5 anything. I think that the goal of this, if I can
6 go back to first premises, the goal that the Digital
7 Future Coalition has had from its formation in this
8 process has been that of preserving the existing
9 balance of forces between proprietary control and
10 use privileges in copyright law. One of the central
11 features or aspects of that balance is that existing
12 copyright doctrine facilitates wide ranges of
13 legitimate uses of information by individuals who
14 have purchased or otherwise lawfully acquired copies
15 thereof.
16 The model of information commerce that
17 involves the distribution of copies has been and
18 continues to be a very important part of the
19 information commerce picture overall. The specific
20 exemption that I'm proposing is one which would be
21 designed to assure that insofar as that model of
22 information commerce is perpetuated its consequences
23 for the consumer remain functionally similar,
24 although the media involved may change.
25 I absolutely concede the possibility
26 that as new business models are implemented further
PAGE 76
1 issues about the adverse effects from the
2 implementation of Section 1201(a)(1) may arise with
3 respect to those new business models. But the
4 proposal that I'm making today is one that is
5 specifically concerned with, the perpetuation of
6 traditional models of information distribution,
7 which I think will continue to have some vitality in
8 the new information environment.
9 MS. PETERS: I'm struggling to try to
10 figure out where our direct charge is with relation
11 to all what we're hearing as a whole. Much of what
12 we've heard with regard to the problems that
13 libraries are encountering are problems that we
14 could sit here and discuss whether or not there ever
15 was an enactment of Section 1201. We have said
16 access controls have been in place for a long time.
17 Copyright owners have licensed libraries to a
18 variety of things.
19 To date, to your knowledge, even though
20 the provisions of the DMCA are not in place, you're
21 not aware of the fact that libraries have basically
22 downloaded like CD ROMs and for preservation
23 purposes because the CD ROM may have an expiration
24 date with regard to the access to the information.
25 I guess, so I'm struggling with where we are today
26 and where we will be in three years, because that's
PAGE 77
1 the period of time that this rule making will cover
2 where there is, because of control of access
3 provision, will not be able to get certain
4 information any other way. Because I think it
5 really is an issue about, as we mentioned in the
6 beginning, it's not how inconvenient it is to get
7 the information, but whether or not you can get the
8 information and I guess I'm still struggling because
9 some of the concerns that you have, which are very
10 legitimate concerns, I'm just not at the point where
11 I can figure out that they really directly relate to
12 our activity with regard to excepts for access
13 controls.
14 So, I'm kind of back where David is.
15 Given the scope of what our direction is -- having
16 read the -- let me back up. Having read legislative
17 history, when you're directed to create exemptions
18 for classes of works and we know that exemptions are
19 crafted narrowly to address a certain problem, and
20 yet what we hear with regard to the scope of what
21 you think the exemption would be, I have a concern
22 that you vacillate the very protection that Congress
23 intended.
24 So, I guess my question is, if we exempt
25 broadly, then what happens to the protection that
26 Congress intended to give copyright owners with
PAGE 78
1 respect to the access controls that they would be
2 using?
3 MR. JASZI: Well, I think that, in fact,
4 the exemption that I have proposed is one which, as
5 I suggested in my testimony, might effectively
6 restore Section 1201 to what was the original
7 Congressional intent.
8 My reading of the legislative history --
9 not only the legislative history relating to this
10 rule making, but the legislative history relating to
11 the DMC as a whole -- is that throughout the access
12 control/use control distinction was taken seriously,
13 and that it was the understanding of the principal
14 proponents of the legislation that the term ``access''
15 as employed in Section 1201(a)(1) was in effect
16 limited in scope to what might be called initial
17 access or first level access controls.
18 The exemption that I have proposed is
19 one which would, if employed, in effect restore that
20 understanding of Section 1201(a)(1). I'm not sure
21 that that would by any means cure all of the
22 potential difficulties with the effect of access
23 controls on information consumers. But it would
24 certainly have the effect of bringing the 1201(a)(1)
25 provisions back to their roots or origins, so to
26 speak.
PAGE 79
1 So, far from representing a departure
2 from the original understanding of the legislation
3 as represented by the legislative history, it would,
4 in my view, represent a return to that
5 understanding.
6 MS. PETERS: My question you were
7 focused on, initial access, if I am a library and
8 I'm negotiating for use for a particular year, I can
9 basically say I want unrestricted access to my
10 patrons, on the premises, for X dollars. It's a
11 fair amount because it's for the whole year for
12 everybody who comes in. Is it not possible that the
13 business model that says I'm going to basically bill
14 you per month, based on usage, could be cheaper or
15 less than the per year projection for the whole?
16 That was anyone.
17 MS. WIANT: I can think of scenarios
18 where that might be cheaper. Well, one of the
19 problems of this is an inconvenience problem though.
20 I recognize that. If you're in an academic
21 environment where you're being billed on how many
22 times a student chooses to look at whatever and each
23 one of those are charged, particularly when we're
24 wanting an environment where inquiring minds want to
25 know. We would like them to be inquiring and some
26 of that may be an environment in which say school
PAGE 80
1 boards or at the universities or whatever, would
2 have a very hard time estimating cost of how many
3 times somebody is going to look at something.
4 So, yes, it is a changing business model
5 and probably the other --
6 MS. PETERS: I'm just trying to get at
7 that per se it not necessarily is a bad model. I
8 mean, obviously with the Internet within a
9 transition and we're going to see many, many new
10 business models and in any business model it's the
11 consumers who ultimately accept or don't accept the
12 business model. So, I was just getting at your
13 focus on, you know, we really should only be talking
14 about initial access versus later access.
15 MR. JASZI: I see no difficulty with a
16 situation in which consumers, library consumers in
17 this case, or as it might be individual consumers in
18 some other case, can freely accept the consequences
19 of their choice as to the form of access that they
20 receive, provided that there is, in fact, a
21 meaningful opportunity to negotiate that issue. But
22 I am very concerned about the possibility that terms
23 of access will in effect be technologically imposed
24 rather than made subject to that kind of
25 negotiation. It's there, I think, that the role of
26 this rule making, in creating exemptions which may
PAGE 81
1 have an effect on shaping the market environment in
2 which those choices are made, is so important.
3 MS. PETERS: One of the beauties, I
4 think, of what Congress did is by imposing a three
5 year kind of a look see. It's a way in which you
6 continue to look at what happens and you strike the
7 balance as you see it. I guess I was a little
8 surprised at some of the comments that we received,
9 because working in a library where all of us who
10 work here access to the Internet and I don't have
11 authority to go on bill anything to the Library of
12 Congress. I can spend most of my day going on the
13 Internet and getting a lot of stuff free. So, I
14 haven't seen it as a locking up necessarily of
15 information, but in many ways too much information
16 that was out there and yet we're focusing, you know,
17 the locking up.
18 So, I guess what I'm trying to get at is
19 what I've sort of heard is, except for some examples
20 that you gave where certain information, whether
21 it's public domain or federal that isn't really
22 available openly, in the next three years what
23 information do we actually think is not going to be
24 available to people who want to use libraries? Is
25 it as broad as you -- I mean, do you -- I want to
26 say, do you honestly -- in the next three years do
PAGE 82
1 you actually predict that we are going to see this
2 massive locking up of information in all categories
3 of works?
4 MS. WIANT: The short answer is yes.
5 MS. PETERS: Okay. Does anyone else
6 have any questions?
7 MR. KASUNIC: A couple of things. Are
8 there any particular technological control measures
9 that seem to be more restrictive than any other?
10 Are there certain things that are less objectionable
11 or controlling in terms of secondary uses or
12 secondary access of works?
13 MS. WIANT: I'm having a difficult time
14 of answering that, because I think technological
15 measures is one of those totally undefined terms on
16 the one hand and, two, I also am not sure I know
17 enough technologically to answer that.
18 MS. LANDESMAN: Yes, I'm not quite sure,
19 you know, quite where that is. I personally have a
20 real problem with having to enter a password. And,
21 the reason I say that is that you really don't want
22 to be giving out this password to thousands of
23 people and saying keep this a secret. You also
24 don't want them to have to come to you and you have
25 to log them on. It's just a very difficult, you
26 know, arrangement, but I'm not sure if that's where
PAGE 83
1 you were going.
2 MR. JASZI: My response is that I don't
3 think so. I'm by no means a very good technologist,
4 but the little I know about the different levels of
5 intensity of access controls, actual or potential,
6 suggest to me that the real distinction among them
7 is not one based on technology, but based on the
8 purposes for which they're implemented. Many of the
9 available forms of technological access control can
10 be implemented for a variety of different purposes,
11 and that to the extent there are distinctions to be
12 made, they ought to be made in terms of the purpose
13 for which the controls are implemented, what they
14 are designed to restrict, rather than on the basis
15 of the technology itself.
16 MR. KASUNIC: I think that some of the
17 comments stated that certain measures were merely an
18 obstacle to obtaining initial access and that some
19 of those measures were -- in terms of passwords --
20 less restrictive. That once you had enabled initial
21 access, then it was only a question of using the
22 work. A technology or protection measure didn't
23 really have any other effect on uses. So, I guess
24 part of my question is: are the technological
25 measures distinguishing in anyway between access and
26 the use of works?
PAGE 84
1 MR. JASZI: Well, just to give a simple
2 example, perhaps over simplified from a
3 technological standpoint, but illustrative, let's
4 take the simple measure of the password. We could
5 imagine an implementation of password security which
6 would permit the user, once the password has been
7 requested and given in the first instance, to make
8 continuous and free use of content thereafter. We
9 could, by contrast, imagine an implementation of
10 password security that would require that every time
11 the individual revisited the work embodied in that
12 physical medium or download, the password would be
13 requested again or that the password would be
14 requested every few minutes, so that the use of the
15 work could be billed in five minute periods or two
16 minute periods.
17 In other words, we could imagine -- at
18 least theoretically and perhaps there would be
19 practical difficulties -- the implementation of a
20 measure like a password as a first level access
21 control or as a relatively comprehensive second
22 level access control. The distinction is not in the
23 technology, but in the manner and purpose of its
24 implementation.
25 MS. PETERS: Anyone else?
26 MS. DOUGLASS: I just wanted to make
PAGE 85
1 sure that I got your answer correctly about whether
2 or not we should be looking at 1201(f) fixed this or
3 1201(g) fixes, like reverse engineering or
4 encryption in the course of doing exemptions or
5 possible exemptions of 1201(a) or should we stick to
6 our knitting and vote that 1201(a) only? I think I
7 heard your answer, if you would clarify it or did
8 you answer that?
9 MR. JASZI: Well, I'm not sure I
10 answered that.
11 MS. DOUGLASS: Okay.
12 MR. JASZI: I would be pleased to try to
13 do so. Your charge, as I understand it, relates to
14 1201(a)(1) as such, but the question of how that
15 charge should be considered and executed seems to me
16 inevitably related, to some extent, to your
17 understanding of the specific exemptions. In other
18 words, since the specific exemptions of Section 1201
19 bear on the scope of Section 1201(a)(1) itself,
20 providing in some cases potential carve outs from
21 1201(a)(1)'s scope, then the question of how
22 adequate or complete those exemptions are with
23 respect to the kinds of legitimate activities to
24 which they were originally addressed seems relevant
25 to your undertaking.
26 If we were to decide, for example, that
PAGE 86
1 one of the specific exemptions was in fact so
2 narrowly cast that it failed to provide scope for
3 otherwise important and legitimate activities that
4 potentially fell within the Section 1201(a)(1)
5 prohibition, then that conclusion would bear on the
6 discharge of your rule making responsibility.
7 MS. PETERS: Anyone else? If not, I
8 want to thank our witnesses for their testimony. We
9 really did appreciate it. And, to all of the rest
10 of you, we will resume around 2:30. If you know any
11 of the witnesses who are not and you can tell them
12 that, for this afternoon, it will be around 2:30.
13 It depends on my emergency that I have to resolve.
14 Thank you very much.
15 (Whereupon, the hearing was recessed at
16 12:30 p.m. to reconvene at 2:30 p.m. this same day.)
17
18
19
20
21
22
23
24
25
26
PAGE 87
1
2
3
4
PAGE 88
1 A-F-T-E-R-N-O-O-N S-E-S-S-I-O-N
2 2:30 p.m.
3 MR. CARSON: Unfortunately, the Register
4 is not going to be able to be with us, at least
5 initially. She is still attending to some other
6 urgent business that she needs to attend to. We're
7 hoping we'll see her before we say good-bye to you
8 today.
9 I'm not going to repeat the Register's
10 introductory remarks. For those of you on the panel
11 who were not here this morning, I've provided copies
12 for you so you have an understanding of the basic
13 ground rules are. I'm sure you already do, but if
14 there is any doubt in your mind have a quick read of
15 this thing.
16 And, I guess we'll get started with the
17 panel. This afternoon -- actually do we have
18 everyone here? I see three people up there and I
19 thought we had four --
20 MR. KUPFERSCHMID: David is here. We
21 can start and --
22 MR. CARSON: Okay.
23 MR. KASUNIC: David Mirchin is doing the
24 slide show.
25 MR. CARSON: He's number one on our
26 list, although I don't -- do we have any agreement
PAGE 89
1 among the people as to who is going to go first? If
2 not, I'll just follow the order on the list, which
3 means we're waiting for David.
4 MR. KUPFERSCHMID: We were just thinking
5 we would go from, I guess, right to left.
6 MR. CARSON: Okay. Let's just give
7 David a moment to come and catch his breath.
8 (Whereupon, at 12:35 p.m. a recess until
9 12:36 p.m.)
10 MR. CARSON: This afternoon's panel is
11 first of all David Mirchin from SilverPlatter, Keith
12 Kupferschmid from the Software and Information
13 Industry Association, Joseph Montoro, Spectrum
14 Software and Chris Mohr representing the American
15 Business Press and a number of others.
16 And, you decided you would go from which
17 side to which side?
18 MR. KUPFERSCHMID: That way.
19 MS. DOUGLASS: Okay. Then, Chris, I
20 guess you're on.
21 MR. MOHR: Good afternoon. My name is
22 Chris Mohr. I'm an attorney in private practice
23 with the firm of Meyer and Klipper. I am here today
24 on behalf of the McGraw-Hill Companies, American
25 Business Press, the Newspaper Association of
26 American, Phillips International, the National
PAGE 90
1 Association of Securities Dealers, Reed Elsevier,
2 SilverPlatter Information, Skinder Strauss
3 Associates, the Software and Information Industry
4 Association and the Thompson Corporation.
5 These vastly different organizations,
6 some of whom have filed statements and are
7 testifying on their own account, all have one thing
8 in common. They create and commercial market
9 databases. As database producers we, therefore,
10 feel compelled to respond to attempts by certain
11 university and library associations to have
12 databases excluded from the scope of Section
13 1201(a)(1)(A)'s protection.
14 More specifically, the argument that
15 databases should be excluded under the, in our view,
16 flawed rubrics of thin copyright works and fair use
17 works seems at odds with the legal frameworks set
18 forth in the NOI and the statute. We also believe
19 that such a determination would be ill-advised as a
20 matter of public policy.
21 The world of databases is not a
22 homogenous one. Databases vary greatly in their
23 subject matter, methods of organization and the
24 manner in which protected expression is integrated
25 within them. Databases also feed the needs of a
26 variety of organizations in both the non-profit and
PAGE 91
1 for profit markets. The companies I represent today
2 from small businesses to much larger corporations
3 collectively invest billions in the creation and
4 distribution of material in nearly every field of
5 human endeavor.
6 The Internet has conferred tremendous
7 benefits on the database business. It has made
8 distribution of these products possible on a scale
9 and in a manner never imagined just 10 years ago.
10 In all likelihood increases in band width and
11 processing power will make today's technologies seem
12 hopelessly slow and archaic just a decade hence.
13 The other side of this equation is, as you well
14 know, that digital technology enables unscrupulous
15 users to make perfect and instantaneously
16 distributed copies of a work at a fraction of the
17 cost of creation.
18 Congress, therefore, concluded that the
19 threat caused by unauthorized access to such works
20 would result in publishers refusing to fully embrace
21 digital media, unless legal protection from
22 circumvention existed. Congress enacted the DMCA to
23 "facilitate the robust development and world-wide
24 expansion of electronic commerce communication,
25 research development and education by making digital
26 networks safe places to discriminate and exploit
PAGE 92
1 copyrighted material."
2 Our position is more fully set forth in
3 the reply comment we filed and I will not go through
4 all of it here. In short, nothing we have seen in
5 either the initial round or the reply comments leads
6 us to believe that an exemption is warranted for any
7 class of works, much less one made up of databases.
8 The reasons for this belief are as follows.
9 First, as a general matter, as both the
10 legislative history and the notice of inquiry make
11 very clear, proponents of an accepted class of works
12 bear the burden of demonstrating the necessity of a
13 delay in Section 1201(a)(1)'s effective date. This
14 point is set forth extensively in the NOI and
15 legislative history and it sets the framework for
16 the Librarian's determination. Nonetheless, many
17 comments have viewed the burden to be on copyright
18 owners. This view is simply mistaken, but so
19 strongly espoused that we felt it necessary to
20 repeat it here.
21 The burden extends to several areas.
22 First, the proponent of an exemption must properly
23 identify a class of works. The legislative history
24 instructs us that this category must be carefully
25 drawn in order to preserve the incentives Congress
26 intended the statute to foster. Despite the
PAGE 93
1 enormous diversity of the database, the association
2 comments have attempted to lump these products
3 together under the umbrellas of fair use works and
4 thin copyright works. This approach, in our view,
5 has several fatal defects.
6 First, one cannot blindly lump databases
7 into one category. The argument rests on the
8 premise of because certain works of authorship,
9 specifically scientific and academic databases or
10 databases, generally contain large amounts of
11 information and unprotected expression they should
12 be exempt from the access control provision. This
13 argument is boundless. Every copyrighted work
14 contains material to which the copyright does not
15 adhere and by the nature of the regime itself every
16 work is potentially subject to fair use.
17 What Professor Jaszi's comments this
18 morning seemed to me did was to attempt to create a
19 reverse presumption that because a work is subject
20 to fair use -- because a work is potentially subject
21 to fair use, that that work should be excluded.
22 This effectively eviscerates the protection and
23 repeals Section 1201(a)(1)(A). We believe that that
24 answers essentially a question that was not asked in
25 this proceeding.
26 With respect to the definitions of works
PAGE 94
1 proffered by the AAU, the universities offer no
2 method by which thin works may be distinguished from
3 their thicker counterparts. Not all databases
4 contain a thin protection or material. Some contain
5 great originality and section coordination and
6 arrangement. Others contain works composed entirely
7 of the "thicker" copyright in photograph, new
8 stories or paintings. We believe that such a
9 distinctions would be unworkable in practice.
10 Moreover, if one look looks at the list
11 in the comment, the list ends with the word et
12 cetera, which is not, in our view, a good way to
13 develop a narrow and focused class.
14 Third, there seemed to be an assertion
15 that because a non-profit user makes use of the
16 materials it is entitled to an exemption from the
17 prohibition against unauthorized access. We did not
18 find support in the language of the legislative
19 history that a class of user can define a class of
20 works. The flaws in the class of user distinction
21 become more apparent when one considers that
22 database producers, such as SilverPlatter, market
23 their products primarily to the non-profit
24 educational communities.
25 The adoption of that kind of framework
26 effectively penalizes certain publishers that derive
PAGE 95
1 most of their revenue from these markets. Given
2 Congress's stated desire to make content richly
3 available in all markets, such a result seems to run
4 contrary to legislative intent.
5 Finally, we believe that adoption of the
6 AAU's recommendations with respect to either fair
7 use or thin works would have disastrous practical
8 effects for database producers. Database publishers
9 typically invest tremendous effort into producing
10 products that are thorough, accurate and
11 comprehensive. The current scope of copy right
12 protection and compilations has caused several
13 entities to modify their business plans and they
14 question the manner in which these products and
15 services are offered making investment in future
16 products increasingly risky. 0
17 infringer from eviscerating the fruits of their
18 labor is the originality surrounding selection
19 coordination and arrangement. Once the egg shell
20 has shattered the yolk is free for the taking.
21 Protection from unauthorized circumvention of
22 the technological measure preserves incentives and
23 current law to create and distribute these valuable
24 products.
25 In short, neither the university
26 comments, the library comments or, in fact, any
PAGE 96
1 other comments have identified a class of work with
2 the precision that Congress asked for. This is an
3 element of the case that must be proved and it is
4 one that has not been proven.
5 The next point of proof borne by
6 proponents of an exception is that of showing
7 substantial adverse effects. The universities in
8 advocating that databases as a class be exempted
9 have not documented a single instance of an adverse
10 effect. With respect to the libraries, we believe
11 that the adverse effects listed simply do not meet
12 the test of causation.
13 Now, the legislative history here is
14 instructive and as it was said earlier this morning,
15 that adverse effects means more than inconvenience
16 or individual antidotal cases. Moreover, in this
17 situation the proponents of an exemption must show
18 actual "extraordinary circumstances," that's from
19 the manager's report, where non-infringing use is
20 likely to be curtailed.
21 The libraries' claims, for example, that
22 many databases include technological measures that
23 limit the number of users. If five users are
24 allowed access, number six cannot make any fair use.
25 The same is true if one of them gets there after the
26 library closes. These so-called adverse effects
PAGE 97
1 cataloged revolve around inconvenience, not around
2 any chilling effect of the prohibition of non-
3 infringing use.
4 Finally, the proponent of an exemption
5 must show that on balance the positive effects of
6 the statute are outweighed -- rather, that the
7 negative effects are outweighed by the positive
8 effects. Now, we've heard a lot about potential
9 negative effects that might occur and statements by
10 the librarians that bad things might happen and
11 maybe some of those concerns are justified and maybe
12 they're not. But, we heard nothing about the
13 positive effects that security measures have
14 allowed.
15 For example, password controls and more
16 sophisticated technology enabled Reed Elsevier to
17 embark on its academic universe program. And, they
18 submitted a separate comment to the library
19 detailing the way that that program works. Secure
20 web access has enabled Lexis and West Law to be
21 available from any computer on the plant, via the
22 World Wide Web. Ninety percent of daily newspapers
23 have online web sites and lots of them don't charge
24 subscription fees.
25 Maps, another class singled out by the
26 universities for exemption are routinely available
PAGE 98
1 on numerous web sites. We don't see on balance the
2 substantial adverse effects referenced in the
3 legislative history, which warrant exercise of the
4 discretion to issue an exemption.
5 For these reasons and those more fully
6 laid out in reply, we believe that the record does
7 not support an exemption specifically for databases
8 of any kind. Thank you for the opportunity to
9 present our views and I'll be happy to answer any
10 questions that you might have.
11 MR. CARSON: Thank you. Next is Mr.
12 Montoro, I believe. No, Mr. Mirchin.
13 MR. MIRCHIN: Okay. Thanks. So, here
14 you are in the middle of the afternoon, the trough
15 point of energy in the day and you're sort of
16 wondering, you know, should I join Marybeth in her
17 important meeting. I can hear this on the audio feed
18 later, why do I need to stay here? So, I just
19 wanted to tell you that I was recently at a talk and
20 there were fewer people than here, but fortunately I
21 was able to get a picture of them and I thought I
22 would share that with you.
23 Now, I can't say that actually if you
24 were to stay here you would have the same benefit as
25 these nine people, but hopefully what you will get
26 out this afternoon's presentation is an overview of
PAGE 99
1 SilverPlatter Information, what our company does,
2 what access controls we use, how those access
3 controls benefit the users, how we would be harmed
4 by the suggestion to exempt so-called ``thin
5 copyright'' works and ``fair use works'' and finally
6 just to say that these two classes, as well as the
7 other classes that were mentioned this morning, are
8 not really the definable classes of works that I see
9 as part of this rule making.
10 First of all, SilverPlatter. What do we
11 do? We're a small but globally oriented electronic
12 publishing company. We were founded in 1985. We
13 employ about 175 people, mostly software developers,
14 librarians, database designers, a lawyer. Our main
15 office is in Norwood, Massachusetts. As I say there
16 are many charming New England villages and then
17 there is Norwood. And, then we have offices in
18 London, Amsterdam, Berlin, Paris, Hong Kong and
19 Sidney and I work in Norwood. Okay. So, there you
20 have it.
21 We publish about 250 reference databases
22 in electronic format. Typically they're abstracts
23 of articles and full text of articles in areas like
24 medicine, humanities, sciences. An example,
25 actually, is AgeLine mentioned this morning by Betty
26 Landesman, published by the AARP. They licensed it
PAGE 100
1 to us and then we do some database formatting. We
2 have a consistent look and feel for all 250
3 databases. You can search across all of them and we
4 do the marketing and the search and retrieval
5 software.
6 Some of the other organizations that we
7 would license from would be professional societies
8 like the American Psychological Association. It has
9 PsycLit, which is a database of about maybe 1,000
10 psychology journals. We also license from private
11 companies like Bell and Howell Information and
12 Learning. They publish a product called
13 Dissertation Abstracts. It's a database containing
14 abstracts and full text of dissertations and
15 master's theses. Our primary markets are university
16 libraries and medical libraries. Basically we're
17 marketing to libraries. Our smaller markets are
18 public libraries and then research libraries inside
19 corporations like biotech companies, pharmaceutical
20 companies, engineering companies. And, most of our
21 sales are outside North America.
22 So, that's what our company does. Now,
23 I want to tell you about what access controls we
24 use. Our databases are accessible via the Internet
25 or servers that are located at the customers'
26 premises. We have networking software we call
PAGE 101
1 SilverPlatter's ERL, electronic reference library,
2 software. The customers choose how they want the
3 information. Do they want it over the Net or do
4 they want it typically on a CD ROM, which they can
5 then load onto the servers? We've used access
6 controls since our earliest days, since 1985. So,
7 if you get the product on the ERL servers or the
8 Internet our networking software allows access both
9 from local area networks, as well as wide area
10 networks. The access controls that we use are IP
11 filtering, Internet protocol filtering, as well as
12 password and user name.
13 The customer receives a Database
14 Authorization Sheet, and I'll just show you what one
15 looks like, which indicates the numbers of
16 simultaneous users that they can have. So, this is
17 an example where we have a license ID number and
18 then we have the customer name, okay. And, then we
19 have a particular server ID. It could actually be
20 many servers at a university. And, then we give the
21 maximum number of users that they can have access
22 the database. Ninety-nine is our unlimited use
23 number.
24 I should add here that the price per
25 user drops dramatically as you increase the amount
26 of access. So, if you have one simultaneous user
PAGE 102
1 that can access the database at one time it is a
2 certain price and as you go up to 2-4, 5-8, 9-12 the
3 price per user goes down dramatically. The Database
4 Authorization Sheet says whether you are allowed to
5 install it to a hard drive and then finally there is
6 an expire date when you can us it until and then
7 there is an authorization code. And, that code,
8 that 40477182. It's a unique code for each
9 university and it's generated randomly. They have to
10 enter that into the servers and that indicates which
11 databases they can have access to and the maximum
12 number of simultaneous users simultaneous users who
13 can access the database.
14 So, that's the access controls that we
15 use. To insure access from a particular university,
16 we use Internet protocol filtering, so it says all
17 of these people who are accessing are coming from
18 harvard.edu or stateuniversity.edu, but the problem
19 with that is that it can be very restrictive,
20 because the faculty members who are on sabbatical,
21 there are students who are accessing it from their
22 AOL account, so we say, fine. This allows them to
23 access it from anywhere in the world, because if
24 they are not coming from harvard.edu, then they just
25 type in user name and password and they can access
26 it from anywhere.
PAGE 103
1 So, the advantage here is that the
2 technology controls actually are allowing us to
3 provide much broader availability of the information
4 than was formerly available.
5 So, what are some of the benefits of
6 these technological protection measures? Because,
7 one of the things that Congress instructed the
8 Librarian in this rule making is, I know there is
9 all this negative stuff out there, but maybe there
10 are some positives. So, I just want to tell you --
11 go over the five habits of highly effect access
12 control technologies.
13 First, this allows us to meet the varied
14 needs of different institutions. For some large
15 institutions, research institutions, they can have
16 an unlimited level of access or they can have a
17 specified level of access. And institutions in fact
18 are all over the board. We have a lot that have
19 unlimited -- have chosen unlimited access, some 5-8
20 users, et cetera. And, some down to one
21 simultaneous user.
22 The fees are fixed for a year for any of
23 those bands, so there is no additional pay-per-view
24 or pay-for-use. You decide, okay, I want five to
25 eight paid simultaneous users. That's it. You
26 don't pay any more the rest of the year. We're not
PAGE 104
1 charging for any of the additional users.
2 Secondly, we don't dictate at all what
3 use is made of the information. It is really access
4 control. When they get access to it they can do
5 whatever they're permitted to do by law. We're not
6 controlling subsequent use, how they're using it.
7 We're not controlling fair use.
8 Thirdly, this allows remote access and
9 more convenient access to information. So, if
10 you're sailing you can then get access to our data.
11 Unlike some of the comments made in the -- the
12 initial written comments, we don't tether it to a
13 specific computer in the library. We really free it
14 up to allow the information to be accessed from
15 anywhere.
16 Fourth is we, contrary to what some of
17 the statements made, we're not exacerbating the
18 digital divide. By limiting unauthorized use we
19 actually allow anyone who walks into a library or
20 uses the library to use it. So, for example, if
21 that person wanted to go into Sarah Wiant's library
22 at Washington and Lee, they could do that. We're
23 just saying you can only have five paid simultaneous
24 users. You decide, do you want to have walk-ins
25 allowed to use the database? That's up to you.
26 You, the library, are allowed to do that. Our
PAGE 105
1 technology certainly is not preventing that.
2 And, finally, I think what is important
3 to realize is that the access controls are not new.
4 I mean, these are not new things -- I think it was
5 the American Library Association that said that --
6 they worried that there was going to be a wide range
7 of controls just now being deployed by content
8 providers. We have priced our products on the
9 concurrent model for 15 years. We've used our
10 current access control technologies, essentially
11 unchanged, for the last six years. This is a model
12 that's really been worked out with the libraries and
13 I would urge that it doesn't make too much sense to
14 be meddling with this scheme, which has actually
15 worked out pretty well.
16 The other thing that I would raise is
17 that what's here in today's rule making is a three
18 year time window. We're not saying what will happen
19 forever. There were a lot of comments this morning
20 saying, like Peter Jaszi was saying, the worst is
21 yet to come with access control or you haven't seen
22 the most aggressive use of access controls, but you
23 will starting October 28th of the year 2000. And,
24 sorry, this was the most aggressive guy that I could
25 think of, James Carville, if you remember him.
26 In other words these are words from this
PAGE 106
1 morning, as you know, we're on the brink of bad
2 access control. We're on the threshold of it. Betty
3 Landesman mentioned that we haven't seen the impact
4 yet. And, we talked about the E-book example. I
5 guess what I see is that in terms of actual real
6 harm that we see today, I'm not saying that there
7 are no examples that you can find, but it's not
8 really there. And, in fact, even the panel this
9 morning said we think it's going to get worse. I
10 would say, let's see what happens, because in the
11 past there have been also a lot of these things that
12 they talked about, which is geographic location of
13 the information tethered to computers. That all was
14 true five and 10 years ago, but the publishers
15 responded. So, if you looked at a license
16 agreement, for example, SilverPlatter five and 10
17 years ago, you actually would see lots of geographic
18 boundaries, but over the course of time our market
19 was saying, well, wait a second, we don't want that
20 anymore. We want remote learning. We want
21 professors on sabbaticals to have access to it and,
22 in fact, the licenses and the technology in sync
23 have allowed that that wider access.
24 So, I would say, even in the E-book
25 example there is not -- really E-books are not being
26 used all that much. Let's see what happens and
PAGE 107
1 let's see how the market accepts the idea if you
2 can't pass it along to someone. I am sure that
3 there will be other competitors that say, you know,
4 my book you can pass along to someone else.
5 And, fourth, I would just like to say in
6 the written comments that the Association of
7 American of Universities stated that it should be
8 permissible to circumvent access for thin copyright
9 works. So, what they called thin copyright works
10 are works like scholarly journals law reviews,
11 databases primarily valuable for the information
12 they contain. I guess I would just like to say, for
13 a company like SilverPlatter, in our self-interest,
14 all of our SilverPlatter products are databases.
15 That is all we sell. We license these from database
16 producers who have been slaving away in dimly lit
17 basements since 1911, putting together their
18 databases. All we're trying to do is have some
19 access protection and someone comes along and tries
20 to circumvent that access protection they scream,
21 but can they help it? No, because based on the
22 comments here, even if a customer pays for only one
23 simultaneous access, it will be permissible to
24 circumvent and permit unlimited use.
25 What I would say is that Silver Platter
26 was successful in our business model because we
PAGE 108
1 specifically moved away from the idea that every
2 single minute the clock was ticking in the
3 background for every use. I mean, what we really
4 wanted to have, and as we've done, it's a model of
5 unlimited use within a certain access level. So, my
6 conclusion would be that the access controls really
7 increase the availability of copyrighted materials.
8 If we couldn't use access controls, that's exactly
9 what would lead to pay-per-view because we couldn't
10 enforce the concurrent user model. We couldn't
11 enforce even our other access controls -- or I
12 should say not that we couldn't enforce, but that it
13 would be permissible to circumvent the Internet
14 protocol filtering, the user name. Then we wouldn't
15 be able to say to a university, you can have
16 unlimited access, because they could let in anyone
17 from any other university in the world. From an
18 economic point of view, it simply doesn't work. I
19 mean, we cannot have -- instead of having our 15,000
20 subscriptions out there, to have one university
21 having a single subscription and letting everyone
22 else in for free. It's just not going to work
23 practically in the market.
24 And, the losers are not just
25 SilverPlatter, its employees, its investors, but
26 also the customers. I mean the whole thing we're
PAGE 109
1 about here is providing good, high quality databases
2 for our users. The other problem is there is not
3 really a narrow and focused sub-set. It's impossible
4 to distinguish who's who here. What's a thin
5 copyright work, what's a thick copyright work? You
6 can't really tell the disguises from what's beneath
7 it.
8 It's not something in the Copyright
9 Office that you check off. Oh, hey, I'm registering
10 a thin copyright work. And, then there are other
11 aspects here that are really problematic in this
12 supposed class of works, which is why should
13 scholarly journals not be protected? To me that
14 seems like the stuff you do want to protect rather
15 than the checkouts, the stuff that you see on the
16 check-out line of the supermarket.
17 Finally, the ``fair use works'' has the
18 exact same problem. This is not a class of works.
19 This is a defense to infringement. Our entire
20 market would be considered fair use works. It's the
21 scientific, educational and research community and
22 it would undermine a company's viability, like
23 SilverPlatter.
24 So, in conclusion the final answer is
25 that we feel that the people, the proponents have
26 not met their burden of proof of saying why there
PAGE 110
1 should be an exemption, why there should be a class
2 of works. There is no basis for permitting
3 circumvention for scholarly journals or other
4 databases under the rubric of fair use works or thin
5 copyright works. These works contain a significant
6 amount of copyrighted material and so I just say
7 there is really no defined class that I see yet --
8 I've seen some defined classes. I don't think those
9 make sense, like fair use works, and I haven't seen
10 any other defined classes that I think are
11 appropriate for this rule making. And, finally,
12 there are benefits from access controls that
13 facilitates remote access, allows sharing of
14 resources between universities and consortia, permit
15 smaller universities and medical schools to pay a
16 small amount and larger universities to pay a larger
17 amount and we do, in fact, permit walk-ins.
18 Thank you very much.
19 MR. CARSON: Thank you. We'll move
20 across the isle to Mr. Montoro.
21 MR. MONTORO: Thank you, sir. My name
22 is Joe Montoro, and my presentation is not as
23 colorful, unfortunately, but I will try to get in
24 some reasons why I think there should be some
25 exemptions to the copyright, 1201(a).
26 Thank you for inviting me to come before
PAGE 111
1 you today. As a software developer and a U.S.
2 citizen it is a great honor for me to take part in
3 our legislative process and I deeply appreciate the
4 opportunity.
5 While do not officially represent any
6 trade groups or organizations, I do represent the
7 views of numerous individuals, businesses and
8 universities that have expressed first hand problems
9 with various technological means. I will also echo
10 the opinions of several well-known authors such as
11 Ed Foster of InfoWorld Magazine, who has written
12 about computer and technological issues for over 20
13 years, as well as Jim Seymour of PC Week Magazine.
14 Reading the DMCA and its legislative
15 history has raised some areas of concern. As per
16 the summary of the DMCA from Copyright Office,
17 Section 1201 divides technological measures into two
18 categories: measures that prevent unauthorized
19 access to a copyrighted work and measures that
20 prevent unauthorized copying of a copyrighted work.
21 Copying is used in this context as a shorthand for
22 the exercise of any of the exclusive rights of an
23 author under Section 106 of the Copyright Act.
24 Consequently a technological measure that prevents
25 unauthorized distribution or public performance of a
26 work would fall in this second category.
PAGE 112
1 Making or selling devices or services
2 that are used to circumvent either category of
3 technology measure is prohibited in certain
4 circumstances described below. As to the act of
5 circumvention in itself, prohibition prohibits
6 circumventing in the first category of technical
7 measures, but not the second. And, where I actually
8 have a problem is trying to draw that line in what
9 is access and what is copy control.
10 Distinction was employed to assure the
11 public will have the continued ability to make fair
12 use of copyrighted works. Since copying of a work
13 may be a fair use under appropriate circumstances,
14 Section 1201 does not prohibit the act of
15 circumventing a technological measure that prevents
16 copying. By contrast, since the Fair Use Doctrine
17 is not a defense to the act of gaining unauthorized
18 access to a work, the act of circumventing a
19 technological measure in order to gain access
20 prohibited.
21 My understanding of Congress's intent in
22 establishing the prohibition on circumvention of
23 access control technologies is to primarily to
24 prevent cable and satellite theft and to control
25 illegal access to software, primarily over the
26 Internet. An example would be downloading a trial
PAGE 113
1 program such as Norton's Anti-Virum, that requires a
2 password or a serial number to make it a registered
3 version. Once the program has been purchased or
4 registered, the access control technology is no
5 longer in effect. The consumer is no longer
6 burdened by the protection measure and can run and
7 make a backup of the program. Someone selling or
8 distributing a serial number that would illegally
9 create an authorized version of that trial program
10 -- or excuse me, create an illegally authorized
11 version of that trial program, would violate this
12 act. With Section 1201 implemented in this manner,
13 I have no objection whatsoever.
14 What does concern me, however, is when
15 one purchases a software program or DVD, becomes an
16 authorized user and the access control measure
17 remains in effect. These are similar to Mr. Jaszi's
18 comments this morning. In a case such as this will
19 the lawful user be able to make a fair use of this
20 work?
21 The issue before us is whether persons
22 who are users of a copyrighted work are or are
23 likely to be adversely effected in their ability to
24 make a non-infringing use of copyrighted access
25 controlled works and the answer to that question is
26 yes.
PAGE 114
1 In the world of computer software there
2 exists something called the hardware lock or dongle.
3 It is a small device that goes on the back of an IBM
4 compatible printer port and prevents unauthorized
5 copying or distribution of the software. As a class
6 of work, these fall under category two and it is not
7 a violation to circumvent these devices under this
8 act.
9 It is important to distinguish and make
10 clear that the large majority of these devices are
11 used simply to prevent unauthorized copying or
12 distribution. We are starting to see, however, some
13 devices that control the number of uses, the number
14 of times you can use a program. Here a user has
15 paid up front for a specific number of uses. A good
16 example might be the software that this Copyright
17 Office used to scan our 364 letters in response to
18 this hearing. The software Adobe Acrobat Capture is
19 priced from $699.00 and includes the ability to scan
20 20,000 pages. It comes with a dongle or hardware
21 lock. Under ideal conditions, when 20,000 page have
22 been scanned the device no longer functions and you
23 may purchase the additional pages or buy an
24 unlimited page version for $7,000.00.
25 A typical user has received
26 authorization to access this work, but this device
PAGE 115
1 also prevents one from making unauthorized copies or
2 the distribution of software. As implemented it
3 prevents the authorized user from making a
4 functional archival copy of the program because of
5 the usage control device. This would be a fair use
6 under previous copyright law, but not under Section
7 1201(a).
8 The intent of Congress and the courts
9 was clear before 1201(a) that if anything happens to
10 the original software program the archival copy can
11 be used and the user can continue with the quiet use
12 and enjoyment of the program. With these hardware
13 lock devices that is not possible and these works
14 cannot be preserved. If the lock were damaged and
15 could not be replaced, then the user would not be
16 able to use the remaining pages that they had
17 already paid for.
18 The same problem exists with DVDs,
19 unfortunately because of the Content Scrambling
20 System. A consumer that lawfully acquired a DVD is
21 not able to make a backup of that media. Media and
22 hardware can be damaged and I would ask who has not
23 come across a bad floppy disk, a chewed up
24 videotape, a scratched record or a damaged compact
25 disk?
26 I am not suggesting that the rights of
PAGE 116
1 manufacturers be ignored. I am a software
2 developer. I hold six registered copyrights with
3 this office, a manufacturer and of course a
4 consumer. If a software manufacturer wants to
5 protect their software with a hardware lock, so be
6 it, providing the authorized user has a way to use
7 that software in an unencumbered, non-infringing way
8 once they have made a purchase. Circumvention or
9 replacement technologies should be made available to
10 them providing they can provide the proper
11 authentication.
12 The reason an exemption for fair us is
13 needed, on October 12, 1998 in a statement by the
14 President, Mr. Clinton said "This bill will extend
15 intellectual protection into the digital era while
16 preserving fair use." Fair use policies are
17 intended to protect the public interest and I hope
18 that during my testimony I can show you why they are
19 needed in this case.
20 There are numerous problems a consumer
21 faces when using these devices. While most
22 manufacturers will replace a damaged lock device, as
23 a general rule they will not simply replace lost or
24 stolen lock devices. They require the end user to
25 purchase another program at whatever the retail cost
26 may be. This could be devastating to a small
PAGE 117
1 business, a library or educational facility.
2 Harvard locked software programs can be
3 very expensive. A program called 3D Studio by
4 AutoDesk cost $3,000.00. Another called Mastercam
5 by CNC Software is over $13,000.00. Surfcam by
6 Surfware is priced around $22,000.00. Others are
7 priced even higher. Some companies are honest and
8 up front about their replacement policy, such as 3D
9 Studio. To replace a hardware lock that is lost or
10 stolen or destroyed you need to purchase another
11 copy of 3D Studio Max. Another company, Cadlink
12 Technology said if the security device is lost,
13 stolen or damaged by whatever means, a replacement
14 must be obtained from Cadlink before the software
15 will function properly. Cadlink can charge the full
16 current list price of the original software to
17 replace the security device. Others make no mention
18 of it in their documentation or their web sites.
19 Can you imagine Ford Motor Company telling a
20 consumer, Ford will not replace a lost or stolen
21 ignition key and that the consumer must purchase a
22 new automobile at the regular price? Would anyone
23 tolerate this, but yet we do here in the computer
24 industry.
25 Computer theft and damage is a very real
26 concern and if the authorized user of a program has
PAGE 118
1 a hardware lock device on the computer they are
2 simply out of luck. According to statistic 26
3 percent of all notebook reported losses in units
4 were due to theft in 1998. An estimated 1.5 million
5 computers were stolen, damaged or otherwise
6 destroyed during 1998. An estimated $2.3 billion in
7 computer equipment was lost, or stolen or damaged by
8 accidents, power surges, natural disasters and other
9 mishaps during 1998 and the numbers were even higher
10 for 1999. In a library or university setting there
11 are many people who have access to these devices and
12 it is these institutions that are the least likely
13 to be able to afford purchasing another program.
14 Technology changes very fast. What is
15 current today my be old technology tomorrow. It
16 wasn't too long ago that we all used 5\274 inch floppy
17 disks. Even Time Warner concedes "many technical
18 protections are still in their infancy." It is
19 reasonable then to believe that just as in the past
20 today's media and technical protections will become
21 obsolete. Examples of this include vinyl records,
22 8-track tapes, laser disks, DIVX, which was Circuit
23 City's failed attempt at the pay-per-use CVD, and 5\274
24 inch floppies. High Definition Television is also
25 on the way. The current DVDs are not of HDTV
26 quality. Is there any guarantee that future DVD
PAGE 119
1 players will be able to pay today's movies?
2 Considering that just two weeks ago the FCC began
3 proceedings to resolve compatibility and copy
4 protection issues involving digital television
5 receivers and cable systems, it is not very likely.
6 The National Library of Medicine has
7 experienced problems where they have computer
8 programs on obsolete disk formats that incorporate
9 technological measures that do not permit the
10 information to be restored or archived to other
11 platforms. They are forced to maintain obsolete
12 operating systems and equipment to access these
13 materials. This is not a cost effective way to
14 enter the 21st century.
15 All of the concern regarding the year
16 2000 and its effect on computer systems and software
17 was brought about because of the real possibilities
18 of network and computer shutdowns and errors in
19 software. Jason Mahler, vice president and general
20 counsel of the Computer and Communications Industry
21 Association whose members include AT&T, Bell
22 Atlantic, Intuit, Oracle, Verisign and Yahoo said
23 "the year 2000 problem demonstrated software
24 programs of all types can require error
25 correction.... Once one has lawfully obtained a copy
26 of a software program, he or she should certainly
PAGE 120
1 have the opportunity to repair that program so that
2 it functions properly."
3 Many of these devices have a limited
4 life span since they use a small proprietary built
5 in battery. When the battery dies, the hardware
6 lock becomes non-functional and once again a program
7 that costs thousands of dollars is worthless if the
8 device cannot be replaced.
9 Technology companies are constantly
10 being bought and sold and some simply are forced to
11 go out of business. If a company goes out of
12 business, there is no one to support the authorized
13 customer when a hardware lock is damaged and needs
14 to be replaced. Here a perfectly good software
15 program becomes worthless without the hardware lock
16 and the consumer suffers. Steven Jacobs, president
17 of Individuals with Disabilities at National Cash
18 Register Corporation used dongled software from
19 Microsystems Software. Every member of that
20 division works on a volunteer basis and the software
21 evaluates the abilities of children with
22 disabilities. Microsystems was sold to the Learning
23 Company, who no longer supports these products and
24 Mr. Jacobs wrote "one of our dongles is broken
25 leaving us out in the cold." Another letter says
26 "We are a manufacturer that has a program called
PAGE 121
1 "NSEE verify" that was sold through
2 Microcompatibles. It has a black dongle block. The
3 company was sold to Preditor Software and Preditor
4 has discontinued the software product and does not
5 support it anymore. WE have had hardware lock
6 burnouts in the past and almost could not get a
7 replacement last year."
8 In another example once a company has
9 been acquired their software program is generally
10 phased out. After a period of time, the program and
11 lock device is no longer supported because companies
12 either want the customer to upgrade to the newer
13 combined product or they are using a different
14 hardware lock device. So, even though the software
15 they purchased for $6,000 some five years ago still
16 serves all their needs, they are being forced to
17 upgrade at nearly twice the cost. This says nothing
18 of the costs associated with training employees to
19 use the new computer program. One example is a
20 gentleman named Bill Hendershot. He won an Emmy
21 Award for his creation of time base correctors in
22 the video industry. He quotes "he had a hardware
23 lock fail..... and we had no success in dealing with
24 the company to replace it. They tried to find
25 another old key, but none would work. Our PADS
26 systems has now been down for over 30 days." I
PAGE 122
1 don't think we can ask consumers to tolerate this
2 kind of problem.
3 Some, such as the Software and
4 Information Industry Association have suggested "at
5 first blush.....these examples appear to justify the
6 creation of an exemption to Section 1201(a)." The
7 SIIA goes on to say that other options make this
8 exception unnecessary. The first option they list
9 is "if consumers are concerned about having access
10 to code due to irreparable damage to the access
11 control technology or the demise of the copyright
12 owners' business, they an use trusted 3rd parties to
13 escrow the software code in confidence to ensure
14 future access to the content if such events occur."
15 That was reply comment number 59. The mistake made
16 here is simple and obvious; consumers do not have
17 access to the source code written by a developer.
18 Further, developers are not required to escrow their
19 materials with any 3rd party and even if they were,
20 it does not overcome the issues of fair use,
21 interoperability, theft and security testing and
22 research. The second solution the SIIA offers is
23 "to get the copyright owner or the manufacturer of
24 the access-control technology to "fix" the
25 technology." The problem with this logic is
26 twofold. First, the question was what do we do when
PAGE 123
1 the copyright holder is out of business or the
2 product is no longer being supported? Second,
3 because of the secure nature of the technological
4 measure, only the developer of the software, not the
5 manufacturer of the hardware lock, can program the
6 dongle or fix the application. The reason is
7 because these devices have unique information
8 embedded in them from the developer and there are
9 also unique codes that are embedded in the software
10 program that only the developer would know.
11 Jim Seymour in PC Week Magazine wrote
12 about another reason we cannot depend on the
13 manufacturers to fix a problem. PC Week Labs does
14 product evaluations and AutoDesk sent in their
15 software 3D Studio, an animation program, to be
16 evaluated. The techs couldn't get the program to
17 run with the security device, so AutoDesk sent
18 another one, but it wouldn't run either. They tried
19 another computer with the same results. When they
20 contacted AutoDesk again they were told, "Buy
21 another computer." Reminiscent of earlier testimony
22 today, Mr. Seymour goes on to say that "dongle
23 makers and the software vendors that support them
24 argue that dongles are essentially trouble fee, no
25 burden at all to honest users." He goes on to say,
26 "Ahh, if only that were so.....dongles cause a world
PAGE 124
1 of trouble for those unlucky enough to buy
2 applications using them."
3 When AutoDesk's customer satisfaction
4 director said to Ed Foster of InfoWorld magazine,
5 AutoDesk has found dongle type hardware locks more
6 annoying than authorization code schemes, Mr. Foster
7 received a wave of dongle hell letters from readers
8 that had similar experiences. One reader from an
9 academic institution reports that out of 16
10 computers the school had recently upgraded from
11 AutoCAD version 13 to version 14, 5 were put out of
12 action when the dongles failed. Many readers report
13 having to put up with multiple dongles, a situation
14 that can lead to trouble. Another reader wrote
15 "some vendors always say, "If you have multiple
16 dongles be sure to put ours on first or else the
17 computer might hang or crash"."
18 The availability for use of copyrighted
19 works. The availability of dongle-protected works
20 for use by libraries, companies and universities is
21 also diminishing. Some refuse to use software that
22 is protected in this manager. The loss to our
23 students is that schools will be forced to select
24 alternative software that may not be the most common
25 or the best in the field. For example, AutoCAD is
26 the largest and most used CAD program and often
PAGE 125
1 comes with a hardware lock. It is used to design
2 anything from houses to gears. By schools selecting
3 another program that is not dongled, the students
4 really don't learn on the platform they need to, in
5 order to prepare them for entry into the job market.
6 I have some quotes here from people.
7 I'm going to try to move through these.
8 Incompatibility problems. While the
9 manufacturers of these devices claim that they are
10 trouble-free and transparent to the user, they are
11 anything but. On the companies' web sites are many
12 examples of incompatibilities and conflicts. Often
13 months will go by before a solution is found, in
14 some cases there is no solution. Incompatibility
15 problems and hardware conflicts exist, hardware
16 conflicts such as not being compatible with new
17 Hewlett Packard printers, where the lock device
18 cannot support bi-directional printing, the computer
19 is too fast, so it can't find the lock device, too
20 many lock devices on the parallel port, so the lock
21 device can't be located, the lock device won't work
22 with a certain chip set, the driver is not
23 compatible with a new service pack release of
24 Windows NT.
25 One fear many people have is that not
26 only expensive high end applications will use these
PAGE 126
1 technologies, but everyday software and even kid
2 games will come with these devices. Unfortunately,
3 these people are correct. In a document by Hewlett
4 Packard, "My Interactive Pooh," that's Winnie the
5 Pooh, comes with a dongle. This device causes
6 incompatibilities with Hewlett Packard DeskJet
7 printers. They've gone on to say that they actually
8 found problems with the dongles and that you should
9 contact the Mattel Company to try to get your
10 product replaced.
11 I don't think I'm exaggerating when I
12 say that we are inviting a technological nightmare
13 and soon will see a protection device on every piece
14 of software we use. In anther HP document two-way
15 communication cannot be established with a printer
16 using a dongle. HP's solution is to simply remove
17 the dongle. So, now you can print, but cannot run
18 your program. And, sometimes a hardware lock driver
19 will be updated by a new application, cause the
20 older application not to work.
21 It's the consumer that suffers while
22 they wait for some software genius to figure out
23 what the problem is and/or if it can be fixed. One
24 of the lock companies commissioned a study to use
25 the findings as a sales tool against competitors.
26 The results was the Rainbow's documentation and
PAGE 127
1 frequently asked questions on their web site
2 specifically mentioned security key daisy-chaining
3 constraints and hardware revision incompatibilities
4 among selected security keys. And, we've got
5 documents under here to back that up.
6 The interoperability is another issue.
7 In an age where interoperability between computer
8 platforms is more and more important these devices
9 force us to take a giant step backwards. One
10 customer was referred to me a software manufacturer,
11 PADS, who sent the customer a demo of their product
12 which he like enough to purchase. After the
13 customer purchased it he was surprised to find the
14 full working version came with a parallel port
15 hardware lock device. The customer called PADS to
16 inform them that a Macintosh computer does not have
17 a parallel port in which to put the lock and that he
18 was running IBM compatible software on his Macintosh
19 through a program called Soft Windows. Rather than
20 lose a $4,500.00 sale, the software manufacturer
21 referred him to my company to purchase one of my
22 programs.
23 Several companies view a cross platform
24 solution as important. Insignia software has
25 developed Soft Windows for the Power Mac which
26 allows you to run your Windows and DOS programs.
PAGE 128
1 They've also develop soft-UNIX as well.
2 The same statements are true for DVD.
3 Being able to view or operate a DVD on other
4 platforms such as Linux is also at issue. The
5 Justice Department has spent a considerable amount
6 of time and money investigating MicroSoft and one of
7 the reasons given by the Assistant Attorney General
8 of the United States for splitting up MicroSoft was
9 that they would not make their office software
10 available on a competing platform like Linux.
11 There are physical problems as well.
12 for a university, library or other facility that
13 must run some of its software on a server or a
14 laptop, there is a physical problem. When a
15 business such as Durham Electric Company in North
16 Carolina has 6 dongles hanging off the back of a
17 computer, imagine the number that a university or
18 library has or will have in making works available
19 to the public.
20 Today's laptops are as powerful as any
21 desktop computer and more people than ever before
22 either commute or take their laptops on the road.
23 What is it like having 5 to 10 inches of hardware
24 sticking out of your laptop? And, if I may, I would
25 like to show you. These are 6 dongles that the man
26 in North Carolina had to put up with to use his
PAGE 129
1 computer and let's take a look and see what it looks
2 like on the back of a laptop. Okay. That will give
3 us some idea of what we're looking at.
4 Now a library or an educational facility
5 that has multiple programs, that has multiple
6 software that they're trying to instruct with or
7 databases -- I'm not sure about the databases,
8 Chris, but this is a real concern. This is only 6
9 from one electric company, yet alone a library or
10 any other kind of educational facility will just go
11 further and further. And, it gets to the point
12 where it is ridiculous.
13 In addition, these companies also say
14 that the lock device, as you've heard earlier, needs
15 to be first. So, okay, when I want to run this one
16 program, this one needs to be the first one, but
17 when I want to run the second program I've got to go
18 over here and it's just a physical nightmare.
19 Does the act of circumvention effect the
20 value or price of copyrighted works? Not paying for
21 software you obtained illegally wrong and it
22 deprives the developer the fruits of their labor,
23 but we need to distinguish this act from an
24 authorized user gaining access to a product they are
25 authorized to use and have already paid for. Here
26 the only negative impart would be to the company or
PAGE 130
1 individual if they were not able to use what they
2 paid for. The effect of circumvention for
3 authorized users will increase the sale of DVDs and
4 software, where previously unsupported platforms are
5 now available and those institutions that have
6 policies against using dongled software will once
7 again become users.
8 No one wants to see computer software
9 pirated, however, there are other ways to protect
10 software besides hardware lock devices, such as pass
11 codes, software license files where the program
12 checks for the presence of the file and the software
13 protection systems that permit functional archival
14 backups and fair use. Perhaps we should follow the
15 lead of a company called Unisoft of Milford,
16 Connecticut. Unisoft is a software developer that
17 used dongles on their software from day one. When
18 the manufacturer of the dongle discontinued the
19 model, they considered other brands. Their
20 conclusion, "A determined pirate can make an
21 unauthorized copy of software and make it run
22 regardless of dongles. To a legitimate user,
23 however, a dongle is an inconvenience at best, and
24 at worst makes completely legal software completely
25 useless." ".....we are more interested in
26 satisfying our legitimate customers than foiling
PAGE 131
1 pirates.....we will, however, aggressively
2 investigate and prosecute any and all illegal
3 copying of our software, but will not do it at the
4 expense of our honest customers." They now usa a
5 simple license file and pay a referral fee to the
6 customers if the customer gives a copy of the
7 software to someone and they end up purchasing.
8 They value their support, their subscriptions and
9 feel that that adds significant value to their
10 software and that it is reasonably priced. "Most of
11 all, we don't think that our customers would try to
12 cheat us."
13 In my conversation yesterday with Mr.
14 Lareau, the vice president of sales at Unisoft, he
15 confirmed that customer satisfaction has increased
16 and there are less headaches for the company and was
17 not able to identify any decrease by using this
18 policy, any decrease in sales.
19 An independent study that was done in
20 Canada bears this out. Of those polled 48 percent
21 had an unfavorable opinion of hardware lock software
22 and 52 percent felt that there was a need for a
23 replacement device.
24 I'd like to stress again that most of
25 these devices are primarily used to control
26 unauthorized copying or distribution, however, the
PAGE 132
1 rights of the consumer to use and enjoy software in
2 a trouble-free manner must be of foremost concern,
3 whether the technological measure controls access or
4 controls unauthorized copying or distribution. The
5 computer industry needs an alternative to hardware
6 lock devices and the problems they pose and should
7 let the marketplace determine what is effective and
8 what is not. As Mr. Leahy stated in the conference
9 report on the DMCA dated October 8, 1998, this
10 legislation should not establish or be interpreted
11 as establishing a precedent for Congress to
12 legislate specific standards or specific
13 technologies to be used as technological protection
14 measures, particularly with respect to computers and
15 software. Generally, technology develops best and
16 most rapidly in response to marketplace forces.
17 To date we have only looked at this
18 issue tin terms of black and white, either access
19 control technology is circumvented or it is not. I
20 submit we should look at it in a third way. We
21 should let the industry develop legitimate ways to
22 replace troublesome access control and/or copy
23 prevention technologies if one can do so and
24 preserve the rights of the copyright holder.
25 Through my software development I have
26 been able to create a one for one hardware lock
PAGE 133
1 replacement that is done in software, that has all
2 the functionality of the original device, yet cannot
3 be copied unless you are authorized to do so.
4 Through this product I have been able to overcome
5 every objection raised regarding software, including
6 interoperability, compatibility and fair use while
7 still protecting the rights of the copyright holder.
8 I would respectfully submit that an
9 exemption be made so that once a person has lawfully
10 acquired access to a work subsequent uses of that
11 work will be exempt under fair use. At the very
12 least this should be applied to computer software
13 and DVDs where media can be damaged and there will
14 always be an issue of compatibility and
15 interoperability.
16 Lastly, it would be a waste of resources
17 for any institution, agency or user that my qualify
18 under current or future exemptions to bypass or
19 replace a technological measure themselves when this
20 is not their field of expertise, therefore,
21 companies should be permitted to advertise and
22 provide these services providing certain criteria
23 that you decide is met.
24 Once again, thank you for the
25 opportunity to appear before you and I look forward
26 to answering any questions you may have. Thank yo.
PAGE 134
1 MR. CARSON: Thank you, Mr. Montoro.
2 Mr. Kupferschmid.
3 MR. KUPFERSCHMID: Good afternoon. I'm
4 Keith Kupferschmid, Intellectual Property Counsel
5 for the Software & Information Industry Association.
6 I appreciate the opportunity to testify here today
7 and would like to thank the Copyright Office and the
8 panelists in particular for both conducting these
9 hearings and for creating what I consider to be a
10 very open and efficient rule making process.
11 By way of background, I would like to
12 talk a little bit about SIIA, which is the principle
13 trade association of the software and information
14 industry. We represent about 1,400 high tech
15 companies that develop and market software,
16 electronic content for business, for education, for
17 consumers, for Internet, and for entertainment
18 purposes. Our membership is quite diverse. In
19 fact, especially in relation to other trade
20 associations, we have information companies as our
21 members, such as Reed Elsevier, the West Group, the
22 McGraw-Hill Companies. We have software companies,
23 such as Oracle and Sun, hardware companies like
24 Hewlett Packard and Apple and many e-commerce
25 companies, such as America OnLine and Cybersource.
26 So, as you can see, just from this diverse interest,
PAGE 135
1 diverse membership that we have, our members
2 represent a wide range of business and consumer
3 interests.
4 Our members create and develop new and
5 valuable access control technologies for use by
6 others. They also use access control technologies
7 to protect their proprietary content. And they
8 purchase and license software and information
9 products and other content and services that utilize
10 these access control technologies. So, our members
11 basically span the gambit of all the effected
12 interests that might be at issue here in this rule
13 making process.
14 Consequently, our members are extremely
15 interested in the issues relating to the protection
16 and use of access control technologies and the
17 relationship between fair use of copyrighted content
18 as it relates to the anti-circumvention provisions
19 in Section 1201(a)(1) of the Digital Millennium
20 Copyright Act. Because of the many interests of the
21 SIIA members and because of time constraints, I will
22 divide my testimony into two separate sections. The
23 first section of my testimony will focus on general
24 concerns of SIIA and its membership and in the
25 second half I will attempt to address four specific
26 concerns raised by the comments that were filed.
PAGE 136
1 Because of the time constraints, however, I will
2 just summarize our comments and hopefully expand
3 upon them with some of the questions that are asked.
4 A more detailed discussion of our comments can be
5 found in our written reply comments and in any post-
6 hearing comments that we may file and based on some
7 of the comments I've heard today, I think we
8 probably will be filing some post-hearing comments.
9 In sum, we concluded that none of the
10 initial or reply comments submitted, either
11 individually or taken as a whole, provide sufficient
12 concrete evidence to justify the creation of an
13 exemption to Section 1201(a)(1).
14 Let me go into my three general
15 comments. First and foremost, several commentators
16 contend that the burden of persuading the Copyright
17 Office in the rule making is on proponents of the
18 prohibition. I am not going to go into a detailed
19 discussion of the statute, of the legislative
20 history or the notice of inquiry itself, but if you
21 review those sources or review our written
22 statements or the other written statements of those
23 in the copyright industry, you will see that each of
24 these documents, each of these three sources clearly
25 establish that number one, the burden of persuading
26 the Copyright Office that a certain class of work
PAGE 137
1 should be exempt from the prohibition in Section
2 1201(a)(1) is on those who seek to establish an
3 exemption, not on the proponents of the prohibition.
4 And, then number two, these resources
5 also establish that the burden of persuasion is
6 extremely, extremely high and based on what we have
7 seen the proponents of an exemption have not met
8 this burden at all. Those who seek to establish an
9 exemption must prove that the prohibition has a
10 substantial adverse effect on non-infringing use and
11 those words, each of them, have a very significant
12 meaning. In this regard mere inconvenience or
13 individual cases are insufficient evidence.
14 Proponents of an exemption rather must come forth
15 with evidence that establishes distinct, verifiable
16 and measurable impacts. None of the proponents
17 provide this evidence.
18 Those who seek to establish an exemption
19 must also establish a causal connection between
20 alleged substantial adverse effects and the
21 prohibition in Section 1201(a)(1). If the adverse
22 effects are caused by factors other than Section
23 1201(a)(1), then the Copyright Office should
24 disregard such effects and I think this mandate is
25 especially important given that the prohibition in
26 Section 1201(a)(1) has not yet come into effect. We
PAGE 138
1 fail to see how any of the alleged existing adverse
2 impacts complained of in the comments can be caused
3 by a provision that has not come into effect yet.
4 In fact, because the prohibition is yet
5 to become effective, to the extent that any alleged
6 existing adverse impacts complained of in the
7 comments are bona fide, I'm not saying they are, but
8 to the extent that they are, they must have been
9 caused by some factor other than the prohibition
10 itself, because the prohibition is not in effect.
11 It is SIIA's view that none of the
12 comments submitted to the Copyright Office comes
13 even remotely close to meeting the high burden
14 established by the law. The comments fail to
15 provide distinct, verifiable and measurable impacts
16 and none of the comments establish a causal
17 connection between the supposed adverse impacts and
18 the prohibition.
19 My second general comment deals with, I
20 guess as the Library Association has suggested, the
21 right of fair access. We consider this to be
22 somewhat a twisted view of the fair use exception,
23 one that is sweeping enough to allow hackers to
24 circumvent access control technologies in order to
25 make fair use of protected copyrighted content.
26 Now, in thinking about what my comments
PAGE 139
1 were going to be here today, I did consider
2 characterizing the views of these commentators as
3 perhaps overly broad, but I thought that that might
4 actually suggest that this narrow interpretation has
5 some basis in law and fact. I want to be absolutely
6 clear, it does not. In fact, Congress clearly
7 considered these issues and rejected the Library
8 Association's interpretation on its face. Fair use
9 is an affirmative defense. As such it is a
10 privilege, not a right. The fair use privilege has
11 never been used to allow a party to get access to
12 copyrighted work where the party does not otherwise
13 have the authority to access that work.
14 In fact, because the fair use privilege
15 is an equitable defense to infringement, case law
16 has shown that no fair use defense may be had where
17 access to the copyrighted work has been gained
18 illegally. SIIA supports the Fair Use Doctrine. We
19 recognize the important societal good, as well as
20 the public and private benefit that results from the
21 doctrine. Now, while SIIA supports the Fair Use
22 Doctrine, we cannot support the twisted
23 interpretation supported by the libraries and the
24 other commentators.
25 My third and final general comment
26 relates to the general lack of understanding of the
PAGE 140
1 scope of the rule making and the prohibition itself.
2 In particular, several commentators failed to
3 distinguish between the protections afforded by
4 Section 1201(b) and 1201(a)(2), which are not
5 subject to this rule making and those in Section
6 1201(a)(1) which are. Several commentators also
7 incorrectly believe that Section 1201(a)(1) covered
8 public domain and other non-copyrightable materials
9 when, in fact, it does not.
10 And, finally, several commentators
11 failed to consider the existing exemptions in
12 Section 1201, such as those that exist for security
13 testing and for reverse engineering. Given the
14 limited time today, I will merely direct you to our
15 formal written comments submitted by SIIA for a
16 detailed explanation of why these arguments are
17 either incorrect or immaterial to this rule making.
18 With that let me move on to my specific
19 comments. The first one I would like to deal with
20 is the American Association of Universities and to a
21 lesser extent the Library Association's
22 recommendation that an exemption for so-called thin
23 copyrighted works and fair use works be created.
24 There are several problems with this so-called
25 classes of works, I guess if you can call them that.
26 First, these so-called classes are
PAGE 141
1 extremely broad and indefinite. As a result they do
2 not comply with the congressional mandate that the
3 class of works be a sub-set of the categories of
4 works in Section 102 and be narrow and focused. So,
5 it fails on two accounts.
6 Second, the AAU provides no means to
7 distinguish between works that qualify as thin
8 copyrighted works or fair use works and works that
9 do not qualify. In fact, as Mr. Mohr mentioned,
10 they even have an et cetera thrown in there in case
11 they may have forgotten to throw anything in there.
12 The AAU also failed to provide even a
13 single example of how its members would be adversely
14 effected in their ability to make non-infringing
15 uses of these works. Presumably, if the works are
16 causing a substantial adverse effect, they should be
17 able to come up with at least one example, but
18 nevertheless the comments, as far as I can see,
19 don't have one example in them.
20 And, finally, with regard to this
21 categorization of thin copyrighted works and fair
22 use works, I should mention that adoption of a thin
23 copyrighted work exemption or a fair use work
24 exemption would clearly adversely effect the
25 availability of these works. Because databases and
26 other fact intensive works are accorded a lesser
PAGE 142
1 level of protection by the courts as compared to
2 other types of copyrighted works, the owners of
3 these works are more reliant on technological
4 protections to protect against illegal uses of these
5 works. As the result, exempting so-called thin
6 copyrighted works from Section 1201(a)(1) would
7 lessen the incentive for owners of these works to
8 distribute them to the public.
9 The second set of specific comments I
10 would like to discuss is related to concurrent
11 access. The Library Association suggests an
12 exemption is appropriate to ensure that their users
13 are able to concurrently access the works they
14 license. To the extent that there is any adverse
15 impact resulting from a work being protected by
16 technology that controls the number of concurrent
17 users, this impact is insignificant and more than
18 offset by the numerous benefits libraries and their
19 users have gained from having greater access and
20 less expensive access to these works.
21 While technological measures may impose
22 certain limitations on concurrent access, these
23 limitations pale in comparison to those libraries
24 and their users have been and are currently subject
25 to with regard to non-electronic copies of works.
26 In particular, the suggestion that there should be
PAGE 143
1 an exemption for concurrent access is of great,
2 great concern to SIIA's software and information
3 company members. Many of these companies routinely
4 license their copyrighted products to consumers in a
5 way that limit the number of concurrent users.
6 Consumers enjoy this licensing option
7 and find it beneficial to their business model. If
8 people were permitted to circumvent the technologies
9 that allow such limitations on concurrent access,
10 the concurrent access licensing system would quickly
11 become ineffective and obsolete. In its place
12 software and information companies would be forced
13 to use other licensing alternatives, perhaps to the
14 detriment of consumers of these products.
15 The third set of specific comments I
16 would like to discuss relate to preservation and
17 archiving. Some comments suggested an exemption be
18 created for preservation and archiving when a user
19 has initial lawful access to a work. This
20 recommendation is based on a perceived concern that
21 access control technology will prevent libraries
22 from archiving or preserving works protected by such
23 measures. If an entity has initial lawful access to
24 a work and desires to make a copy of it for
25 preservation or archival purposes, to the extent it
26 is prevented from making such a copy, it will be a
PAGE 144
1 result of a copy control technology protected under
2 Section 1201(b), not access control technology
3 protected under 1201(a).
4 Thus, the preservation and archival
5 issue is actually one that falls outside the scope
6 of this rule making. If, however, the Copyright
7 Office should conclude that the preservation and
8 archiving issue falls within the scope of this rule
9 making, we assert that the commentators have failed
10 to provide the requisite evidence to establish that
11 an archival and preservation exemption to Section
12 1201(a)(1) is necessary.
13 In this regard we point out that one of
14 the focuses of this rule making is whether copyright
15 content is available to persons who desire to make
16 non-infringing uses of such content. Accordingly,
17 if copies of a work are available for non-infringing
18 uses through a license, then there would be no
19 reason whatsoever to create a statutory exemption to
20 Section 1201(a)(1). Because none of the
21 commentators have demonstrated an inability to
22 license the materials and, in fact, the commentators
23 say the opposite, they are able to license the
24 materials, we find no justification for a so-called
25 preservation or archival exemption.
26 My final set of specific comments relate
PAGE 145
1 to hardware locks. Several commentators recommended
2 that exemptions be created to address situations
3 where a company goes out of business and there is no
4 one to support the authorized customer when a
5 hardware lock is damaged, it is lost or is stolen.
6 The first point I should make in response to these
7 comments, and I cannot make this emphatically
8 enough, is that it is extremely rare, I mean
9 extremely rare for someone to lose a hardware lock.
10 The reason for this is because the locks and the
11 software that it protects are just too darn
12 expensive and too valuable. Therefore, people who
13 own these locks and software products take the
14 utmost care in protecting the software and the locks
15 against theft, against loss and against damage.
16 In the unlikely situation where a
17 hardware lock is damaged, lost or stolen, there are
18 real life solutions to these problems that are
19 easily implemented without the need to establish an
20 exemption. The best of these solutions is for the
21 consumer to protect his or her investment in the
22 software by taking out an insurance policy. The
23 software that is protected by the hardware locks is
24 not inexpensive. Contrary to Mr. Montoro's comments
25 and with apologies to my colleagues in the recording
26 industry, this software is not a scratch record. It
PAGE 146
1 is a lot more expensive than a scratch record. It
2 is a lot more valuable than a scratch record. A
3 single program can cost as much as $22,000.00 or
4 even more. It is, therefore, extremely reasonable
5 for any business or university to protect its
6 investment in such valuable items, just as it does
7 with other property that has similar significant
8 value.
9 In addition, there are numerous third
10 party companies that offer to escrow software and
11 hardware locks, in confidence. As Mr. Montoro
12 mentioned, this is not required. But if companies
13 are really concerned about these products being lost
14 or stolen or destroyed, then this is something they
15 should negotiate, in their license agreement.
16 Another option is to get the copyright
17 owner or manager of the access control technology to
18 fix the damaged technologies. In talking to our
19 members, in virtually all cases, if we're talking
20 about damaged technology and I think Mr. Montoro
21 from his comments does not dispute this, if we're
22 talking about damaged technology, then they will in
23 fact, in most cases, fix that technology. In the
24 rare instance that a fix is necessary, this is often
25 the solution that software companies and their
26 customers come to.
PAGE 147
1 Now, where the copyright owner is out of
2 business, I guess I thought the question is to, well
3 then who has standing in this 1201(a)(1) to begin
4 with? So, I just throw that out for consideration.
5 And, just touching upon very quickly
6 some of Mr. Montoro's other comments, he mentioned
7 things about printer problems with printer
8 complaints and other interoperability problems. I'm
9 not exactly sure what this has to do with defining a
10 class of works or trying to create an exemption
11 under 1201(a)(1). Another thing I think is worth
12 mentioning is that regardless of Section 1201(a)(1),
13 these companies will continue to use dongles, so
14 they will continue to have these problems if in fact
15 these problems are accurately reflected and I have
16 significant doubts that they are, of course.
17 And, then also, something also worth
18 mentioning how it is explicitly considered whether
19 to make any of the rights or the exceptions
20 technology specific. And, they said no, that's not
21 a wise way to go. Congress decided to not make any
22 of these an exemption or a right specific to a
23 certain type of technology, realizing that
24 technology is going to change over time.
25 So, anyway, that's the extent of my
26 comments. I would like to again thank the Copyright
PAGE 148
1 Office and the panel for giving me the opportunity
2 to testify here today. And, I will be pleased to
3 answer any questions the panel might have, either
4 here today or following this hearing, in writing
5 later. Thank you very much.
6 MR. CARSON: Thank you. And, once
7 again, thanks to everybody. We'll now move on to
8 questions and we'll start with Rachel Goslins.
9 MS. GOSLINS: Hi. For those of you that
10 were here this morning my questions are going to
11 follow a similar path and start at the practical end
12 and move to the esoteric. But, actually to begin I
13 would just like to ask a fairly simple question,
14 just for my own personal edification while anybody
15 on the panel can answer them. I'm particularly
16 interested in the answers with the software experts
17 here.
18 And, that is, how easy is it to
19 circumvent these kinds of access control protections
20 that you're talking about? Mr. Mirchin, you
21 detailed technologies that I'm not anywhere near
22 understanding, but they seem to be pretty
23 sophisticated authentication systems. And, what I
24 would need to circumvent that? And, what kind of
25 time and resources will I need, just a computer
26 program and I guess that goes for you as well, Mr.
PAGE 149
1 Montoro, with the famous dongle, sort of what does
2 it take to get around them?
3 MR. MIRCHIN: The authorization code, we
4 don't know of any examples where people are
5 circumventing it, which doesn't mean that they're
6 not. Our technology people tell me that that's
7 pretty secure. Using a password I would say is sort
8 of the other end of the spectrum in that typically
9 it's administered by the institution itself. Our
10 view is that it's in the institution's interest,
11 because they have limitations on server capacity, to
12 typically limit it to people who are actually
13 somehow related to the institution. So, we're
14 really relying on them. You know, that really is
15 something that is much easier to circumvent.
16 MS. GOSLINS: And, how do you decide
17 when you use one or when you use the other?
18 MR. MIRCHIN: Oh, we actually use both
19 in every instance. The using of a password is a way
20 if people are not coming from
21 universityofmaryland.edu. It allows those people
22 who are not local to be able to access the database.
23 If you're coming from the institution, you don't
24 need to use a password. So, it's another way of
25 access in, really, rather than preventing anyone
26 from getting access.
PAGE 150
1 MR. MONTORO: I can only speak as to the
2 dongle incident. There is a couple of ways to do
3 that and one way to circumvent the dongle is to
4 modify the actual application itself, where you
5 would go in and when the dongle or when the program
6 goes to look for the lock device, you would modify
7 the program portion of that so it no longer looks
8 for the lock device. That's certainly is,
9 obviously, illegal to do, because you're violating
10 the owner's copyright when you enter that program.
11 The other way is a different way. It's
12 what we've been able to do by no circumventing, but
13 replacing. And, the way I do that is my writing
14 software that actually knows the contents of what's
15 inside one of these devices. It responds in the
16 appropriate manner when the software program looks
17 for the actual device and instead it finds our
18 software and that's all we've been able to not
19 circumvent, but replace the technology. The
20 technology that I have also then relocks itself back
21 to the computer, which protects the copyright
22 holder. So, it can't be redistributed and you're
23 not going to see 500 copies of that same program
24 out.
25 MR. MIRCHIN: May I say one other thing
26 on using the password? We also monitor logs to see
PAGE 151
1 some general usage from a particular community. So,
2 to the extent that we were getting a sense that that
3 -- that the user name and password was not
4 effectively controlling it to a particular
5 community, there are a lot of things that we could
6 do. For example, change the user name and password
7 and require that to be redistributed. So, there are
8 things that we could do if we felt that it was being
9 abused.
10 MS. GOSLINS: I guess what I'm trying to
11 get at is we're heard a lot about how adversely
12 effected the date base industry would be if we
13 crafted any kind of an exemption to the prohibition
14 access control that effected databases and one thing
15 I would like to talk about in a second is how that
16 would be different from the last six years of
17 experience that your company has had in using access
18 control protections, it seems pretty effectively.
19 Even were we to exempt all databases from the access
20 control protection, you're still better off then you
21 were before the passage of the DMCA because you have
22 the prohibition on the manufacturer and marketing
23 design of devices and it sounds like, from what
24 you're talking about, that when you have
25 sophisticated access control protections, you're
26 going to need some kind of software, some kind of
PAGE 152
1 device to circumvent -- anyway, so I guess what I
2 would like to hear you talk a little bit about is
3 how much value added the conduct prohibition really
4 gives you if a librarian is not really going to be
5 able to get around your user ID authentication
6 servicer.
7 MR. MIRCHIN: I guess a couple of things
8 come to mind. One is I would say that probably
9 applies not just to us, but applies actually to
10 every copyright owner. Congress decided that if a
11 copyright owner decided that they wanted to use
12 access control technology, then they should be
13 allowed to do it and that it should generally be
14 prohibited to circumvent it. So our situation is
15 actually no different than anyone else's. And, I
16 would say though, my sense is in terms of how it
17 would be interpreted, which is when you start
18 getting carved out, when everybody gets protected
19 except you, I have to believe that the way the
20 courts might interpret it would be, in a way to be
21 detrimental to database owners or my sense is that
22 the court could very well find ways to carve out and
23 say, well, it's clear that the Copyright Office in
24 this rule making felt that you were entitled to a
25 lower level of protection. So, I am a little
26 worried about what would happen.
PAGE 153
1 MR. MOHR: I'd like to add to that a
2 little bit. I mean, I think also there is a
3 practical concern and that what has changed in the
4 last several years is the ability of competitors.
5 If a database compiler invests a lot of money
6 verifying information and being sure it's accurate,
7 if someone can get in -- if someone can get access
8 to that, the remedies for using the material that
9 was invested in are very, very scant. And, that is
10 certainly a concern of the companies that I
11 represent.
12 MS. GOSLINS: Ah hah. That brings me to
13 my next more esoteric question. Many of you and
14 your member countries or the entities that you
15 represent have been active in the progression of the
16 database bills before Congress. And, as I'm sure
17 you're all aware there is no bill yet. So, my
18 concern or a concern that has been raised in a
19 number of the comments, is it by prohibiting
20 circumvention of access controls on largely
21 factually based databases, which have a sort of
22 thin, I know, I apologize for using the word, I know
23 it's touchy, selection and arrangement copyright.
24 We are, in fact, creating de facto database
25 protection. This is not going to be true for a lot
26 of databases that have copyrightable content in
PAGE 154
1 them, but I believe as, I think it was you, Keith,
2 talked about databases that are not as protected in
3 the courts, precisely because of this issue and then
4 have to rely more severely, more strongly on
5 technological protections.
6 I'm not saying that someone who puts a
7 tremendous amount of effort in selecting and
8 arranging factual or public domain material is not
9 entitled to a return on his or her investment or to
10 some kind of protection under the law. My concern
11 is that the pretext of protecting the copyright and
12 that's the appropriate vehicle to do that.
13 Congressional intent is always a bit obscure. It's
14 hard to know what Congress intended in any case and
15 especially sometimes in the context of 1201, but I'm
16 pretty sure that they didn't intend to circumvent
17 the process of the database bill. So, I would be
18 just interested in hearing your responses to that.
19 MR. KUPFERSCHMID: Let me -- first I
20 think my colleagues here also to respond, but let me
21 first also actually -- I didn't get a chance to
22 respond to your previous question, which is that,
23 you know, we're dealing with big new technology like
24 the Internet and so distribution mechanisms and
25 business models are going to be changing over time,
26 along with technology. So, while we have, our
PAGE 155
1 companies have certainly used these technologies in
2 the past, perhaps they have not used them as they do
3 today and certainly not as they're going to use them
4 in the future. You know, big things certainly now
5 days in the software industries if you go on to find
6 these warez web sites and they will tell you exactly
7 how to crack -- how to get behind some technology or
8 crack some code or something like that. So, that's
9 exactly why we need 1201(a)(1) for that type of
10 thing, where maybe someone is not providing a device
11 or a service.
12 To get to the second part or the next
13 question or the question that is actually on the
14 floor right now, is, if I understand your question
15 correctly, I think if you look toward what the
16 Congress's intent was, Congress's intent is --
17 especially when it comes to the exemptions and
18 exceptions, you see right there on the papers what
19 they thought the reasonable exceptions or the
20 appropriate exceptions that are put in, such as
21 reverse engineering and security testing and things
22 like that and the fact that, you know, this was
23 never discussed or proposed that there be sort of --
24 I guess, certain works such as, I could say so-
25 called thin copyrighted works or fair use works, be
26 exempted at that time and if it was, I'm sure it
PAGE 156
1 would have been shot down for the fact that how do
2 you -- as I mentioned in my comments and I think
3 others mentioned in their comments, well, how do you
4 define those works? I mean, I have no idea how to
5 define those works. I read the comments; I still
6 have no clue how to define those works.
7 And, as I mentioned earlier, the burden
8 of proof is on the proponents of an exemption to
9 define how these works, you know, what these classes
10 of works are. So, I'm still sort of waiting to hear
11 from them as to what exactly -- what works we're
12 talking -- we're actually talking about.
13 I think -- I hope that sort of gets to
14 your question -- the answer to your question.
15 MR. CARSON: Would you be more
16 comfortable if we just exempted databases? It's easy
17 to define.
18 MR. KUPFERSCHMID: No. But, then as I
19 think David mentioned in a previous question, what
20 you do is you're creating this negative implication,
21 certainly, that databases are not, you know, worthy
22 of copyright protection, not worthy of the
23 protection the other words are afforded. What's
24 next, are you going to limit the term of protection
25 for databases to five years perhaps? I don't want
26 to give you any ideas, but, I mean, what path do we
PAGE 157
1 go in 20 years?
2 MS. GOSLINS: Do you --
3 MR. MOHR: Yes, I would like to add a
4 couple of things. I mean, part of the concern is
5 really that 1201(a)(1) only applies if there is an
6 access control and there are people who still, for
7 example, put out printed compilations. That
8 increases improvements in scanning technology, for
9 example. It's very easy to scan that in and put it
10 on a CD ROM. I mean one of the, you know, best
11 known cases in this area arose from someone simply
12 keying a compilation, extracting the facts and
13 keying the compilation into a computer and then
14 selling it on CD ROM.
15 Secondly, it does not, in that same
16 vein, it does not protect people who adopt a
17 broadcast model and sell advertising on a web site.
18 That has nothing to do with 1201(a)(1).
19 MR. MIRCHIN: And, I would just add that
20 I actually don't think that it would expand or
21 contract the amount of protection that databases
22 would have. The same standard that's been applied
23 to this string of database cases would apply here,
24 which is is it a copyrightable work? If it is, you
25 can have access control technology which can't be
26 circumvented. Is it not copyrightable, not part of
PAGE 158
1 1201 and, therefore, it's not illegal to circumvent?
2 So, I think actually I don't see that as --
3 MS. GOSLINS: That brings up an
4 interesting question that we've talked about. How
5 should we think about a user who circumvents access
6 control protections to a database sole to get access
7 to a public domain work? How do we think about
8 that? Is that not to get access to selection and
9 arrangement, but just wants the text of Feist?
10 MR. MONTORO: They're not a lawful user,
11 correct?
12 MS. GOSLINS: What?
13 MR. MONTORO: They are not a lawful
14 user?
15 MS. GOSLINS: What do you mean by lawful
16 user?
17 MR. MONTORO: They're gaining access
18 improperly, not --
19 MS. GOSLINS: They're circumventing
20 access control protections to a primarily factual
21 database, but that has a layer of copyright
22 protection, but just to get access to the text of
23 the public domain document.
24 MR. KUPFERSCHMID: I guess, and I'll let
25 Chris take over in a second, from a technology
26 standpoint, I don't know how this is done. I mean,
PAGE 159
1 if you're accessing the database you're accessing
2 the database. And, especially if you don't have
3 access in it, how do you determine beforehand what
4 is the government information and what isn't?
5 MS. GOSLINS: Well, in the case of a
6 legal database you could tell what is -- you know,
7 what are the head notes and what are the actual text
8 of the case.
9 MR. KUPFERSCHMID: And, I guess what I'm
10 saying is I -- just knowing how our members at least
11 or many of our members distribute their content or
12 databases, I just don't know how you would make that
13 division, how you would draw that line between -- I
14 mean, I understand how you can see what is the
15 government information and what is not, but when
16 you're talking about the access control measures,
17 how do you circumvent and not get to the protected
18 coordination, selection and arrangement? Because
19 you are circumventing to get to that. They're
20 intertwined. You can't separate one from the other.
21 MR. MOHR: And, I would also -- I mean,
22 I'd also like to add to add to this. I mean, that
23 this information -- I mean, the sort of common sense
24 answer that comes, is why does this person need
25 FEIST from us when it's, you know, readily available
26 through a host of other sources?
PAGE 160
1 MS. GOSLINS: Maybe that was a bad
2 example. We heard one of the librarians this
3 morning talk about tax decision, I guess, that are
4 not available online, that are not available
5 anywhere else, even though they are public domain
6 documents, other than through a research database
7 that the library had access to.
8 MR. MOHR: Well, if it's, I mean, if
9 it's government information I don't know exactly --
10 I mean I'm not a tax lawyer. I don't know how one
11 goes about finding such things, but I do know that
12 there are obligations on the government to disclose
13 certain things and to make certain things available.
14 If a private service aggregates that material has
15 value to it and makes it more convenient to users to
16 get it, I would think that conditions under which
17 those materials are made available are a licensing
18 issue between the library and the publishing company
19 and have nothing whatsoever to do with 1201(a).
20 MR. MIRCHIN: I would say also there is
21 a real practical economic impact. I mean, some of
22 our largest databases are arguably government domain
23 databases, Medline put out by the National Library
24 of Medicine. The reason I say arguably is, the
25 question is, are those abstracts that are written in
26 that database by the publishers or individual
PAGE 161
1 authors? It is not clear to me if that is public
2 domain or not, but let's take other examples by the
3 Government Printing Office.
4 But, if you allowed databases that
5 contain government information, public domain
6 information, to be circumvented, then really you're
7 saying that companies can't have any pricing model
8 at all based on usage. So, for our situation we
9 would be in a situation where we can't say, okay,
10 you, University of Michigan, a large user, you might
11 want to have unlimited use and you, small Western
12 University might want to just have a single
13 simultaneous user. If we can't have different
14 pricing, then we're going to have to do something in
15 the middle, essentially. So, the result is not
16 going to be beneficial to users. I see that's not
17 very convincing to you.
18 MS. GOSLINS: I think it's a great
19 argument for database protection. I'm just not sure
20 it's a great argument for using a few copyrightable
21 elements of a factual database that's concerned
22 primarily with public domain information, to
23 consider that a work protected under this title, the
24 title being the act. Then again, nobody is saying
25 you can't use your own -- do whatever pricing law
26 you want and employ vigorous access control
PAGE 162
1 protections that nobody -- that it wouldn't be in
2 anybody's time or interest to break. It would be
3 more cost effective to pay your licensing fees.
4 And, we're talking about a very narrow value added
5 here to the arsenal that you already have as a
6 database producer of protecting your investment.
7 MR. MIRCHIN: Then you're saying that
8 the selection coordination and arrangement that
9 compilation copyright is the class of works that's
10 not protected. I mean, that's sort of what you're
11 saying. And, that really -- to me flies -- you
12 know, Congress could have said, compilation
13 copyrights are the class, is one of those
14 exemptions. They didn't do that.
15 MR. CARSON: We could say that.
16 MS. GOSLINS: Sorry. Christopher,
17 comment?
18 MR. MOHR: Yes. I just wanted to add
19 one more point. I mean, again, I come back to the
20 burden of proof. I mean, there is no evidence that
21 this is necessary. I mean the -- you've heard
22 testimony today that it's, you know, basically about
23 inconvenience. And, that, as the legislative
24 history stated, does not warrant the issuance of an
25 exemption, now at least in our view.
26 MS. GOSLINS: I see we're losing a lot
PAGE 163
1 of audience members, so I'm going to turn over the
2 mic so it will be more entertaining.
3 MR. KASUNIC: Okay. Following up on some
4 of those same comments then, in fear of losing more
5 audience... If something is protected, you're
6 talking about there being no showing, for Chris, of
7 there being any adverse effect. But, something
8 that's clearly in the public domain, when we're
9 taking about factual material, it's not something
10 that -- you don't have to make a showing of an
11 adverse effect for something that's not protected
12 under Title 17. That's not something that is
13 covered by 1201(a)(1). When the factual materials
14 itself is not necessarily something that falls
15 within the scope of 1201(a)(1), which only protects
16 works that are protected within Title 17. So, who
17 should really -- when we talk about burdens, who
18 should bear the risk of this technology now that's
19 currently in place? Some of this technology is not
20 really discriminating between the copyrightable
21 elements of these databases or compilation which
22 would be the selection and arrangement, or I believe
23 you said that for SilverPlatter, that the
24 protectible elements and there is the search engine
25 within the database. That would be something that
26 is copyrightable and would be protected under the
PAGE 164
1 scope of 1201(a)(1), but some of these masses of
2 facts are just not within the scope of copyrightable
3 material that would be protected. So, if the
4 technology that is currently in existence and this
5 is within the current period, right now, we're
6 talking about what adverse effects are going to be
7 in the future. But we're also looking forward to
8 what some of the changes in technology are going to
9 be. The technology could become more discriminating
10 at some period of time and be applied to only the
11 copyrightable elements as opposed to both the
12 copyrightable and the non-copyrightable elements.
13 Who should bear the burden of this current state of
14 non-discriminating technology? Should it be the
15 public that are the ones who should not be able to
16 gain access to these public domain elements at this
17 point, because the technology right now is not
18 discriminating and is just broadly protecting both
19 copyrightable and uncopyrightable elements?
20 MR. KUPFERSCHMID: Let me take a stab at
21 that one. I think it is very, very clear that,
22 based on the statute, the legislative history we
23 have, that the burden is on, should be on,
24 proponents of an exemption. I'm a little concerned
25 that the fact that the creativity in the selection,
26 arrangement, coordination of databases is being
PAGE 165
1 somewhat discounted here. Where there is sufficient
2 creativity to warrant copyright protection in the
3 selection, arrangement, coordination of a database,
4 I mean, why is that creativity any less worthy of
5 any less protection than any other creative work
6 just because it happens to include public domain
7 material?
8 If the selection, arrangement,
9 coordination is not worthy of copyright protection,
10 is not sufficiently creative, well, then it's not
11 covered by 1201(a)(1). Now, maybe we'll have a
12 database bill and the investment, rather than the
13 creativity will be protected, but I just -- I'm
14 concerned also that we're kind of skipping over the
15 fact, which is ignoring the fact that -- about the
16 creativity that is involved in the selection,
17 coordination, arrangement and there is, I know, just
18 from talking to our member companies, how much
19 effort they put in and creativity is involved in
20 these databases. And, I would really -- and that
21 worries me if we just sort of skip over that and
22 talk about the material that's in the databases.
23 It's copyrightable, maybe owned by somebody else, or
24 maybe it's public domain information or maybe it's
25 government information.
26 So, I think the burden of proof does not
PAGE 166
1 change here. It remains on the proponents of an
2 exemption.
3 MR. MIRCHIN: And, I don't -- I haven't
4 seen in the record any need for it. I mean, I
5 haven't seen people saying they can't get access,
6 information isn't available, they can't get to
7 Medline. In fact, a lot of the products that are
8 done in the private sector are also done, often for
9 free, in the public sector and actually an example
10 is Medline, put out by the National Library of
11 Medicine. You can go to Pubmed and yet a lot of the
12 private providers, like SilverPlatter, still license
13 a lot of it and the reason is because we provide
14 some other benefits.
15 The other benefits might be that you can
16 search across a whole range of databases, so in
17 other words, I think there really needs to be some
18 showing that people are not being able to get at
19 this material, that there is a real problem that
20 needs to be addressed.
21 MR. KASUNIC: There was a lot of
22 discussion about what is not a class of works and I
23 heard a lot of specifics about what things that were
24 claimed to be classes of works and how they didn't
25 fit in. Can you offer any assistance in what
26 criteria we would use to figure out what is a class
PAGE 167
1 of works?
2 MR. KUPFERSCHMID: I think I'll leave
3 that up to those who want an exemption. I mean, I
4 really -- I don't. I don't think an exemption is
5 appropriate and I honestly don't have any helpful
6 hints to help these proponents of the exemption out.
7 MR. KASUNIC: If we decide that
8 databases is a class of works that fits in there,
9 then would the exemption be something that should be
10 related to a particular use of that database, or
11 should we just exempt all databases per se.
12 MR. KUPFERSCHMID: I'm not sure I follow
13 your question, but certainly if you're talking about
14 exempting all databases per se, I would have a
15 problem with that. I think you certainly have the
16 definitional problems with databases, or at least as
17 some would have you think that we have definitional
18 problems defining a database, so, I don't think you
19 resolve any issues by just saying okay, databases
20 are not, you know, aren't -- don't warrant the
21 protection here and as I mentioned before, I think
22 we're going down a really bad path here by creating
23 some negative implication and if we start off with
24 databases, well what category of works might be
25 next? You know, in that vein I should add that
26 databases is sort of a -- is not really a very
PAGE 168
1 narrow sub-set as required by the Congressional
2 mandate, as a sub-set of a class of works.
3 MR. MIRCHIN: Yes, I would just say,
4 again, as a practical matter, you're talking about a
5 lot of organizations that put a huge amount of time
6 selecting, you know, these are the economics
7 journals we're going to include; these are the ones
8 we're not; these are the proceedings we're going to
9 include from various economic conferences; these are
10 the ones that are not, as an example. And, saying
11 that that selection and arrangement is entitled to
12 no copyright protection would sort of write that out
13 of the copyright law.
14 You know, there is nothing here that
15 says that that's entitled to less copyright
16 protection.
17 MR. CARSON: And, yet you have a
18 database let's say of -- well, let's take one that
19 I'm more familiar with and that's easy for most
20 people in this room to relate to I suppose, because
21 you have a database of judicial opinions. You may
22 have engaged in a great deal of selectivity and
23 creativity in determining which judicial opinions to
24 put in that database. If I have access to that
25 database and I decide I am going to reproduce one of
26 those judicial opinions in whole and in fact I'm
PAGE 169
1 going to distribute that opinion to everyone I know,
2 you wouldn't have a leg to stand on in a copyright
3 infringement suit, would you? Your copyright
4 doesn't protect that. Your copyright protects the
5 overall selection, coordination and arrangement, not
6 the individual work within that database.
7 MR. MIRCHIN: I think in the 8th Circuit
8 it's still okay.
9 MR. KUPFERSCHMID: But, I mean, we're
10 still talking about access here and what you're
11 talking about is reproduction and distributing,
12 which is something entirely different.
13 MR. CARSON: Granted. 0
14 sometimes how we do it. But, I think maybe I'm
15 hearing an overstatement in terms of what the
16 copyright is protecting and that's what I'm trying
17 to get at right here.
18 MR. MIRCHIN: I mean, it's clear we're
19 taking about the access, distinguishing between the
20 access and the further use down --
21 MR. CARSON: No question. No question.
22 MR. MIRCHIN: Okay. Okay.
23 MR. KASUNIC: Well, I think we're going
24 full circle back to some of the original questions
25 that were asked. So, if we understand that there is
26 copyright protection -- and not demeaning that
PAGE 170
1 protection in anyway by saying that databases or
2 compilations of any sort are not deserving of that
3 creativity. While I don't know about using the term
4 ``effort'', which is something that we've been told is
5 not a consideration in this, but rather whether
6 there is originality in compilations or in the
7 creation of these works. But that copyright is
8 limited. Whether we like it or not, it's a thin
9 copyright that is involved here. And should these
10 technological access control measures be allowed to
11 lock up these entire works, including things that
12 maybe should be accessible to the public. There is
13 a claim that the public has a right to access, at
14 least -- not the creative original parts that is
15 entitled to copyright protection -- but some of the
16 other elements that are part of the public domain.
17 MR. KUPFERSCHMID: But, once again, I
18 don't know how you separate the creativity selection
19 and arrangement, which protectable by copyright and
20 if it's not we're talking about some other issue.
21 But, I don't see how you separate that and the
22 particular work. I mean, if you're talking about
23 accessing one work of many works, then you're
24 talking about a different situation, because the
25 access control technologies that we're talking about
26 generally they would cover the entire database, not
PAGE 171
1 a particular work, because then you're talking about
2 a different issue.
3 I mean, if you're talking about an act
4 to circumvent an access control technology that
5 covers, that protects only one particular work of
6 the database, then you're not talking about
7 protecting the database.
8 MR. KASUNIC: I'm talking about the one
9 particular work in the database, unless there could
10 be something that would obtain copyright protection
11 if you were talking about collective work, and you
12 have individually protected works within that.
13 MR. KUPFERSCHMID: Yes.
14 MR. KASUNIC: We're talking about a
15 compilation of facts in terms of a database.
16 MR. KUPFERSCHMID: And, you're trying --
17 if I understand you correctly, you're talking about,
18 well, why shouldn't people be able to get at that
19 one fact, right?
20 MR. KASUNIC: At the factual material,
21 as opposed to any particular selection or
22 arrangement. If you have a database that has a
23 search -- the search engine would be the tool that
24 would select and arrange the data within a database.
25 Isn't that --
26 MR. KUPFERSCHMID: If you're talking
PAGE 172
1 about circumventing an access control, technological
2 measure that's protecting a database, in order to
3 get at the underlying facts, I don't see how you
4 circumvent that technology without also accessing
5 the selection, arrangement and coordination of that
6 database. That's what I'm saying, they're two --
7 they're intermingled. And, that's talking about
8 access control technology protecting a particular
9 fact and that's outside the range of what we're
10 talking about here.
11 We're talking about when a user protects
12 a database. By circumventing that you're -- not
13 only are you -- well, I mean, you're getting out the
14 underlying factual information that's incorporated
15 into the database, but you're also getting at the
16 selection, coordination and arrangement of the
17 database. They're intertwined.
18 MS. DOUGLASS: Does it have to be?
19 MR. KUPFERSCHMID: I'm not a technology
20 expert, so I don't really know the answer to that
21 question, although -- I mean, that's what database
22 owners are concerned with, protecting their
23 database, so that's what they're going to protect.
24 MS. DOUGLASS: Can't you code it
25 separately? Can't you code separately the
26 uncopyrightable material and then hold the other
PAGE 173
1 part differently?
2 MR. KUPFERSCHMID: Well, I mean for one
3 thing I think you're talking about -- that is
4 obviously on a case by case basis, depending on the
5 database you're talking about and secondly that's a
6 tremendous burden to put on -- to put on any
7 copyright owner, especially, certainly database
8 owners where you can have fields upon fields upon
9 fields of information and, you know, determining and
10 labeling exactly what may or may not be public
11 domain. I mean that's a unbelievable amount of
12 effort.
13 MR. KASUNIC: So, should the public bear
14 that burden now to try and make that determination,
15 which they can't make, because they can't access it
16 to begin with, so that this really becomes circular?
17 Who should bear that burden of making that decision
18 of only protecting the appropriate material which
19 would be the copyrightable material, at least to
20 gain protection under 1201(a)(1)?
21 MR. KUPFERSCHMID: Going back to my
22 original statement. The burden is on the proponents
23 of an exemption here. The law is what it is and
24 it's proponents of an exemption or an exception,
25 they're the ones that need to go forward and prove
26 their case and I haven't seen it yet. I mean, I
PAGE 174
1 think that's why we're having some difficulty here,
2 because maybe if we had some facts from which to
3 work with, we could have more detailed conversation,
4 but we're sort of talking in theory.
5 MS. DOUGLASS: The law is what it is,
6 but a lot of people say on one side that the law
7 provides for fair use and on the other side people
8 say that you don't really need to talk about fair
9 use, you need to talk about negotiated use.
10 As a matter of fact, I believe I heard
11 you say that you really are not necessarily
12 referring to fair use as much as you are referring
13 to negotiated use or use that you have to have --
14 that provides for a contract.
15 In other words, what I really want to
16 know is how does fair use figure in the 1201(a)(1)
17 calculation? Some people say that there is no such
18 thing as fair use unless you tried to make an
19 agreement and you failed to make an agreement. How
20 does fair use actually figure into 1201(a)(1)? Are
21 you always talking about first obtaining permission?
22 MR. KUPFERSCHMID: Fair use has nothing
23 to do with this inquiry at all on 1201(a)(1). It
24 really doesn't. We're talking about circumvention
25 of access control technologies. We're not talking
26 about copying, distributing, anything like that.
PAGE 175
1 We're talking about access. To give you an example,
2 I have tons of stuff back in my office that a lot of
3 which is protected by copyright. That doesn't give
4 you any right to break down my door and access that
5 information under the guise of fair use. And, so
6 when we're talking about 1201(a)(1), fair use has
7 absolutely nothing to do with the consideration
8 here.
9 I mean, you'll see from the library
10 comments, they don't even call it fair use. They
11 call it a right of fair access, which sort of comes
12 out of nowhere.
13 MR. MOHR: I would also add to that that
14 this was something that was considered by Congress
15 and rejected.
16 MS. DOUGLASS: So, fair use is out the
17 window as far as access control is concerned.
18 MR. KUPFERSCHMID: I wouldn't say it's
19 out the window. It's never been in there to begin
20 with.
21 MS. DOUGLASS: It's not part of the
22 calculus at all.
23 MR. MONTORO: Well, I think it does make
24 a difference though after you have lawful access to
25 the program. After you have a lawful access then
26 fair use does come into play.
PAGE 176
1 MR. KUPFERSCHMID: I would agree, but
2 then, of course, you're talking about a different
3 situation and one that is not within the scope of
4 the rule making.
5 MS. DOUGLASS: I have a hypothetical.
6 Suppose that you suspected someone had taken part of
7 your encrypted -- taken part of your copyrighted
8 material, one of our databases, and put it in some
9 encrypted material. Should you be able to
10 circumvent that technological measure to find out
11 whether or not your material was contained in that
12 encrypted material? Suppose you think --
13 MR. MIRCHIN: So, what would be --
14 MS. DOUGLASS: Suppose SIIA has a flashy
15 database and, not that SIIA publishes databases, you
16 know, members do, but anyway, suppose they did.
17 And, suppose you, SilverPlatter, thought that hey,
18 they've got Psyclit in that database, would you be
19 able to circumvent any access control SIIA had in
20 order to find out? Should you be able to, would you
21 be able to?
22 MR. MIRCHIN: We would never be
23 circumventing any access control.
24 MS. DOUGLASS: So, you shouldn't be able
25 to?
26 MR. MIRCHIN: Well, I guess I'm not sure
PAGE 177
1 why that should be different. Yes, I guess it just
2 doesn't seem to me like that, the fact that they use
3 encryption should make it different that I should be
4 able to do that or not.
5 MS. DOUGLASS: Shouldn't be able to,
6 even if it's for what you might think would be a
7 legitimate purpose?
8 MR. MIRCHIN: Well, I mean, there is an
9 exception on the encryption research and all that.
10 MS. DOUGLASS: So, you would be
11 conducting encryption research to find out whether
12 they had a --
13 MR. KUPFERSCHMID: I think what he's
14 trying to get at is is that there is -- I mean there
15 -- you basically you look to the law. You look to
16 the what the exceptions are. If you want to get at
17 the underlying database and it falls within one of
18 those exceptions, great, but I mean I don't think
19 the situation you state does.
20 MS. DOUGLASS: So, you wouldn't be able
21 to do it?
22 MR. KUPFERSCHMID: No. I mean,
23 according to my reading of the law, no.
24 MS. DOUGLASS: And, you shouldn't be
25 able to do that sort of thing?
26 MR. KUPFERSCHMID: There are other ways
PAGE 178
1 to find out whether somebody is taking your
2 material.
3 MS. DOUGLASS: Okay. I just want to
4 have a -- I just have one final just general
5 question, just sort of a -- for my information. You
6 license your databases or do you sell them?
7 MR. MIRCHIN: We license them, largely.
8 I mean, there are actually some exceptions where
9 they actually are sold, but that's really rare.
10 MS. DOUGLASS: And, do you register them
11 for copyright protection? I don't want to put you
12 on the spot. Maybe you don't know.
13 MR. MIRCHIN: Well, we have a really
14 small legal department and we personally don't
15 register them. I actually believe probably the
16 database producers do. The problem of the dynamic
17 databases and registration is that some of them are
18 changing on a daily basis or more frequently than
19 that. And, there is always the question of, you
20 know, how are you going to register them. We
21 personally do not register the databases. We have
22 probably in excess of 2,000 updates a year in
23 various databases. So, we don't.
24 MS. DOUGLASS: I'm just trying to find
25 out whether you registered them as published works
26 or whether you considered them as published works,
PAGE 179
1 whether you considered them as unpublished works, et
2 cetera, et cetera.
3 MR. MIRCHIN: I would say -- I mean,
4 SilverPlatter's interest in this, as well as,
5 obviously, database protection, you know, we're all
6 fellow travelers, is that -- the issue for us is
7 it's our supply. It's our life blood. I mean, if
8 there is not protection, if the database producers
9 cannot make a reasonable living, there simply is no,
10 you know, there would be -- there would be no supply
11 for us. So, that's -- that would be our interest in
12 that sort of thing. So, how they register in terms
13 of copyright, actually I don't know.
14 MS. DOUGLASS: I'm just trying to
15 generally get at the idea of whether these are
16 considered to be published works, are they
17 considered to be unpublished works? Are they then
18 -- do you have any -- as a published work are there
19 any things that sort of follow as far as use is
20 concerned, in terms of what should a purchaser be
21 able to do with the work once he purchases it? I
22 guess that's my point.
23 MR. MIRCHIN: I guess you know, that
24 really raises sort of a general issue which is, you
25 know, in -- also in terms of this rule making, that
26 there are a lot of things that are happening well
PAGE 180
1 outside the access control technology, in terms of
2 the use that people make. I mean, often that's very
3 much a licensing question and a lot of these issues
4 actually come up very much in the licensing context,
5 rather then the access control context.
6 MR. CARSON: Chris or Keith, do you want
7 to add any views at whether in general databases
8 should be considered published or unpublished?
9 Obviously that depends on a case by case basis. I
10 mean I don't -- I never asked actually what our
11 members' practice is, but I'm sure it also -- for
12 them it's on a case by case basis.
13 MR. KUPFERSCHMID: No.
14 MR. MOHR: I mean, it seems that -- I
15 would echo that.
16 MS. DOUGLASS: So, you -- so, they might
17 be published, they might be unpublished. Is that
18 what you're saying?
19 MR. MOHR: Yes. Just like any other
20 work.
21 MR. CARSON: My memory is failing me,
22 but my notes, assisted by a vague recollection, tell
23 me that at least one of you made a point that you
24 can't define a class of works by reference to the
25 type of use someone is making of it. And, I'm
26 wondering if anyone would like to champion that
PAGE 181
1 point of view and explain to me why you can't do
2 that?
3 MR. MOHR: I believe the point was class
4 of user.
5 MR. CARSON: All right. Let's do it
6 that way.
7 MR. MOHR: I mean, the problem with
8 doing it that way is basically that the way this
9 issue has been phrased is in terms of education,
10 library, other miscellaneous uses, that they use the
11 entire gambit of copyrighted works. It's basically
12 a way of writing the prohibition out of the statute,
13 in our view.
14 MR. KUPFERSCHMID: If I could just --
15 I'm sorry, just stop for a second, just because this
16 was actually considered by Congress and rejected and
17 they went with the other approach, which is to
18 define class of works. So, they actually reviewed
19 the legislative history and the proposals -- this
20 was actually proposed and rejected and instead when
21 with the class of works option. So, that's, at
22 least from my understanding, was actually considered
23 at one point and decided that was not the way to go.
24 But, anyhow, I didn't mean to cut you off, Chris.
25 MR. CARSON: Is there anything in the
26 statutory language that forbids us from deciding,
PAGE 182
1 all right, we're going to decide that one class of
2 works is databases when used in an academic library.
3 I'm just -- I'm making this up on the fly, so that
4 may not be a good example, but let's just say that
5 that's -- someone comes forward with evidence that
6 that's where there is a real problem. Why can't we
7 narrowly define a class in that respect?
8 MR. KUPFERSCHMID: I think that if
9 somebody and that's a big, big if, somebody were to
10 come up with that evidence, then we would certainly
11 have to determine if that evidence corresponded
12 with, number one, if there is a causal connection
13 between that evidence and the prohibition, if that
14 evidence was substantial and that that evidence did
15 correspond with the class of works, but once again
16 we're sort of talking about this all in theory
17 because you don't have any actual information to
18 deal with. But, I would be happy when they come
19 forward with the information to talk about it in
20 detail then.
21 MR. MIRCHIN: I know I just say again,
22 would sort of say, just wait a second. It says
23 class of works. Now, you're talking about class of
24 works, but in terms of the users that are -- and the
25 uses that are being made of it. And, I wouldn't
26 want to make your job anymore difficult.
PAGE 183
1 MR. CARSON: All right. That's a
2 question that has been asked a number of times.
3 What on earth is a class of works in the context of
4 Section 1201(a)(1)? How do we determine what a
5 class of works is?
6 MR. KUPFERSCHMID: Right about now I'm
7 glad I don't work at the Copyright Office.
8 MR. CARSON: Would you take my resume?
9 MR. MOHR: I would just like to add one
10 more thing to that. I mean, another thing is that
11 on balance there has to be a balancing and the
12 benefit from these measures, you know, is outweighed
13 by the negative effects. I mean, again, that's a
14 burden that the proponents of an exception bear and
15 that is something, at least in our view, that has
16 not been shown.
17 MR. MIRCHIN: This isn't a test. You
18 don't fail by coming up with the empty slate here.
19 In other words, what I really mean is that it is not
20 incumbent on you to sort of, you know, I think it is
21 incumbent on people who want to propose an exemption
22 to propose some genuine exemption and see what the
23 evidence is behind it. And, then we can actually
24 address it, but I mean I guess I haven't seen the
25 evidence of people genuinely being harmed that they
26 can't get at the information because of it.
PAGE 184
1 MR. CARSON: Mr. Montoro, I don't want
2 you to feel ignored.
3 MR. MONTORO: That's all right.
4 MR. CARSON: So, I'm going to ask Mr.
5 Kupferschmid some questions. I'm picking on you as
6 the punitive representative of the software
7 industry.
8 Let me first ask you whether SIIA has
9 any particular point of view with respect to whether
10 people should, as a general proposition, be able to
11 circumvent the protections that dongles provide with
12 respect to software?
13 MR. KUPFERSCHMID: In our written
14 comments and also I tried to address them a little
15 bit today, I mean, the answer to that is no, unless
16 of course, like I mentioned before, for some reason
17 it falls under -- within one of the exemptions.
18 And, I can actually cite an example and I think this
19 is backed up by Mr. Montoro's comments. He
20 discusses the fact that universities like to use the
21 AutoCAD programs and which cost a lot of money, but
22 the fact is that the dongles for these programs keep
23 in getting stolen. And, guess what, they're being
24 stolen by students and the software is also being
25 stolen.
26 I mean, that's exactly the type of thing
PAGE 185
1 we're trying to prevent. And, if there is an
2 exemption for lost, damage or stolen dongles, then
3 universities aren't going to take any precautions at
4 all to make sure that their dongles aren't stolen.
5 But, if the burden falls on those who actually
6 purchase the software and the dongles, then they
7 will take out insurance to protect themselves and
8 maybe they'll lock up the dongles when there is no
9 one, you know, watching the computer, the security
10 guard or whatever they use. They're lock them, that
11 type of thing. So, it's best here, certainly, from
12 this standpoint to put the burden on those who
13 actually are purchasing the software to make sure
14 it's not stolen or lost.
15 MR. CARSON: Mr. Montoro, you're raising
16 your hand. I gather you would like to say
17 something.
18 MR. MONTORO: Thank you, Mr. Carson.
19 And, sorry, Rachel.
20 It's amusing and it's amusing, I guess,
21 because for those that are really in the situation,
22 educational facilities and to take a lock device, to
23 take it back whether you've got 30 computers,
24 perhaps, in a shop, is not a real practical
25 solution. What I suggested perhaps of having a
26 replacement technology made available is something
PAGE 186
1 viable, of course. That could be used and that
2 could be used effectively.
3 I might agree with Keith, I'm not so
4 sure that what I have talked about with these
5 dongles is actually access control. But, I never
6 quite heard and I would like the Copyright Office
7 maybe to clarify that what we are talking about is
8 copy protection instead.
9 MR. CARSON: Let me ask you, Keith, do
10 you have a viewpoint on whether dongles are access
11 control measures? Are they something that fall
12 within the scope of Section 1201?
13 MR. KUPFERSCHMID: I think -- I mean, I
14 think they are access control measures from what I
15 understand about the technology, but I do -- would
16 like to leave the opportunity open, because of my
17 more technical experts back in the office and what
18 have you. But, my understanding is they are in fact
19 access control technological measures, you know, but
20 obviously if you don't have access you can't copy
21 either.
22 MR. MONTORO: I believe what Keith, what
23 he had said earlier in his testimony, however, was
24 that he believed that these devices were copy
25 protection devices unless the Copyright Office ruled
26 otherwise, if I characterize that correctly.
PAGE 187
1 But, the problem, again --
2 MR. KUPFERSCHMID: I'm not sure I said
3 that, but go ahead.
4 MR. MONTORO: So, there is a problem
5 with these devices. They cannot be backed up. If
6 they are -- what happens after you receive your
7 first access? Let's say this is -- I purchase a
8 program. It comes with a lock device. Now, I am a
9 lawful authorized user to use that program, but
10 without this device I cannot use that program. Does
11 it mean that I -- is it then an access device or is
12 it copy protection device. And, I think that's what
13 Mr. Jaszi was trying to get at this morning, where
14 he was talking about second usage and that's where
15 I'm going also.
16 MR. CARSON: Keith, I would like to
17 follow up on a comment you made. I can understand
18 the fear of a potential for abuse if someone just
19 says we lost it, it was stolen, go back and get
20 another one or being able to circumvent in those
21 case. I understand the potential for abuse there.
22 But, at least what we're hearing from Mr. Montoro is
23 there are cases where it's damaged. And, you can't
24 get the company to replace it. A, what on earth
25 would justify a company in refusing to replace it
26 and second, if that company refuses to replace it,
PAGE 188
1 when it is demonstratively proven that the thing is
2 just damaged. Here it is, it's damaged. I didn't
3 give it to someone else.
4 What on earth would justify not
5 permitting a person in that position to circumvent?
6 MR. KUPFERSCHMID: A couple of things.
7 One, as I mentioned, is that there are third parties
8 that will agree to escrows and this happens all the
9 time. Will escrow software. Will escrow hardware
10 locks, that type of thing. They will do that, so if
11 that's a concern of yours, certainly you can do
12 that. But, that's beside the point.
13 MS. GOSLINS: Although that requires the
14 permission and effort on the part of the software
15 publisher, right?
16 MR. KUPFERSCHMID: Oh, sure.
17 MS. GOSLINS: There is no guarantee
18 that --
19 MR. KUPFERSCHMID: Without a doubt.
20 MS. GOSLINS: -- that they would make
21 that available to the third party.
22 MR. MONTORO: Hindsight is 20/20. After
23 somebody has gone out of business, trying to say
24 that they should escrow this material for future
25 people to use is a little too late at that point.
26 MR. KUPFERSCHMID: Escrow is something
PAGE 189
1 you would do at the time of agreement, certainly,
2 and that is actually a practice that is somewhat
3 common. We have a lot of members, a matter of fact
4 --
5 MR. CARSON: Can I stop you right there?
6 MR. KUPFERSCHMID: Yes.
7 MR. CARSON: Just for a second. I've
8 got another point. This may be my ignorance. How
9 do you meaningful escrow a piece of hardware and
10 what does that mean?
11 MR. KUPFERSCHMID: You would just get a
12 third party who would basically hold that hardware
13 and if the dongle wasn't operable, then you would
14 have this other, this other hardware that sort of
15 been, sort of in storage, I guess, for lack of a
16 better term.
17 MR. MONTORO: It's not possible. I'm
18 sorry, it's not possible to do that. The hardware
19 piece is unique to each customer. That would mean
20 that the manufacturer would have to send out one
21 dongle, one of these pieces to the customer when he
22 gets the software package and one to a third party
23 escrow person to hold onto it in the eventuality
24 something happened.
25 MR. KUPFERSCHMID: But, that's exactly
26 what we're talking about. That does happen.
PAGE 190
1 MR. CARSON: Is that a typical practice?
2 MR. KUPFERSCHMID: For dongles, I really
3 don't know. With software, it is. Let me take that
4 back, depending on the software, okay, it could be a
5 typical practice. I mean, we're talking about many
6 different software products here.
7 MR. CARSON: Okay. Let's assume that
8 that didn't happen. You know, there wasn't a, I
9 guess another dongle in the hands of some third
10 party escrow. The user's dongle is broken. And, he
11 goes back to the software company, if it still
12 exists, and says, hey, it's broken. Here, I'll ship
13 it to you. You can look at it. You can find out
14 for yourself. And, the software company says, too
15 bad, buy another $7,000.00 software package. Why,
16 under those circumstances, should the user not be
17 permitted to circumvent?
18 MR. KUPFERSCHMID: And, this actually was
19 -- now, you're getting back to the very first point
20 I wanted to make, which is what I read in Mr.
21 Montoro's comments, I said -- I mean, gee, is this
22 right and when I called our software companies that
23 have an interest here and use dongles and, I mean,
24 they informed me that is actually not the case. I
25 mean, if -- and I think actually there is one line,
26 although I don't have it handy, in Mr. Montoro's
PAGE 191
1 testimony where it says, if you're talking about
2 lost or stolen, but if you're talking damaged
3 dongles, in most cases the software provider will
4 actually replace that or work with the customer.
5 I mean, they don't want to lose
6 customers it's bad business. So, they will actually
7 work with the customer in virtually all cases. In
8 talking to our members this was confirmed.
9 MR. CARSON: Let me make sure I'm not
10 misunderstanding what you said. Have there been
11 cases? Are you aware of cases where you have the
12 damaged dongle and there is simply no recourse from
13 the software company?
14 MR. MONTORO: Well, the first instance
15 would be if a company went out of business and there
16 was nobody to go back to and I mentioned that
17 already.
18 MR. CARSON: Right.
19 MR. MONTORO: Generally, companies will
20 replace one that is damaged, if they are still
21 around to do so. The problems come up, of course,
22 that if the lock device is lost, there is a burglary
23 and I think Keith raised earlier the point that you
24 should go ahead and you take your software and you
25 lock it up, you lock up your hardware lock at night.
26 Well, the truth is that most people will obviously
PAGE 192
1 lock up their software and keep it in a certain
2 spot. The software, however, is already install on
3 your computer. Once it's installed on the computer
4 with the hardware lock, you don't ever touch it.
5 You don't climb behind your desk every night before
6 you go home to remove a device.
7 And, so those are real problems and
8 we've had people actually call us, hey, I've got a
9 police report, this is exactly what happened. It's
10 to the dealers, typically that deal the software
11 that's out there, they -- generally it's up to them
12 if they're going to replace something or not and the
13 problem is that they are motivated by making another
14 sale. And, I've come across this once before, where
15 they had no incentive really to help out somebody if
16 it's actually been lost. They will say you simply
17 can go ahead and try to claim it on your insurance.
18 And, I've had customers come back to me
19 and tell me my insurance does not cover this.
20 MR. CARSON: Okay. Let's take your
21 scenario where the software company is out of
22 business. What's your response to Mr.
23 Kupferschmid's point that if a software company is
24 out of business, who on earth has got a claim
25 against you under Section 1201(a)? What's your
26 problem?
PAGE 193
1 MR. MONTORO: It's still breaking the
2 law as I understand the way 1201(a) would be.
3 You're still circumventing a device -- a copyright
4 protection device or even maybe an access control
5 device, depending on how we define it. So, whether
6 you're breaking the law and no body knows about it
7 or you still maybe breaking the law and that's why
8 we need the exemption.
9 MR. CARSON: That's all I have. I want
10 to thank you all for sharing your thought with us.
11 Our work still -- we still have a lot left to do,
12 just in the next two days. I apologize on behalf of
13 the Register who really did want to be here. She
14 will have the opportunity of reading the transcript
15 and/or hearing the audio tape of your testimony. As
16 we mentioned at the outset, it may well be that
17 after you've all left we'll realize, oh, my God, we
18 really should have asked you this question or that
19 question or the Register herself may well have some
20 questions that none of us thought of and we are
21 certainly reserving the right to get those to you
22 and ask you to get back to us in writing in
23 sufficient time that that can be made part of this
24 record and hopefully in time for others to comment
25 upon that in their post-hearing comments.
26 So, with that we will adjourn until
PAGE 194
1 tomorrow morning at 10:00 a.m. Thank you, everyone.
2 (Whereupon, the hearing was adjourned to
3 reconvene tomorrow at 10:00 a.m.)