PAGE 1
LIBRARY OF CONGRESS
+ + + + +
UNITED STATES COPYRIGHT OFFICE
+ + + + +
HEARING ON EXEMPTION TO PROHIBITION ON
CIRCUMVENTION OF COPYRIGHT PROTECTION SYSTEMS
FOR ACCESS CONTROL TECHNOLOGIES
+ + + + +
DOCKET NO. RM 9907
+ + + + +
Thursday, May 4, 2000
+ + + + +
The hearing in the above-entitled matter
was held in Room 202, Adams Building, Library of
Congress, 110 Second Street, S.E., Washington, D.C.,
at 10:00 a.m.
BEFORE:
MARYBETH PETERS, Register of Copyrights
DAVID CARSON, ESQ., General Counsel
RACHEL GOSLINS, ESQ, Attorney Advisor
CHARLOTTE DOUGLASS, ESQ., Principal Legal
ROBERT KASUNIC, ESQ., Senior Attorney Advisor
PAGE 2
PRESENT:
ARNOLD P. LUTZKER, American Library
Association,
Association of Research Libraries, American
Association of Law Libraries, Medical Library
Association, and Special Libraries Association
JAMES G. NEAL, American Library Association
JULIE E. COHEN, Georgetown University
BERNARD SORKIN, Motion Picture Association of
America, Time Warner, Inc.
RICHARD WEISGRAU, American Society of Media
photographers, Inc.
VICTOR S. PERLMAN, American Society of Media
Photographers, Inc.
STEVEN J. METALITZ, ESQ., Smith & Metalitz,
L.L.P.
PAGE 3
C-O-N-T-E-N-T-S
PAGE
Presentation by Arnold P. Lutzker, Esq. 4
Presentation by James Neal 18
Presentation by Julie Cohen 24
Presentation by Bernard Sorkin 125
Presentation by Richard Weisgrau 135
PAGE 4
1 P-R-O-C-E-E-D-I-N-G-S
2 (10:00 a.m.)
3 MS. PETERS: Good morning and welcome to
4 the third and last day of the hearings in D.C. on
5 the issue of exemptions to the anti-circumvention
6 measure contained in Section 1201(a).
7 This morning we have three witnesses.
8 They're already seated at the witness table. We
9 have Arnie Lutzker, representing five library
10 associations. We have Jim Neal, who is also
11 representing library associations, and Professor
12 Julie Cohen from Georgetown University Law Center.
13 So why don't we start with the order
14 that it appears with you? And you know that we will
15 be posting the, if we can technologically, the
16 comments on the Web or the testimony on the Web site
17 if we can stream it, and we will as soon as we get
18 the transcript be posting the transcript, and then
19 later, when it's edited, we will replace it with the
20 edited transcripts.
21 So, Arnie, thank you.
22 MR. LUTZKER: Thank you.
23 My name is Arnold Lutzker, and I served
24 as Special Counsel to a consortium of five national
25 library associations during negotiations of the
26 Digital Millennium Copyright Act.
PAGE 5
1 The purpose of my testimony today will
2 be to offer my perspective on the development of the
3 exemption in Section 1201(a)(1) and its meaning.
4 First, let me give some background to my comments.
5 I was one of the principal negotiators
6 for the library and educational communications
7 during consideration of Section 1201(a). If we can
8 return to those hectic days of yesteryear, and many
9 of you on the panel were eyewitnesses to all of
10 that, bills working through Congress to implement
11 the WIPO treaties had several clear themes.
12 Among them was the notion that copyright
13 law was to be modified to fit the digital
14 millennium, and that created certain things that
15 needed to be preserved. Foremost among the things
16 that needed to be preserved in the view of libraries
17 and educators were the various exemptions and
18 limitations spelled out in current copyright law.
19 For purposes of our discussions today,
20 all of these limitations came simply to be known as
21 ``fair use'', but in the more intense discussions and
22 negotiations, fair use was the code phrase not just
23 for Section 107, but for Sections 108, 109, 110, 121
24 as well.
25 Second, the bill as it was devised
26 applied only to copyrighted works. Public domain
PAGE 6
1 works, government works, and unprotected databases
2 were outside the scope of coverage.
3 Indeed, regarding databases, as you
4 know, a separate title of the DMCA dealt with
5 databases, and it was deleted before final passage
6 as part of the overall compromise to pass the
7 legislation.
8 Section 1201 was never intended as a
9 back door to database protection. As to public
10 domain works, copyright term was also the subject of
11 separate legislation and was adopted with a specific
12 library and educational exception. No change in the
13 status of government works was achieved through the
14 DMCA.
15 Returning to fair use, you will recall
16 that fair use was an issue in the OSP and database
17 discussions as well as the 1201 anti-circumvention
18 discussions. If the libraries and educators --
19 speaking on behalf of their institutions and also
20 for the under represented ``user community''-- could
21 have had their way, a fair use exception would have
22 been absolute and clear in Section 1201 and
23 elsewhere in the DMCA.
24 However, they did not have their way.
25 While the House Judiciary Committee managed to
26 provide a very limited exception which appears in
PAGE 7
1 Sections 1201(d) and 1204(b), these provisions were
2 a far cry from what was desired. Even Section
3 1201(c)(1), which mentions fair use specifically,
4 was not deemed an adequate safeguard for the
5 concerns of libraries and educators with regard to
6 access.
7 Into this breach stepped the House
8 Commerce Committee. It was the Commerce Committee
9 that took jurisdiction and addressed some of the
10 issues left unresolved after an early version of the
11 bill was passed by the Judiciary Committee.
12 The fair use concerns of the libraries
13 and educators in their broadest terms were
14 considered by this legislative body. In general,
15 the members of the committee were more receptive
16 than the Judiciary Committee colleagues to providing
17 specific relief for libraries and educational
18 concerns.
19 Like any legislative process that
20 results in final passage, the bill as drafted,
21 revised, and passed by the Commerce Committee, and
22 later amended in the Senate to place the Section
23 1201 solution in your laps, is loaded with
24 compromises and tensions. That is, in part, why
25 anyone dealing with this rulemaking task takes it on
26 quite gingerly while scratching one's head.
PAGE 8
1 Let me try to help clarify a few things
2 and make a few declarative statements. First and
3 foremost, I believe the legislation as drafted,
4 amended, and passed was intended to create a real
5 solution to a real problem. The Commerce Committee,
6 which championed the rulemaking process, was
7 convinced that the new statutory provisions in
8 Section 1201, bolstered by strong civil remedies and
9 criminal penalties, have the real potential to
10 diminish fair use, the first sale doctrine, and
11 other limitations greatly treasured in copyright law
12 as creating balance in copyright policy.
13 Even though in today's hot intellectual
14 property marketplace individuals and companies are
15 often both users and owners, these rights
16 limitations help level the playing field between
17 owners and users, facilitating just results in
18 enforcement and in licensing negotiations.
19 As you know, the rights limitations come
20 into play without the consent of the copyright
21 owner. In recognition of the tension between rights
22 and rights limitations, the rulemaking process you
23 are undertaking was intended by Congress to be a
24 real solution, not an illusory or unattainable dream
25 to the difficulty of obtaining access to works
26 solely for noninfringing purposes, where no access
PAGE 9
1 permission has been given.
2 And I would like to depart from my text
3 and say not necessarily that no access permission
4 has been given, but none is currently available.
5 There may have been access permission given in the
6 past and then it's expired, but now what do you do
7 when you don't have a current access permission?
8 Second, it flows from this precept that
9 this is a real proceeding, that the burdens imposed
10 on the public seeking an exception now and in the
11 future are not insurmountable. The section's
12 drafters principally asked users to establish
13 whether actual or likely adverse effects would occur
14 if technical measures deny them access to works that
15 are subject to fair use or other limitations.
16 Third, I take exception with the view of
17 those who see this burden as so substantial as to
18 make it hard, if not impossible, to satisfy. When
19 an agency is instructed to deal with likelihood, as
20 you are in this proceeding, it may not have
21 verifiable facts before it. Rather the agency is
22 being asked to make a judgment based on collected
23 information and experience.
24 That does not mean, and I would not
25 suggest in the alternative, that the burden is a
26 sham. The House Commerce committee report explained
PAGE 10
1 the rulemaking proceeding should focus on distinct,
2 verifiable, measurable impacts, should not be based
3 on de minimis impacts, and will solicit input to
4 consider a broad range of evidence of past or likely
5 adverse impacts.
6 By contrast, the House manager's report
7 suggests the evidence must show substantial
8 diminution of availability of works actually
9 occurring, and that future impact should be assessed
10 only in extraordinary circumstances. The later
11 standard would elevate the burden so high as to make
12 this initial proceeding utterly unproductive. There
13 is no experience yet to indicate what the real
14 effects on individuals actions will be when it
15 becomes a crime under copyright law to bypass
16 technology.
17 Fourth, regarding the House manager's
18 report, the Copyright Office should be wary of
19 placing primary reliance on its interpretation of
20 Section 1201. That report goes well beyond the
21 House Commerce Committee and the conference reports,
22 which are the authoritative legislative sources for
23 this provision.
24 As the Supreme Court in National
25 Association of Greeting Card Publishers v. United
26 States Postal Service noted, citing another case,
PAGE 11
1 Vaughn v. Rosen, the House manager's statements do
2 not have the status of a conference report or even a
3 report of a single House available to both houses.
4 In Vaughn, the court noted that the
5 House sponsors had been unable to achieve their
6 objectives in legislation, and thus used floor
7 statements to achieve their aims indirectly. The
8 opinion goes on to say that interpreting legislative
9 history, a court should be ``wary'' of relying upon a
10 House report or even statements of House sponsors
11 where their views differ from those expressed in the
12 Senate. ``The content of the law must depend upon
13 the intent of both Houses, not just one.''
14 Here, of course, we also emphasize the
15 House Commerce Committee, not the House Judiciary
16 Committee, introduced this rulemaking.
17 Fifth, what is this thing called "class
18 of works" or "particular classes of works," and how
19 are you to define it? Section 1201 does not provide
20 much guidance, nor does the limited legislative
21 history. Given the confusion which many
22 commentators in this proceeding have stated about
23 those phrases, as well as the meaning of other
24 essential terms in this section, including
25 circumvention and technological measures, there
26 exists an unsettling ambiguity and vagueness in the
PAGE 12
1 provision with criminal sanctions.
2 This ambiguity raises grave concerns
3 about the constitutional viability of this section.
4 Since your charge is not to rewrite the statute but
5 rather to oversee the rulemaking, I will only note
6 this as a meaningful concern.
7 The phrase "class of works" came out of
8 negotiations in the Commerce Committee and, in my
9 view, should stand in distinction from the phrase
10 "category of works," which appears in the Copyright
11 Act, Section 102.
12 The notion behind class of works is that
13 it cuts across categories. After all, fair use and
14 other limitations are not restricted to categories.
15 As you know, however, the burden of establishing
16 fair use and other limitations can vary according to
17 the nature of the work and the uses made of it.
18 Had the phrase "category of works" been
19 used, there might have been some confusion that the
20 exception should apply to literary works, for
21 example, but not to sound recordings or audiovisual
22 works.
23 The notion that a particular class of
24 works needed to be identified is rooted in the
25 intention to narrow as appropriate the number of
26 affected works. If works protected by technological
PAGE 13
1 measures are available as viable alternatives for
2 fair use purposes, then measures protecting the
3 digital version should not be circumvented.
4 Thus, the Commerce Committee drafters
5 understood that a particular class of works would,
6 in all likelihood, be a narrow subset of one of the
7 broad categories of works. In other words, not all
8 literary works, only some.
9 It sounds simple, but things have gotten
10 more complicated. Why? Well, for one thing, the
11 nature of technological measures controlling access
12 evolved in the short period since consideration of
13 the DMCA. The paradigms referred to in the
14 legislative history were devices that opened works
15 or kept them blocked, literally on-off switches.
16 You either had access or you didn't.
17 Technological measures like pass codes
18 or keys to encrypted or scrambled works are cited in
19 the committee report. If you had the code or key,
20 you're in. If you don't, you're out.
21 Other technological measures were
22 recognized to control what is done with the work,
23 such as copy protection measures. The legal
24 implications for fair use of these latter controls
25 are what is addressed in Section 1201(c)(1).
26 Nevertheless, one does not reach the issue of
PAGE 14
1 copying if you are denied access.
2 Thus, in the legislative negotiating
3 process, technological measures controlling access
4 were viewed as something that assure the copyright
5 owner control over who got into the work and who
6 didn't, something you negotiate for and get - or
7 not.
8 It turns out as technological models
9 have been refined over time, as the Library
10 Association comments explain, persistent access
11 usage controls, such as timed use controls which
12 turn access on and off repeatedly during access
13 sessions, are a developing model. Those with
14 technical savvy can speak in more depth about these.
15 The simple truth is that the section
16 drafters did not have persistent access usage
17 controls before them when crafting the current
18 relief in Section 1201(a)(1) or Section 1201(c).
19 However, they knew technology would be changing. To
20 keep the legislation current, they granted you
21 rulemaking authority to use judgment in applying the
22 exception and set new rulemaking proceedings to
23 occur in three year intervals after the initial two
24 year study so that changing conditions could be the
25 basis for periodic reassessment.
26 Nevertheless, the failure to account for
PAGE 15
1 technological measures that merge access and usage
2 controls and the fast evolution of technology
3 complicates your immediate task. While the
4 Copyright Office may revisit the issue when more
5 data is available, it does not provide an immediate
6 answer as to how best to frame the exemption
7 initially and make it work effectively for the next
8 three years.
9 I doubt I need to emphasize that because
10 this is the first of these proceedings, even though
11 you will return to these deliberations in three
12 years, what you do by this October will set the
13 standard for years to come.
14 As to core recommendations, here are a
15 number of things I think that should be stated in
16 the final rule.
17 First, Section 1201(a) applies only to
18 works protected under the Copyright Act. This means
19 that public domain works, government works, and
20 unprotected databases are not covered by Section
21 1201.
22 This much is apparent from the plain
23 text of the statute. If a work is not protected
24 under this title, Section 17, USC, then Section 1201
25 should not make bypassing technological measures
26 that control access to the work a crime.
PAGE 16
1 Second, a particular class of works is
2 not limited to any category of works. Fair use and
3 all of the limitations apply to every conceivable
4 kind of work, all categories enumerated in Section
5 102, and others that may be conceived. This does
6 not mean that every copyrighted work will be fair
7 game under the exception. Only that any work could
8 be based on circumstances.
9 Third, particular class of work should
10 be defined in terms of criteria, not by specific
11 titles. Among the crucial elements of the
12 definition are these: whether the content of the
13 digital version is identical to or the functional
14 equivalent of a version readily available in the
15 marketplace that is not subject to access control
16 measures; whether access to the digital version of
17 the work was initially lawfully acquired by the
18 user; whether controls employed restrict uses in the
19 guise of access; and whether the proposed use is
20 lawful and noninfringing under current copyright
21 law.
22 Fourth, the need for preservation and
23 archiving of digital work should be specifically
24 addressed. In the case of libraries and archives,
25 if it is established that a particular class of
26 works is not being preserved or archived by the
PAGE 17
1 copyright owners, then upon petition to the
2 Librarian one or more repositories should be chosen
3 for purposes of establishing an archive of such
4 works.
5 In leaving the definitions and terms of
6 Section 1201 open to expert interpretation, Congress
7 gave the Copyright Office and the Librarian
8 substantial authority to make the principles of
9 Section 1201 and fashion a remedy that insures
10 continued viability of fair use in other rights
11 limitations.
12 By defining particular classes of works
13 in the manner suggested, the rulemaking would
14 provide a narrow, yet focused opportunity for
15 persons who have legitimate fair use reasons for
16 using a work to enjoy rights limitations without
17 fear of civil or criminal liability if they bypass a
18 technological measure to access a work.
19 Moreover, such an approach, which
20 mirrors the way fair use itself has evolved over
21 time, would sustain the balance between owners and
22 users that has persisted for decades in current law
23 and keep the playing field of negotiations level at
24 a time when licensing access to works, rather than
25 buying copies, is becoming the prevalent mode of
26 obtaining copies of many works.
PAGE 18
1 Thank you.
2 MS. PETERS: Thank you.
3 Jim.
4 MR. NEAL: Good morning.
5 MS. PETERS: Morning.
6 MR. NEAL: My name is Jim Neal. I am
7 Dean of University Libraries at Johns Hopkins
8 University.
9 I'm here today as a spokesperson for the
10 American library community and as a Director of a
11 large academic library system.
12 I have also participated extensively
13 over the last decade in the national and
14 international debates on changes in our copyright
15 laws and the advancement of electronic publishing,
16 electronic education, and digital libraries.
17 Most recently I worked closely with the
18 legislature in Maryland, perhaps not closely enough
19 --
20 (Laughter.)
21 MR. NEAL: -- as we considered the UCITA
22 legislation. My basic message today is that we need
23 a meaningful exemption for libraries and their users
24 to the anti-circumvention provisions of DMCA 1201.
25 We must avoid the unfair and unnecessary barriers to
26 the legitimate accessing and use of copyrighted
PAGE 19
1 works protected by certain technological measures.
2 Therefore, I support with enthusiasm the
3 findings and recommendations submitted to the U.S.
4 Copyright Office on this matter by the American
5 Library Association and other national library
6 organizations.
7 I note what the Episcopal bishop said to
8 the Anglican bishop. "Brother, we both serve the
9 Lord, you in your way and I in His."
10 In that spirit, I would like to make
11 several additional points here this morning. First,
12 we must enable libraries to continue their historic
13 functions, the activities that sustain and advance a
14 healthy society and that break down unfair barriers
15 to information, access and use, and these include
16 the ability to archive works, to make materials
17 available for classroom use, to distribute or
18 purchase copy, and to serve the visually impaired,
19 for example.
20 The exceptions and limitations to
21 copyright must be preserved and advanced in spite of
22 technological controls.
23 Second, libraries are responsible users
24 of copyrighted materials, and we strive to educate
25 our users and our communities in the appropriate and
26 legal employment of these materials in their
PAGE 20
1 education, their research, and their work.
2 We are prepared and we do act
3 responsibly in addressing in effective ways abusive
4 behavior. We have policies. We have procedures.
5 We have sanctions. We inform and orient our users
6 to their responsibilities as users of copyrighted
7 materials.
8 Three, we currently are working with
9 technological controls, such as domain managed and
10 password and proxy systems, but we are very
11 concerned about prospective technological controls,
12 both what I call passive controls and active
13 controls, controls that will manage access and use
14 at a level that will, in fact, prevent legitimate
15 uses of copyright information.
16 We need the ability to circumvent such
17 controls when permitted by the provisions of our
18 copyright laws. The ability to print, to make
19 ephemeral copies, to archive, for example, must be
20 sustained.
21 I am concerned about things like self-
22 help, take down, persistent tools, and other
23 destructive practices which can undermine a
24 teacher's class or a researcher's project.
25 Four, we are similarly concerned in the
26 library community about the additional risks that
PAGE 21
1 such technological controls present in their threats
2 to personal privacy. Federal legislative
3 initiatives are beginning to address these issues,
4 but libraries are fundamentally committed to the
5 privacy of our users, and we will not tolerate
6 erosion of this principle to serve vendor fears or
7 marketing interests.
8 I must also step back to Item 3 and say
9 that multiple formats do not solve our problem. We
10 must remember that in the electronic environment
11 quality of information equals content plus
12 functionality. Quality of information equals
13 content plus functionality, and users of information
14 in our libraries must be able to make legitimate
15 uses of the entire information package.
16 Five, we are very concerned that
17 technological measures are not designed to prevent
18 alleged piracy, but actually seek to advance a pay
19 per use business model for accessing electronic
20 information. Pay per look, pay per print, pay per
21 download, pay per page, per chart, per map, per
22 sentence, per character, the possibilities are
23 endless, and we need to be concerned about this
24 economic model.
25 Six, we must acknowledge the important
26 relationship between public policy and the ability
PAGE 22
1 of libraries and information users to negotiate
2 licenses effectively, especially in a market
3 dominated by sole source providers.
4 When an activity is recognized and
5 supported in law, it is possible to argue more
6 successfully for its inclusion in contract. This is
7 a digital divide issue. Will only those with the
8 ability to pay, those with the expertise to
9 negotiate effectively, will they secure fair use and
10 barrier free access to legitimate actions, to
11 legitimate use of information?
12 In conclusion, with the anti-
13 circumvention provisions of the DMCA, the proposed
14 database legislation and the hegemony of contract
15 law over copyright law threatened by the UCITA
16 legislation now under consideration in our state
17 legislatures, these things in my view present us
18 with a situation where we are facing in libraries a
19 frontal assault by owners of intellectual property
20 who seek to set aside the balance that we have, in
21 fact, achieved in our copyright laws.
22 We must not reinforce and extend a
23 licensing basis and a transactional model for the
24 electronic information market, and we must not
25 undermine the fundamental and socially beneficial
26 role that libraries have played in enabling access
PAGE 23
1 to information.
2 I'm reminded of a president on a western
3 campus in the United States who, faced with some
4 very different budget problems on her campus,
5 climbed the mountain near campus to consult with God
6 about her problems. This is the question that she
7 posed.
8 Will the cost of libraries on my campus
9 ever come under control?
10 God went off, and She thought and
11 thought for many days about this question, and upon
12 returning, She said to Ms. President, "Yes, the cost
13 of libraries will come under control at your
14 university, but not in my lifetime."
15 We can be sure of one thing. If we do
16 not create a meaningful exemption for libraries to
17 the anti-circumvention provisions of DMCA, our cost
18 under the impact of multiple and diverse
19 technological controls for acquiring, licensing, and
20 managing information to support education, research,
21 and life long learning, these costs will expand.
22 But it is the cost of societal advancement and the
23 forms of reduced intervention and stunted personal
24 growth that I think will have the greatest expense
25 in the United States.
26 I thank you for this opportunity to
PAGE 24
1 share my ideas, and I will welcome your questions.
2 MS. PETERS: Thank you.
3 Professor Cohen.
4 PROF. COHEN: Good morning. My name is
5 Julie Cohen, and I'm Associate Professor of Law at
6 the Georgetown University Law Center.
7 I offer this testimony on behalf of
8 myself as an academic who makes research use of
9 copyrighted materials, as a teacher who makes
10 educational use of copyrighted materials, and as a
11 specialist in copyright law who has published a
12 number of articles about the implications of
13 copyright management technologies and anti-
14 circumvention regulations. The articles are cited in
15 the written testimony.
16 It is my personal opinion that the anti-
17 circumvention provision in Section 1201(a)(1), as
18 well as the related provisions in Section 1201(a)(2)
19 and (b), are in their entirety unconstitutional.
20 That question, though, plainly is not before the
21 Librarian today.
22 Instead, we are here to determine
23 whether the Librarian should declare a specific
24 exemption or exemptions to the anti-circumvention
25 provision in Section 1201(a)(1), pursuant to
26 statutory authorization.
PAGE 25
1 To do that, however, this proceeding
2 first must determine exactly what sort of exemption
3 Section 1201(a)(1) authorizes. In particular, if
4 the statutory delegation to the Librarian is
5 susceptible of different constructions, one
6 constitutional and one not -- that is to say, if the
7 statute is ambiguous -- it is equally plain that the
8 Librarian must choose the construction that comports
9 with constitutional limitations.
10 Chevron teaches that an agency's
11 reasonable construction of ambiguous statutory
12 language is entitled to deference. An
13 unconstitutional interpretation is by definition an
14 unreasonable one. That question is properly raised
15 in this proceeding.
16 There is a constitutional interpretation
17 of Section 1201(a)(1) and an unconstitutional one,
18 and the Librarian is obligated to choose the former
19 and not the latter.
20 Section 1201(a)(1) authorizes the
21 Librarian to declare an exemption to the prohibition
22 on circumvention of access control measures for, ``a
23 particular class of copyrighted works,'' upon a
24 showing that the ability to make noninfringing uses
25 is likely to be, ``adversely affected.''
26 Constitutionality hinges upon the interpretation of
PAGE 26
1 these two phrases.
2 With regard to a ``particular class,'' the
3 question is how a class should be defined and, in
4 particular, whether a class may be defined by
5 reference to the type of use sought to be made. The
6 copyright industries, in their joint reply comments,
7 argue that defining permitted uses is not the issue
8 in this proceeding.
9 Nothing could be farther from the truth.
10 The statute and the legislative history suggest that
11 classes of works are not coextensive with categories
12 of original works of authorship, as that term is
13 used in Section 102(a), but beyond that, they simply
14 do not say what Congress intended "class" to mean.
15 The dictionary defines "class" as a
16 group, set or kind sharing common attributes. The
17 nature of the attributes that will define the scope
18 of the exemption is precisely the question that this
19 proceeding must address.
20 Moreover, the language of the statute
21 authorizes the Librarian to declare an exemption for
22 any class of works that raises the concerns
23 articulated by Congress, and thus, necessarily, for
24 all classes of works that do so.
25 Based on my experience as a researcher,
26 writer, and educator, I believe that the question of
PAGE 27
1 what class or classes of works raises the problem
2 that Congress identified cannot be answered ex ante
3 except by reference to the use that is sought to be
4 made. The nature of the research and educational
5 processes makes it impossible to say in advance
6 which specific works must be consulted.
7 Research is, by its very nature, a
8 process of open ended and wide ranging inquiry.
9 Good research and good writing require a significant
10 degree of random, fortuitous access to source
11 materials and the ability to pursue tenuous, but
12 possibly fruitful links and connections.
13 Good creativity, that is to say,
14 requires something less than perfect control for
15 copyright owners, and promoting good creativity is
16 what copyright is all about. It is for precisely
17 this sort of reason that Section 107's fair use
18 analysis is an open ended balancing inquiry, and
19 that the Supreme Court has cautioned against the
20 application of rigid presumptions and bright line
21 rules.
22 In contrast, the implementation of
23 persistent access control technologies without
24 exemption would require, in effect, ongoing
25 preauthorization of research uses. This would chill
26 the freedom of inquiry that is central to the
PAGE 28
1 academic process and that is, moreover, privileged
2 by the First Amendment as I have explained in my
3 article, "A Right to Read Anonymously."
4 Good education requires a similarly open
5 ended approach to questions of access to and use of
6 copyrighted materials. The basic course in
7 copyright law is illustrative. Students must read
8 federal cases and statutes, of course, and since no
9 copyright subsists in those materials, they should
10 be entitled to circumvent access controls when no
11 feasible alternative exists.
12 However, a good copyright course also
13 will expose students to scholarly theories and
14 source materials, and further to examples of the
15 various works that are or might be the subject of
16 copyright disputes. Persistent access control
17 technologies threaten this practice, and as an
18 educator, I consider this a grave threat.
19 Education is about free ranging inquiry,
20 full stop. We do not require that our students
21 apply for permission to read, view, and evaluate
22 original source material lawfully acquired by the
23 university any more than we require them to apply
24 for permission to think.
25 I do not consider it an exaggeration to
26 say that the loss of the ability to use lawfully
PAGE 29
1 acquired copies or phonorecords representing the
2 full range of copyrightable subject matter in any of
3 the ways permitted by Sections 107 and 110 would
4 cripple the educational process.
5 Regarding what is necessary to show
6 likelihood of, ``adverse effects,'' the copyright
7 industries in their joint reply comments make much
8 of the House manager's statements purporting to
9 require a standard of proof far higher than that
10 which obtains in administrative proceedings
11 generally.
12 But as Arnie Lutzker has explained, that
13 clearly is not the law. If Congress, the full
14 Congress, had wanted to subject this proceeding to
15 such an anomalous standard of proof, it would have
16 said so in the statute. There remains the
17 substantive question whether access controls
18 implicate the ability to make noninfringing uses.
19 The copyright industries argue that they do not, and
20 for some access control technologies this may well
21 be true.
22 The stated intent of the copyright
23 industries, however, again as Arnie has explained,
24 is to implement persistent controls that require
25 continual reauthorization of access and so
26 technologically conflate access and use.
PAGE 30
1 With respect to these technologies --
2 which are already beginning to be implemented in,
3 for example, DVD movies, video games and some
4 software -- the issue of leeway to make
5 noninfringing uses is squarely joined. The problem
6 exists, however, for any work to which persistent
7 access controls are or are threatened to be applied.
8 As I have just discussed, this type of
9 access control technology poses very real and
10 concrete threats to uses that are both traditionally
11 privileged and vital to research and education. The
12 risk to noninfringing uses exists for all digitized
13 works because all such works reside in computer
14 memory simply as an agglomeration of bytes, and
15 access control technologies are portable without
16 limitation to all such works. That is sufficient to
17 show likelihood of adverse effects, and that is all
18 that the statute requires.
19 It is simply no answer to say, as the
20 copyright industries do in their joint reply
21 comments, that the Librarian also must consider the
22 extent to which access controls facilitate uses that
23 are noninfringing because they are licensed.
24 Section 1201(a)(1)(C)'s enumeration of factors that
25 track the traditional fair use factors indicates
26 that these authorized uses are not the uses Congress
PAGE 31
1 had in mind. Only infringing uses require
2 permission in the first place. Proof of a
3 noninfringing use is a defense to charges of
4 infringement. It follows that a noninfringing use
5 must be an unauthorized one.
6 It is worth noting, too, that
7 individuals seeking privileged access to copyrighted
8 works may not be able to avail themselves of the
9 exemption to circumvention provided in Section
10 1201(f) for reverse engineering to achieve
11 interoperability with computer programs that control
12 access to digitized works.
13 The reason that they may not be able to
14 do so is the recent Universal Studios v. Reimerdes
15 case from the Southern District of New York. It is
16 true, as the copyright industries note, that
17 Reimerdes was decided under Section 1201(a)(2),
18 which prohibits trafficking in technologies to
19 circumvent access controls.
20 Nonetheless, Reimerdes is squarely
21 relevant in this proceeding. If Reimerdes is right,
22 another question that is not raised here, then the
23 scope of the reverse engineering exemption in
24 Section 1201(f) is quite narrow, so narrow that it
25 does not extend to the production of devices
26 designed to allow individuals' computers to
PAGE 32
1 interoperate with digital works to which they have
2 purchased lawful access.
3 If the reverse engineering exemption
4 does not authorize this type of interoperability,
5 then the only way of authorizing such
6 interoperability is through an exemption promulgated
7 under Section 1201(a)(1).
8 In sum, there is a strong likelihood
9 that the increasing use of persistent access control
10 technologies will sharply curtail the access
11 privileges that individuals have enjoyed under the
12 fair use doctrine and other limitations on copyright
13 scope.
14 Certainly there is sufficient likelihood
15 to satisfy the civil preponderance of the evidence
16 standard that obtains in administrative proceedings
17 generally. For this reason alone, the Librarian
18 should conclude that the need for circumvention
19 privileges extends broadly across any class of works
20 that may lend value to the research and educational
21 process and which is not otherwise available without
22 technological gateways in the form of persistent
23 access controls.
24 Section 1201(c) clearly indicates
25 congressional intent to preserve fair use and the
26 other statutory limitations on the exclusive rights
PAGE 33
1 of copyright owners. That intent must inform the
2 Librarian's interpretation of the exemption.
3 It bears repeating here that the
4 interpretation of the statute adopted in this
5 proceeding must be a reasonable one. As the Supreme
6 Court has recently explained in the case of FDA v.
7 Brown and Williamson Tobacco Company, what is
8 reasonable is a function of overall statutory
9 context.
10 But there is more. As I have indicated,
11 an interpretation that preserves fair use and other
12 limitations is constitutionally required. In its
13 Harper and Row decision, the Supreme Court indicated
14 that fair use serves as a First Amendment safety
15 valve within copyright law.
16 Other decisions, including Feist and the
17 venerable case of Baker v. Selden, suggest that
18 preserving access to uncopyrightable elements of
19 copyrighted works is required by the policies
20 animating the patent and copyright clause.
21 Simply put, Congress cannot eliminate
22 fair use or extend copyright-like exclusive rights
23 to uncopyrightable components of protected works.
24 For the same reasons, where another interpretation
25 is available, the Librarian cannot adopt an
26 interpretation that would give an act of Congress
PAGE 34
1 this effect.
2 These constitutional considerations,
3 moreover, should inform the assessment of the burden
4 of proof that Section 1201(a)(1) places on
5 proponents of exemptions.
6 I note in passing my belief that the
7 lack of a parallel exemption to the ban on
8 trafficking and circumvention technologies is in any
9 event fatal to the statute's constitutionality.
10 Without such an exemption, any exemptions arising
11 from this proceeding will be available in theory
12 only.
13 In light of the joint reply comments
14 submitted by the copyright industries, it is worth
15 specifying here what my argument is not.
16 First, this is not an argument that
17 circumvention should, ``be shielded from liability in
18 virtually all circumstances.'' So far as I am aware,
19 no member of the library and educational communities
20 has urged this result. What is argued instead is
21 simply that the exemption must be extended to those
22 users and uses that have traditionally enjoyed the
23 privileges of the fair use doctrine and other
24 limitations on copyright owners' exclusive rights.
25 Nor is this an argument that the fair use doctrine
26 or other limitations should, ``provide a defense to
PAGE 35
1 liability for circumvention of access controls.''
2 Quite clearly, Section 107 does not
3 itself afford a defense to the separate cause of
4 action that Congress created in Section 1201(a)(1).
5 However, the record shows that Congress recognized
6 that the new anti-circumvention provision would
7 threaten fair use and other copyright limitations
8 with respect to works protected by access control
9 technologies.
10 Accordingly, Congress authorized the
11 Librarian to craft exemptions to the circumvention
12 ban that are analogous to fair use and rest on the
13 same considerations.
14 I would like to close by mentioning two
15 other constitutional considerations that are
16 relevant in this proceeding. First, the
17 interpretation of Section 1201(a)(1) also must be
18 informed by due process considerations. Although
19 nonprofit libraries and educational institutions are
20 not subject to criminal penalties under Section
21 1204(b), this exemption does not extent to the
22 individuals who constitute their clientele.
23 Enormous vagueness and overbreadth
24 problems would flow from the threat of criminal
25 liability for circumvention in cases where the
26 underlying use is and has traditionally been fair
PAGE 36
1 and privileged under copyright law. This rulemaking
2 should interpret Section 1201(a)(1) to avoid these
3 problems.
4 Second, the persistent access control
5 technologies that are now beginning to emerge
6 generate records of the details of individual access
7 to the technologically-protected work. This raises
8 enormous privacy problems.
9 As I have argued in my published
10 writings, because the records reflect intellectual
11 activity and often associational activity as well,
12 their creation also raises First Amendment concerns.
13 Specifically, the enforcement of criminal penalties
14 against individuals who circumvent access controls
15 to protect their intellectual privacy represents a
16 constitutionally impermissible threat to freedom of
17 intellectual inquiry.
18 Section 1201(i) does not address this
19 problem because it focuses solely on ``on-line
20 activities'' and solely on measures that are not
21 disclosed to the user. But the chill exists whether
22 monitoring is disclosed or not and whether or not
23 the technological measure tracks ``on-line
24 activities'' generally or simply access to a
25 particular work.
26 Specifically, if the institution has
PAGE 37
1 lawful access, that should be enough for record
2 keeping purposes. A well crafted exemption to the
3 anti-circumvention provision should foreclose this
4 privacy threat.
5 As others have noted, this rulemaking is
6 about determining what is necessary to preserve the
7 balance of rights and limitations that copyright law
8 establishes. The totality of the statutory evidence
9 suggests that Congress intended to preserve that
10 balance and the Constitution requires it.
11 Thank you.
12 MS. PETERS: Thank you.
13 Can I, before I turn this over to the
14 rest of the panel, ask a question about the
15 persistent access controls? What I thought I heard
16 you say is that they're starting to come be
17 available. Are libraries dealing with controls at
18 this point? And if so, how are they dealing with
19 them?
20 MR. NEAL: We have not experienced as
21 yet in the electronic resources that we are
22 acquiring specific technological controls that
23 enforce that persistence requirement, but we are
24 beginning to see in the licensing relationships with
25 publishers a time limitation or a period of
26 available use set in place.
PAGE 38
1 My position is that the things that
2 we're seeing on the horizon in terms of licensing
3 issues are harbingers of the types of technological
4 issues that we're going to have to deal with down
5 the road. What is now a negotiation process will,
6 in fact, I believe become a technologically
7 controlled reality.
8 So the time frames that are defined for
9 access to information could translate into takedowns
10 of information, takedowns of capabilities through
11 self-help interventions.
12 And it was very clear to me as I worked
13 through the UCITA negotiations in Maryland, although
14 we neutralize that particular aspect of it, offered
15 at least some technological capabilities to the
16 copyright owner side that could create some
17 limitations in terms of the ongoing use of
18 information by faculty, students, and library users.
19 MR. LUTZKER: And what I would add is we
20 have some discussion of this in the initial library
21 comments at page 13 and 14, and I'm not the
22 technical wizard to explain all of these things, but
23 part of what I see -- and I think we may all
24 experience this -- is we do our own computer work.
25 There's both software and hardware that
26 can require, you know, payments at various points.
PAGE 39
1 So you're doing something, and then if you want to
2 advance forward you may have to enter your credit
3 card to continue to either receive something; the
4 billing may be quite clear, or there may be issues
5 that are raised.
6 The question is you've had access. You
7 now have to pass another hurdle in terms of a
8 payment arrangement that then maintains the access.
9 You don't make the payment; access is then broken
10 off.
11 Now, the question is: having had
12 initial access, which may have required payment of
13 some sort, but not for the additional payments that
14 are in play, what happens to that initial payment?
15 How do you take advantage of having had access
16 lawfully in some way where your use then becomes
17 monitored and then re-access based upon additional
18 either payments or other criteria that are in play?
19 Again, my recollection is in discussing
20 these provisions in Congress, the sophistication of
21 this stuff was anticipated without going into an
22 enormous amount of details, and as we get closer to
23 and as things advance, I mean, I'm sure there's
24 going to be more technically advanced in the next
25 years, but this seems to be a developing trend where
26 access gets turned on and off based upon certain
PAGE 40
1 activities.
2 PROF. COHEN: I would add that I think
3 we actually do see a version of this already, and a
4 good example is: think about using Westlaw or Lexis
5 to do research. If you are surfing around on
6 Westlaw or Lexis looking for things relevant to a
7 research project and you come across something that
8 might have some relevance and you're not quite sure
9 what to make of it, you have basically two choices.
10 One is to print it out or download it or otherwise
11 create a fair use archival copy, or in the
12 alternative, flag it and live with the possibility
13 that you may at some future time need to go back and
14 look at that source, whatever it is, again -- which
15 would mean, according to the access interpretation
16 that's advanced, that you're requiring a separate
17 act of access.
18 Now, imagine a world in which that
19 separate act of access creates a new fee either for
20 you or your institution. That's a dramatic shift in
21 the way that research has historically been done.
22 And imagine a world in which you can't create an
23 archival fair use copy for yourself. That is also a
24 dramatic shift in the way that research has
25 historically been done.
26 MS. PETERS: Can I just follow up a
PAGE 41
1 little bit with some of the things that you said?
2 Can I start with you, Arnie?
3 In the example that you used that you
4 were familiar with, is the service that you were
5 using the type of service that you would normally
6 expect to find in a library or is it a different
7 type of service that mostly goes to people who are
8 in their home?
9 MR. LUTZKER: I experience it
10 personally, but I can see it existing both in a
11 library environment. A library, you know, is a
12 terminal, I don't know the statistics. They're
13 probably out there about how many people who don't
14 have computers at home go and use libraries as a
15 principal basis, and they then -- they function in
16 that context as if they were home, if you will, when
17 they're in the library.
18 But I think it applies both to
19 individuals in their private work capacity,
20 whatever, as well as in the libraries.
21 MR. NEAL: I think location of access
22 might not be the appropriate question because a lot
23 of library users are accessing library provided
24 capabilities in their homes. So the location of
25 use, I think, is not the relevant, may not be the
26 relevant question. I think more important is the
PAGE 42
1 sustained and legitimate use of that information
2 without the fear that it's going to be taken down,
3 without the fear that there are going to be
4 unnecessary interventions into your computer, and
5 without the fear that you're going to have an
6 escalating series of costs that you're going to have
7 to pay in order to progress through the information.
8 MS. PETERS: And you were the one who
9 talked about the time access. Were you talking
10 about the fact that like certain CD-ROMs, you get
11 them for a year; you get them for a month. Based in
12 the software after that period, there no longer is
13 access, or alternatively, in a contract you
14 basically have paid for this service for a year, and
15 at the end of the year -- okay.
16 With regard to the CD-ROMs and at the
17 end of the year that's the end of it, what, if any,
18 are the alternatives? Can you buy the equivalent of
19 the book material and not have limitations on it or
20 on-line access in which you have more control over
21 when it would expire?
22 MR. NEAL: I think this is obviously a
23 very complex set of issues that is being redefined
24 in many ways by the technological capabilities, but
25 the whole issue in contract arrangements between the
26 actual purchase and ownership and, therefore, the
PAGE 43
1 ability to do certain things with information as
2 compared with sort of the rental licensing
3 environment in which a lot of the electronic
4 information that we're using is now managed, I
5 think, presents a very different time and ownership
6 expectation within a library setting.
7 And because of the hundreds of
8 thousands, legitimately hundreds of thousands of
9 different information transactions, information
10 resource transactions that exist within a library
11 setting, some of which are time dependent, some of
12 which are perpetual and, therefore, under an
13 ownership model, creates an extraordinarily
14 difficult environment not only for the library
15 managers to deal with because of the diversity of
16 access rules that they're going to have to work
17 through, but users shouldn't be expected to have an
18 understanding of that diversity, or confronted with
19 a situation where they don't have uniform, uniform
20 approaches, but very, very different approaches that
21 could maximize into the hundreds of thousands of
22 different situations that they're faced with in
23 using information.
24 So I think that's one principle, rental
25 versus ownership. But I'm concerned about
26 situations where we get technologies that are
PAGE 44
1 chronologically sensitive, and we have that
2 information either loaded locally or we have
3 accessed it through the Web, and there are time
4 frames defined for the use of that information
5 within our environment.
6 Now we do it through some type of proxy
7 or domain controlled environment where things could
8 be taken down and without negotiation, without
9 interaction, maybe legitimately, perhaps
10 illegitimately, and so how do we make sure that our
11 students and our faculty and our users have
12 persistent access to that information when it's
13 appropriate and necessary?
14 MR. LUTZKER: If I could add, the
15 dialogue suggests to me another reason why it's --
16 as you think of a rulemaking, you have to at some
17 point focus on the uses that are made of the work
18 because, that's what fair use is about, but if you
19 take an example where with that CD-ROM, that is, you
20 know, at the end of a year. You can't react.
21 If I wanted to do research into that and
22 pull some things which would be definable as fair
23 use, there ought to be a way to do it in my mind.
24 Exactly how you write the regulatory approach to it,
25 but there ought to be a way to reaccess that work
26 without having to go through perhaps the clearance
PAGE 45
1 process because when you're dealing with fair use,
2 you're not dealing with clearances. You're dealing
3 with individuals acting on their own initiative
4 without prior permissions. There ought to be a way.
5 At the same time, if I wanted to access
6 it so that I could make copies and send it around to
7 friends, that oughtn't be allowed. That's not what
8 the purpose ought to be, and so you have to then
9 look at the intent and the use of users.
10 And another reason why this -- in terms
11 of the impossibility of defining particular classes
12 of work as specific things is just for the very
13 purpose. How do I know? I mean, you can't make a
14 showing in this proceeding about whether somebody
15 with respect to some yet unmade CD-ROM that's going
16 to have a timed use to expire in 2002 which comes
17 into being in 2001; how do you define what the fair
18 use rights are with respect to that particular work
19 now? How do you even establish it?
20 I think you have to deal, again, as I
21 suggested in conceptual terms, that you have to
22 develop standards so that these can then be applied
23 in the marketplace and leave people knowing what the
24 penalties are if they have great exposure. They may
25 exercise these somewhat more gingerly, but you still
26 need to make that available for them if fair use is
PAGE 46
1 going to have meaning.
2 PROF. COHEN: Another thing to consider
3 in evaluating the time limited CD-ROMs, for example,
4 versus the availability of alternative paper
5 resources is that having enough paper resources to
6 serve your entire student body and faculty often
7 requires multiple copies, and many libraries right
8 now are being confronted with a choice whether to
9 down-size their print collections and replace them
10 with electronic collections, and they're being
11 encouraged to do so by publishers. Many libraries, I
12 think, quite wisely are not completely getting rid
13 of their print collections, but it might be the
14 case, for example, that you used to have five
15 reporter series to serve all your law students and
16 now you just keep one or two, and if then access to
17 the electronic version disappears, one or two copies
18 at a school like Georgetown with 2,000 students is
19 just facially inadequate.
20 And so there's a question, as Jim said,
21 about content plus functionality that is still very
22 relevant.
23 MS. PETERS: Can I ask you? What are
24 you doing today with regard to CD-ROMs that are time
25 limited?
26 MR. NEAL: We take them down.
PAGE 47
1 MS. PETERS: Okay. So you take them
2 down. Okay.
3 MR. NEAL: Right. We send them back.
4 MS. PETERS: Okay. All right. Can I
5 just ask a question that you brought up? You talked
6 about the functional equivalent and Professor Cohen
7 talked about Westlaw, where much of the material is
8 available in print form as well as electronic form.
9 When you talk about functional
10 equivalent, if there is an electronic version that
11 has search and retrieval capability but the exact
12 same material is available in print format, you just
13 have to do a lot more work to get at the same
14 information; where does functional equivalency enter
15 in that equation? Are you saying you've got to have
16 access to the electronic?
17 MR. LUTZKER: Okay. I know that if I'm
18 wearing an advocate hat, I know some in the library
19 community would view that as a critical component of
20 the work itself. I think from a copyright point of
21 view, conceptually I think there ought to be a way
22 to separate the work from these other software
23 advantages that come with the work.
24 I don't know if that's -- I mean, you
25 know, we're heading into an area where the
26 functionality of the software which adds to search
PAGE 48
1 and retrieval information. That's value added by
2 the publisher, let's say, and is distinct from the
3 work, and so technically I would say I want to have
4 access to the work, and several possibilities. One
5 is there may be the ability to bypass and substitute
6 your own, off-the-shelf functionality searching
7 thing that can enable you to achieve whatever search
8 functions you might want to have, but you're not
9 going to use Westlaw's search system. You get the
10 ABC search system to preload on your system.
11 I don't know technically if that's
12 feasible or not. I think it becomes -- I would say
13 that I don't think the functionality of the search
14 system should be the ultimate block to access to the
15 work. I think there's a higher motive in being able
16 to access the work, and if it's inseparable with the
17 searching functions of this DVD or the devices, I
18 think that may be, again, part of the fair use of
19 that particular work.
20 MS. PETERS: This is where you were in,
21 i think your quality of information is content plus.
22 MR. NEAL: Absolutely. I think the
23 environment in which we're operating, there are a
24 number of points I would make here.
25 First, I think work and its quality is
26 increasingly defined not just by the information it
PAGE 49
1 provides, but what you can do with that information,
2 the functionality of that information, and I think
3 we over time will not be able to divorce those
4 elements because we're able to provide students,
5 faculty, and library users with a level of access
6 and a level of usability that is critical, becomes
7 increasingly critical to their work.
8 Secondly, analog equivalents do not
9 allow me -- and I'm not a lawyer, but we're driving
10 over here into some interesting other areas that
11 we've talked about, and that is my ability to serve
12 a global student and faculty. An analog equivalent
13 does not enable me to deliver that content and
14 functionality in appropriate ways, in legitimate
15 ways to a user community which is defined globally
16 rather than within the walls of my building. And so
17 I need to be concerned about that issue as well.
18 MS. PETERS: So you're talking about
19 delivering content beyond the walls of your library?
20 MR. NEAL: That's correct.
21 MS. PETERS: And let me just --
22 MR. NEAL: In noninfringing ways.
23 MS. PETERS: Noninfringe. I'm trying to
24 figure out "in noninfringing ways" how you're going
25 to deliver pieces of information?
26 MR. NEAL: Yeah, sure.
PAGE 50
1 MS. PETERS: As opposed to entire works?
2 MR. NEAL: That's correct.
3 MS. PETERS: Throughout the globe.
4 MR. NEAL: If I have students who are
5 working in our campus at Nanjing, China, I have to
6 be able to provide them with legitimate and
7 noninfringing access to information that I am
8 purchasing and licensing at Johns Hopkins
9 University.
10 MS. PETERS: When you use "information,"
11 it's, I take it -- I shouldn't take anything.
12 Excuse me. What kind of information would that be?
13 MR. NEAL: Published information.
14 Information captured in books, journals, other forms
15 of expressions of information.
16 MS. PETERS: Okay. One last question.
17 Arnie, you talked about being intricately involved
18 in the crafting of this provision, and there's so
19 much focus on you should focus on the use that's
20 being made of the copyrighted work. Could you just
21 give me an example of what you think a particular
22 class of work would be under what the Commerce
23 Committee and maybe the Congress intended?
24 MR. LUTZKER: Well, I think there were
25 really two threads that were going on, and the way
26 the language was drafted, a lot of back and forth
PAGE 51
1 between different messengers moving back and forth.
2 Conceptually I think that a particular
3 class of work would be, as I said, it would be
4 something distinguished from categories of work. So
5 it would cut across. It could be any type of work
6 or group of works.
7 I suppose the paradigms would be sort of
8 a couple of examples. One is that there are digital
9 works, DVDs, and I don't know whether DVDs or CD-
10 ROMs at that point. If there were print analogs to
11 CD-ROM text, that could be viewed as works that you
12 have access to in alternative, assuming they're
13 readily available, in alternative form.
14 If they are not, if a work only exists
15 in a digital format and does not exist in a readily
16 available call it print format, but it might be
17 other analog format, that then would begin to
18 constitute classes of works that would be available
19 for these purposes.
20 Beyond that, and this goes to the fact
21 that we were, again, focusing on the merger of the
22 uses that were being made of the works, I think,
23 certainly as I was thinking through the language
24 that we were trying to achieve; the goal was to try
25 to preserve in an environment where both either
26 civil or criminal penalties would attach, to
PAGE 52
1 bypassing certain technology, that you could
2 preserve works in a way that maintains copyright
3 principles.
4 Therefore, broad concepts of digitally
5 available work sold to libraries, as an example,
6 could constitute a particular class of works.
7 Personally I think that may be too broad a concept,
8 but it was one that was discussed.
9 The particularity of the class, again, I
10 think becomes, as one understands the necessity of
11 interpreting the statute in a responsible way, and I
12 think Julie's statement really hits home because we
13 were incredibly troubled with the resolution that
14 was achieved because we did not feel that it clearly
15 understood what the purposes of what they were
16 trying to achieve.
17 In other words, preserving the fair use
18 and rights limitations in copyright law which are
19 use oriented, and that if works are available in the
20 marketplace -- this is the simple concept -- if
21 they're available in the marketplace, you can go in
22 a bookstore and pick them up, then you don't have to
23 break through to access them.
24 If works are not available in that
25 format or the functional equivalent, then you should
26 have the ability to access them.
PAGE 53
1 MS. PETERS: Okay. I'm going to stop.
2 David.
3 MR. CARSON: Let me start with you,
4 Arnie. I want to make sure I understand what you
5 just said. Are you saying that you were troubled by
6 the ultimate language in the statute because it
7 wasn't clear that it was, in fact, focusing on the
8 types of uses that ought to be permissible, or was I
9 misunderstanding what you said?
10 MR. LUTZKER: No. I think the trouble
11 that I had, and as I said, I think Julie's statement
12 gives clear summary to many of the concerns that we
13 had at the time. I think there remains ambiguity
14 and vagueness throughout the language as to what is
15 this particular class of works. I think that where
16 you have a criminal statute, and I can say that, you
17 know, in terms of my interpretation it's not a
18 binding interpretation obviously, but where it can
19 apply to uses, it can apply to particular categories
20 of works that are not otherwise available, you know,
21 the format.
22 The clarity of the language just isn't
23 there. What constitutes circumvention, what
24 constitutes a technological measure, it's been
25 suggested as we noted in our comments; it has been
26 suggested that a library card constitutes a
PAGE 54
1 technological measure that protects works, and that
2 certainly wasn't broached during the course of the
3 discussions, but I can understand how people could
4 reach that conclusion.
5 And I think the ambiguity of the terms
6 throughout was a persistent problem.
7 MR. CARSON: Professor Cohen, can you
8 tell us specifically what exemptions you would like
9 us to recommend to the Librarian that he find ought
10 to be or will be created pursuant to Section
11 1201(a)(1)?
12 PROF. COHEN: What I would recommend,
13 and excuse me because I'm fishing around in my stack
14 of papers, is quite closely in line with what has
15 already been put forward by Peter Jaszi and by Arnie
16 today.
17 In Peter's testimony, he talked, I
18 believe, about ``works embodied in copies which have
19 been lawfully acquired by users who subsequently
20 seek to make noninfringing uses thereof.'' To that I
21 would add works access to which has lawfully been
22 acquired by the user or the user's institution
23 because institutional access followed by subsequent
24 unmetered use by users who are affiliated with that
25 institution -- educational and research users -- is
26 a historic and, I've argued, constitutional part of
PAGE 55
1 what fair use requires.
2 The list of factors elaborated by Arnie
3 similarly goes to the question of whether initial
4 access was lawfully acquired by the user, and to
5 that again I would add "or the user's institution."
6 Sometimes the status of the user as an
7 authorized affiliate of an institution will be quite
8 relevant, and I believe that is underscored by Jim's
9 point about his students in China who are
10 nonetheless affiliated with Johns Hopkins and,
11 therefore, by paying tuition are entitled to the
12 right to access resources held in the university's
13 main library. And then the further factors
14 elaborated by Arnie, I believe, are also valid and
15 should be part of the definition of the exemption
16 that is authorized:
17 ``Whether the content is identical to or
18 the functional equivalent of a version readily
19 available in the marketplace.'' I would just
20 underscore that as to that factor we should not be
21 talking simply about whether there's some
22 substitute, some other work available in the
23 marketplace from some different publisher. Sometimes
24 there isn't substitutability for informational
25 works. Imagine if you couldn't get, for example, a
26 Nimmer on Copyright. What would you do?
PAGE 56
1 I suppose some competitors to Nimmer on
2 Copyright might wish for such a world, but in my
3 opinion, if I couldn't have access to that work, it
4 would be fatal to what I do every single day.
5 ``Whether the controls employed restrict
6 uses in the guise of access.'' I suppose if I take
7 off my advocate's hat for one second and put my
8 academic's hat back on, the distinction between
9 access and use is metaphysical, right? And that's
10 the problem that we're all sitting here scratching
11 our heads about.
12 But nonetheless, Section 106 does not
13 give the right to control all uses and, therefore,
14 it's a distinction that has to be made in some way
15 whether or not we think it's a strange thing to have
16 to do.
17 This gets back to the question: is there
18 a right to access the value added, for example,
19 after there's been takedown, and does that mean
20 there should be some right to access the CD-ROM
21 version as opposed to the print version of the work?
22 If we say that there is not, in my view
23 that leads inexorably to a pay-per-look regime, and
24 we need to consider when we're talking about the
25 value added that the institution, the user's
26 institution, has already paid an enormous sum of
PAGE 57
1 money for access to the electronic resource -- in
2 many cases an enormous sum of money over and above
3 what it would have to pay for access to the print
4 resource.
5 Now, as a matter of policy and
6 tradition, within the sectors of our society that do
7 public education, that do research, that do library
8 services, we have not had metering and pay-per-look
9 below the institutional level. If the institution
10 purchases lawful access, that has been good enough,
11 and that has fostered an incredibly rich and vibrant
12 educational and research culture, and I've argued
13 that constitutional values underlie that system.
14 I would argue that absent very, very
15 clear indication that Congress intended to change
16 that entire sector of our society and to eradicate
17 that entire culture, there should be a strong
18 presumption to retain it.
19 MR. LUTZKER: And I would just add that
20 the solution of the fair use debate that devolved
21 was one that to some significant degree was a punt
22 by Congress. Congress was looking at this issue.
23 They wanted to maintain -- at one level there were
24 these two competing balances, and they felt that the
25 capability of putting resolution of these types of
26 issues in an expert agency that has familiarity and
PAGE 58
1 sensitivity to the broad range of copyright concerns
2 does provide at least a forum for a more full and
3 complete analysis, which was from my perspective not
4 given certainly in development of this particular
5 language.
6 There was a feeling that by establishing
7 these general standards and then giving the agency
8 the opportunity with its expertise in copyright, to
9 maintain assurance that the fair use aspects of
10 this, which is really the paramount question why
11 we're here.
12 How do you maintain fair use and the
13 related protections in light of the new prohibitions
14 which will come into play? And I think that there
15 was a sense of discretion that would be afforded the
16 agency.
17 And some of the vagueness of the terms
18 which aside from whether you can do your job
19 effectively in that context at least reflects the
20 fact that by putting in an expert agency, the
21 sensitivity to fair use and how it actually plays
22 out in the marketplace is a thing that they felt
23 they would get by giving you this authority.
24 MR. CARSON: You've made the case,
25 Arnie, and I think it's probably fair to say you all
26 agree with this, that class of works, well, first of
PAGE 59
1 all, you say it cuts across categories.
2 Second, I think I heard that in defining
3 a class of works, one of the ingredients of that
4 definition would be the nature of the particular use
5 that is being made of the work, and that that ought
6 to be folded into our definition of a class of
7 works.
8 Are you all with me so far? Is that a
9 fair statement of how you look at the situation?
10 MR. NEAL: Yeah.
11 MR. CARSON: All right. It's fair to
12 say that we recognize the issue; we share the
13 concern; we ask the question. One of the many
14 questions we ask at our notice of inquiry was can
15 you define a class of works by reference to the
16 nature of the use, and if you can't, we recognize
17 the problems that that might create. Certainly from
18 your point of view it does create problems.
19 But I guess I still need to be persuaded
20 that that really is what is encompassed within the
21 term "class of work." So when I read those words on
22 the page, "class of works," intuitively I don't
23 think, "Well, that must refer not only to the type
24 of work, but to the type of use."
25 When I look even at the Commerce
26 Committee report language, which is the language you
PAGE 60
1 are certainly pressing upon us, I see it saying that
2 the particular class of copyrighted work should be a
3 narrow and focused subset of the broad categories of
4 works of authorship that is identified in Section
5 102 of the Copyright Act.
6 All the guidance I see in black and
7 white in front of me, whether in the statute or in
8 the legislative history, seems to be talking about
9 either, well, not necessarily the categories of
10 works that we find in Section 17, but subsets of
11 those categories which seems to be telling me, all
12 right, you start with those categories and then you
13 subdivide them, not that you cut across them.
14 I still need to hear more, I think, to
15 be persuaded that we can do that. I understand why
16 you want us to do that, and I may be sympathetic to
17 that, but I'm not sure I've heard the case for why
18 we have that much discretion.
19 MR. LUTZKER: Well, I think
20 fundamentally if you also look at the criteria that
21 was laid out, and I think again I will refer back
22 and forth to some of Julie's comments as well; I
23 think it's inherent in the understanding of fair use
24 and the limitations that are set in copyright law to
25 say a particular class of works constitutes DVD
26 disks that contain original films that are not
PAGE 61
1 available in any other format. Okay?
2 I mean, to say that fair use cannot
3 apply to -- let me back up. So you could say in one
4 context that those then constitute a class of works.
5 Okay? You can go through, but the predictability of
6 what those classes are in a rulemaking context is
7 virtually impossible in my view.
8 As I suggest, there are millions and
9 millions of works. If the burden of Congress to say
10 to maintain fair use with respect to works that have
11 access controls associated with them, as more and
12 more works have access controls, to say the burden
13 of proof is to establish with respect to each
14 particular work that you've got to make a proof now,
15 looking prospectively for three years, you're
16 basically going to be in a situation unless you take
17 this approach that you will, in effect, deny the
18 fair use concepts that apply to these works.
19 I think there is a policy inconsistency
20 with taking that narrow approach that you are stuck
21 in a rut to say a particular class must only be
22 specific categories, works.
23 MR. CARSON: Well, why did Congress
24 choose the language "particular class of works"?
25 Couldn't it have done a much better job making clear
26 what it wanted to do if what it wanted to do is what
PAGE 62
1 you're saying it wanted to do?
2 MR. LUTZKER: It could have, and I think
3 we were dealing with a committee that had less
4 longstanding responsibility and expertise in the
5 area of copyright, as this was working out, and I
6 think there was a simplicity applied to many of the
7 principles as we were working through achieving a
8 resolution, and I think the simplest concept would
9 be I've got a DVD, and I've got a VHS tape. They're
10 the same film. You don't have to break through any
11 DVD content controls if you can get the videotape.
12 That would be a simple paradigm.
13 But if the DVD constitutes a materially
14 different version than a VHS tape, it has new
15 material or however one defines the edit element.
16 Then in that context, that could constitute a
17 particular class. I think that was in one level
18 what was going on.
19 At a deeper level, at a deeper level,
20 there was a fundamental desire to preserve fair use
21 and other rights principles in the context of this
22 sort of interim period, and there was a fundamental
23 desire to preserve this going forward for research
24 and library and fair use purposes.
25 And as you understand what fair use is
26 about, fair use is use oriented as opposed to work
PAGE 63
1 oriented, and there is an inherent inconsistency,
2 and as Julie suggested, unless you interpret it in a
3 way that recognizes fair use is use based, not work
4 based, then you're left with a dilemma.
5 But I think the resolution that you can
6 apply is that it is a use based functionality, and
7 that particular classes can come forward based upon
8 standards that you can lay out and that the people
9 can then apply during the course of the next three
10 years.
11 PROF. COHEN: Let me just build on what
12 Arnie has said. Absolutely, it seems clear from the
13 language of the statute that there was an intent on
14 the part of Congress to preserve fair use and other
15 limitations.
16 Something else that seems relatively
17 clear to me, and when I teach this statute to my
18 class, I have been known to say this, is that
19 Congress didn't really want to get that much more
20 specific about class and left you with that
21 thankless task, and that's why we're here.
22 So we are talking then, at bottom, about
23 canons of statutory interpretation and about rules
24 that govern agency interpretation of statutes. At
25 bottom, the question of what ``class'' means within
26 the framework of the statute or whether there are
PAGE 64
1 constraints on your interpretation of what ``class''
2 means within the statute is going to be a question
3 of law to be decided by an Article III court, and it
4 would be nice if that you had that in front of you.
5 But, of course, you don't, and so then
6 the question becomes: within the overall statutory
7 context what is a reasonable interpretation of what
8 "class" means, and it is clear that, for example,
9 Congress did not say it has to be a specific class
10 within a specific category, singular, of 102(a)
11 works. It said specific classes within the
12 categories as a whole, "categories," plural.
13 MR. CARSON: But why refer to the
14 categories? Are the categories irrelevant? And if
15 so, why refer to them?
16 PROF. COHEN: Well, why not refer to
17 them? The categories don't seem to have been the
18 primary criterion for defining what's a class.
19 Class is not defined, and Congress could easily have
20 defined class with reference to a particular
21 category. It didn't choose to do so.
22 So you're left with the question: what
23 clues does the statute and what clues does the
24 legislative history provide about the meaning of
25 this word "class," and you're obligated to do or,
26 rather, not to do what would be unconstitutional and
PAGE 65
1 your obligated to consider not just the specific
2 words of particular class of works, but to consider
3 the overall statutory context which includes Section
4 1201(c) and includes Section 107 and the other
5 limitations on Section 106 exclusive rights.
6 MR. LUTZKER: David, if I could --
7 MR. CARSON: You can, but I think Neal
8 had wanted to say something.
9 MR. NEAL: I just want to say I'm always
10 very anxious about commenting in these environments
11 for fear of being naive or uninformed about some of
12 these legal questions.
13 MR. CARSON: You can join the rest of
14 us.
15 MR. NEAL: But I think there's a related
16 point here that I need to make from the world in
17 which I live, and that is "works," at least as I
18 understand them, are losing their relevance. Works
19 are defined increasingly by not just what they are,
20 but what they connect to, and therefore, we have a
21 body of information that might be a grouping of
22 works, but that is a dynamic phenomenon that brings
23 lots of different media, categories, classes of
24 materials into an interplay which I think defines
25 increasingly the current and future information
26 environment in which users work.
PAGE 66
1 So what is a work may be related to the
2 definition of class and category.
3 The second phenomenon is one in which I
4 think information intermingles in collections of
5 information. So whereas we may have had a journal
6 and a book and a film and a map, those now become
7 part of a whole which may be a new work, and the
8 media, the media of expression, the media of
9 distribution becomes the collection and not the
10 individual works that at least in our historical
11 view make up that collection.
12 So I don't know if that relates to what
13 we're talking about here, but those are real
14 phenomena that we experience in our world.
15 That is, works may only have effectively
16 been defined in terms of what they have links to,
17 which is a dynamic phenomena.
18 MR. CARSON: I know that and I follow
19 that, and I understand that that's the point of view
20 that you would be looking at or the way you'd be
21 looking at it, but I guess I'm not sure where that
22 leads us.
23 Are you --
24 MR. NEAL: Well, I'm trying to
25 understand your debate over issues of class of
26 materials and categories of materials, and I hear
PAGE 67
1 responses that talk about a work, and what I'm
2 saying is that increasingly in the world in which my
3 students and faculty operate, they're not working
4 with works. They're working with information that's
5 linked to other information. Does that become the
6 new definition of work, a work?
7 And where does a work exist within a
8 body of material which we define as a collection
9 published on line?
10 MS. PETERS: What I'm hearing is that
11 the world is changing, that the model that we used
12 before where you had books and you sold books was an
13 old model, and we're really moving into an entirely
14 different environment where information is dynamic
15 and constantly changing.
16 And what we're responding to in some of
17 this is that different business models are growing
18 up to handle that different dynamic nature of the
19 way we make information and entertainment products
20 available, and yet what I sometimes hear from you is
21 but we shouldn't be changing the model. We should
22 be modeling it much more on we used to sell books.
23 It was an outright sale.
24 MR. NEAL: You hear me saying that?
25 MS. PETERS: No.
26 MR. NEAL: Oh.
PAGE 68
1 MS. PETERS: I thought I heard this
2 panel saying that we're moving to a licensing
3 regime, and that's really not necessarily a good
4 thing.
5 PROF. COHEN: Well, I could point you to
6 what the Supreme Court said in Twentieth Century
7 Music v. Aiken.
8 MS. PETERS: Aiken, yes.
9 PROF. COHEN: Which I'm sure you know
10 better than I do, which is that when technological
11 change makes it a new world, the Copyright Act
12 should be construed in light of its fundamental
13 purpose. I think what you're hearing us say is that
14 the shift to a pure pay-per licensing regime is
15 absolutely fundamentally inconsistent with that
16 fundamental purpose.
17 MS. PETERS: I hear that, but I meant I
18 also thought I heard a shift to licensing in
19 general. There's a difference between licensing and
20 licensing pay per view.
21 MR. NEAL: I agree with that.
22 PROF. COHEN: Absolutely.
23 MS. PETERS: Okay.
24 MR. NEAL: And I guess what I would
25 argue is that the constant -- regardless of what the
26 business model is, regardless of what the format of
PAGE 69
1 the information is, given the nuances in the law
2 about that, and regardless of the way a work is
3 defined or packaged or linked, the fair use element
4 must be, in my view a constant.
5 MS. PETERS: Okay.
6 MR. LUTZKER: And, David, let me return
7 because I think your concern is obviously a key
8 concern that I want to persuade you about. Okay?
9 If you look at 1201(a)(1)(B) which is
10 where this all stems from, it speaks about the
11 prohibition is not going to apply to persons who are
12 users of a copyrighted work. Okay. So we start out
13 with the statute looking at use of a copyrighted
14 work.
15 It then speaks of "which is in a
16 particular class of work." So in other words, there
17 is a narrowness that they perceive in some fashion.
18 How do we narrow?
19 Now, class is not a word that is defined
20 in the Copyright Act, and Congress didn't do a good
21 job of defining it, but they gave you the
22 responsibility of defining it, and what I would
23 suggest is that if you continue in this concept,
24 we're looking at the user of a copyrighted work.
25 This work is in some grouping of works. It's in a
26 particular classification of works where the user
PAGE 70
1 has been adversely affected in making fair use or
2 other uses of that work that are otherwise permitted
3 under the statute.
4 Use permeates the concept of the
5 particular class of work. I mean, the particular
6 class is the generic. You're really focusing on
7 what the specific copyrighted work that the user
8 wants to make use of, and to be assured that this
9 work is within a grouping of works that will
10 facilitate fair use because otherwise the statutory
11 functions are being defeated.
12 And I would submit that use is inherent
13 in the concept, and that's really -- you know, in
14 those days trying to sort of work through this
15 concept in both the political and other context, I
16 mean the language is -- the best guide for what the
17 language is is first you go to the statute, and then
18 you figure out legislative comments, and people, you
19 know, will make their own statements.
20 Committee reports are obviously
21 important, and I would take Julie's course on
22 understanding all of the legislative history, but
23 use is absolutely dead center of what this is about,
24 and if you try to say, "I want to define a
25 particular class as National Geographics that are no
26 longer available in some fashion," you know, you're
PAGE 71
1 going to have millions of different things that
2 you've got to look at and nobody, I would submit,
3 ought to be forced to come forward now and say how
4 I'm going to be adversely affected in the next three
5 years in being able to access certain types of
6 works.
7 It can't be done. It is an impossible
8 task, and I don't think that this was created -- I
9 think this was created in good faith to create a
10 solution to a real problem, to a real dilemma that
11 both the Commerce Committee took the bull by the
12 horns and they wanted to move forward with this.
13 They wanted to create a meaningful opportunity for
14 fair use to remain available where certain works are
15 protected by technology.
16 And unless you take a use orientated
17 approach then you're going to have a list. You'll
18 publish it in the Federal Register. "The following
19 are 25 particular classes of works that are okay,"
20 and then you're saying everything else that's
21 protected by these measures are not, and I think
22 that destroys with respect to everything that is not
23 in this listing of 25 titles or categories,
24 whatever; it destroys the ability of researchers
25 like the kids in their classes to study and use the
26 works as the copyright law intends.
PAGE 72
1 MR. CARSON: So what exemptions do you
2 propose be published in the Federal Register?
3 Supply me with the language if you can.
4 MR. LUTZKER: Well, I tried to. In
5 other words, I think that the particular class, and
6 again, I think, and I'll make a comment on
7 Marybeth's. Licensing is not only not going to go
8 away. It's here to stay.
9 The issue, in part, is a leveling of the
10 playing field. This statute, as it was being
11 proposed and propounded and worked through, it was
12 understood to create a seismic change in the way
13 copyright law was going to be perceived because if
14 you could establish an access barrier before
15 anything else, it became a crime in putting aside
16 the exception for libraries and educational
17 institutions; looking at it from the individual
18 perspective, it's a crime to access works without
19 this permission. Then that's a seismic change
20 because as has been discussed, I mean, you've got
21 licensing models popping up all over the place.
22 But what Congress is saying is we want
23 to preserve fair use. These have important
24 constitutional copyright practical purposes,
25 creativity and the like. We want to preserve it.
26 How do we do that?
PAGE 73
1 We're going to allow some periodic
2 review, and it's not going to be a one time review.
3 It's going to be periodic. We're going to allow
4 some periodic review, and that will assure the
5 maintenance of fair use and these other exceptions.
6 And I would submit that if you take a
7 use based approach -- this has been suggested
8 whether it's Peter Jaszi's language or things that I
9 have or that Julie has suggested -- if you do that,
10 it allows the negotiation process to proceed in a
11 fair manner because it does create a degree of
12 ambiguity as to whether this particular work can or
13 cannot -- the technological measures on a specific
14 work can or cannot be bypassed.
15 It puts the burden on the user to
16 establish justifications if they are ever challenged
17 in court, and I would submit also that the criminal
18 provisions here elevate this to a high degree, and I
19 don't think that particularly with education that
20 will be going is, that is going on right now and
21 will continue to go on, people will have a better
22 understanding of what this all means, and they will
23 enter upon that warily. They'll know if they're
24 bypassing something and put aside the question of
25 how you can figure out.
26 You could tell me I could bypass
PAGE 74
1 anything, and I wouldn't know how to do it. We've
2 talked about that. How the marketplace will
3 accomplish this is a question you don't have to
4 resolve, I guess, but people will exercise this with
5 some wariness now, but by giving it a use
6 orientation, you at least allow the possibility that
7 a particular work can be subject to fair use.
8 I mean you have works that are not yet
9 in being. You have works that are going to be
10 created in 2001 and two and three, and no one can
11 show adverse effects with respect to things that
12 aren't even in existence. How do you deal with that
13 over the next three years?
14 You can't suspend fair use. You can't
15 suspend educational uses that are in the statute now
16 for three years with respect to those specific
17 works. The dilemma, and I don't necessarily see it
18 as this great big dilemma because I think because
19 the term is not clearly defined in legislative
20 history and the statute, they're giving you, the
21 agency, the ability to define it the way you deem
22 appropriate.
23 You may be second guessed in the court,
24 and you may be stuck with a statute that has such
25 constitutional infirmities that there's no hope
26 anyway, but all you can do is give credibility to
PAGE 75
1 the existing limitations which have been hard
2 fought, judge imposed or whatever over the past 50,
3 100 years, and I think use becomes the pivot around
4 which you can make sense of this because, let's face
5 it, it's hard to make sense of some of this.
6 MR. CARSON: Let's go to a concrete
7 situation that we've had some discussion of and one
8 that's a very simple one that we can all get our
9 hands around, I think, which is the CD-ROM that has
10 an expiration date. It worked up until yesterday,
11 and then all of a sudden yesterday it stopped
12 working.
13 In the context of this rulemaking, what,
14 if anything, do you propose that we do to solve the
15 problem if there is a problem created by that
16 situation?
17 MR. LUTZKER: I don't think you ought to
18 deal specifically with that in the sense that if an
19 individual CD-ROM has now expired, okay, it's
20 expired. You know, you can figure out how to break
21 through or bypass the measures that block access to
22 it. If you want to make a fair use of that, you
23 should be able to, in my view. Okay? It's a
24 copyrighted work. The statute says copyrighted
25 works are subject to these provisions. You should
26 be able to now.
PAGE 76
1 Are you committing a crime by accessing
2 that work? The answer has to be based upon how are
3 you going to use it. As I said before, if you want
4 to access it so that you can copy it and send it to
5 all of your friends, that could be copyright
6 infringement today, but it could also be a violation
7 of the access requirements, and it could be a
8 criminal violation under this statute.
9 However, if you want to pull out a
10 paragraph from that CD-ROM for purposes of a
11 research paper, is that a crime?
12 MR. CARSON: Well, let me make sure I
13 understand. What you're saying is that you should
14 be able to access it subsequently for your own
15 legitimate uses, I think.
16 MR. LUTZKER: Non-infringing uses.
17 MR. CARSON: Okay, but you shouldn't be
18 able to access it so that you can send it to your
19 friends, and you said then that that latter case
20 might be a violation. Circumvention to access it
21 for that purpose might be a violation of Section
22 1201(a)?
23 MR. LUTZKER: Yes.
24 MR. CARSON: Simply because you're just
25 looking at the purpose. I gather that --
26 MR. LUTZKER: Yes.
PAGE 77
1 MR. CARSON: -- is why it made that
2 difference.
3 MR. LUTZKER: Yes.
4 MR. CARSON: Okay, okay. Now, in
5 talking about an access control that simply is an
6 expiration date, for example, or some of the more
7 sophisticated ones we've heard about, to what degree
8 are we seeing that kind of control out in the
9 marketplace that is not consistent with licensing
10 terms that accompany the work, whether those were
11 freely negotiated or whether you really had no
12 choice?
13 In other words, are we seeing
14 technological controls in works that you pay for,
15 you get them even though there's no contractual
16 terms saying that these restrictions are going to be
17 imposed on you? Is that a problem today?
18 MR. NEAL: No, that's not a prevalent
19 situation.
20 MR. CARSON: So generally when you're
21 seeing these controls, they are controls that are
22 essentially enforcing terms that whether you like it
23 or not you've agreed to. Is that a fair statement?
24 MR. NEAL: But there are two provisions,
25 two very practical issues here that I think are
26 legitimate. One is when a work may have been
PAGE 78
1 programmed to be available for a period of time, and
2 what's been programmed into the work does not agree
3 with the license agreement that you've signed. So
4 you have a period of time in which access is not
5 permitted even though you have agreed to that
6 access.
7 And so that is a possibility where you
8 have technology which is not in alignment with the
9 agreement.
10 The second is where there's a payment
11 process, where you agree to pay on a periodic basis,
12 and the work is available for a period of time. The
13 payment gets lost. The payment transaction does not
14 occur in the way that everyone expects it to, and
15 the work comes down even though the payment has been
16 made.
17 Is there still legitimate and
18 appropriate use of that information? Those are
19 practical issue that I think libraries have and will
20 increasingly have to deal with.
21 MR. CARSON: Let's say you just decide
22 to stop paying for it. You have a subscription that
23 says you pay this much every month, but you decide,
24 you know, I've been paying for it for six months,
25 and I just don't feel like paying for it anymore.
26 I've got it here. I should be able to circumvent
PAGE 79
1 now whenever I want to get the information because
2 I'm using the information for research.
3 Is that a situation where you should be
4 permitted to circumvent because you have the
5 physical copy in your possession? You're doing it
6 for a legitimate research purposes. You just don't
7 feel like paying for it anymore.
8 MR. NEAL: I would say that the practice
9 that we would use in my library setting and in most
10 library settings that I'm familiar with is that we
11 would not make that material available any longer.
12 MR. CARSON: All right, but I'm trying
13 to figure out how if we follow what is being
14 suggested here in terms of the exemption that we
15 gave, maybe I'm missing something, but it seems to
16 me that the person who decides I don't want to pay
17 anymore could probably take advantage of the
18 exemption that is being proposed, and if not, why
19 not?
20 PROF. COHEN: Two things about that
21 point. I think the problem that we're having here
22 stems, first of all, from the fact that what we're
23 saying is fundamentally there's a need for questions
24 like that to be decided on a case-by-case basis
25 consistent with the equitable factors that have
26 traditionally informed fair use analysis.
PAGE 80
1 So you might say, okay, on the one hand,
2 suppose somebody whose library discontinued its
3 subscription to this thing ten years ago decides to
4 circumvent the access controls, and it would seem
5 that it would be hard to make a good case for that.
6 Let's say, on the other hand, my library
7 discontinued its access a month ago, and I was
8 citing it for a research project I have in progress,
9 and I really need to continue to check my citations.
10 It would seem easy to make a good case for that.
11 And then there's the vast terrain in
12 between, and it's difficult to say with any
13 precision exactly where in between you're going to
14 draw the line and say where it falls and which acts
15 of circumvention are going to be fair and are not.
16 But I think the point that we're making
17 is that line does not coincide exactly perfectly in
18 a bright line way with the end of the timed
19 subscription.
20 Now, that's not necessarily so
21 comforting, but that brings me to my second point.
22 It's not in anybody's interest for this to happen.
23 Publishers want their works to be disseminated.
24 They want people to have access to and use them, and
25 libraries want their users to have access to and use
26 a broad range of works.
PAGE 81
1 And here what Arnie said before becomes
2 critical. The copyright industries have hammered on
3 the point that the threat of infringement is what
4 keeps libraries honest. I differ with them on the
5 baseline question as to how honest libraries are.
6 In the first place, I think they're
7 quite honest, but as Arnie pointed out, there's a
8 flip side to that: the threat of fair use is what
9 keeps publishers honest and keeps the negotiations
10 on a level playing field.
11 And I would argue that it's critically
12 important and, in fact, vital to the working of the
13 system in a fair and equitable way that Congress
14 intended that that bright line does not perfectly
15 coincide with the end of the subscription, and that
16 bright line is -- excuse me -- that not bright-line
17 is subject to articulation on a case-by-case basis.
18 MR. CARSON: Well, you said something
19 there, and I think it's the underlying theme of your
20 whole response there that's been lurking in the back
21 of my mind as I've been listening to this, and it
22 sounds as though what you're proposing is that
23 whatever exemption we end up with is one that is
24 akin to fair use, and that it relates a number of
25 factors which ultimately a judge will have to
26 determine whether you're within it or without it.
PAGE 82
1 Is that a fair --
2 PROF. COHEN: I think so, and there's
3 nothing unusual in that. Courts interpret
4 regulations all the time.
5 MR. CARSON: Isn't that unusual when
6 you're talking about an exemption though?
7 PROF. COHEN: I'm not aware that it is.
8 MR. LUTZKER: And I would say that it's
9 not. I mean, particularly if you look at the way
10 the statute was formulated, there is a parallel with
11 the fair use provisions when you look at the things
12 that you're supposed to be examining, you know, the
13 availability of the use of the works, the
14 availability of use of works for nonprofit, archival
15 preservation, educational purposes. There's a
16 parallel there.
17 So I think that there was an
18 understanding that this becomes part of the
19 copyright mosaic, and since it is copyrighted works
20 that are protected under the title that are being
21 subject to this access thing that you do want to
22 have the flexibility that's already inherent in
23 copyright law.
24 Let me focus because I know the
25 licensing issue is a real nub of one of the problems
26 that we have to work through with this, and I think
PAGE 83
1 you can say a couple of things.
2 First of all, a contract is a contract,
3 and it's enforceable on its terms, and if somebody
4 has a contract to have access for something for a
5 period of time, that may supersede things that they
6 have under copyright principles and they've agreed
7 to the bargain.
8 Now, there are two types of contracts
9 obviously. There are negotiated ones, and there are
10 the things that you don't negotiate, clip license
11 and the like.
12 And I think that the etiquette as we
13 evolve this area, what you do here will have impact
14 on the etiquette of negotiations during the next
15 several years. You may find that to be a good or a
16 bad responsibility, but I think it will have impact.
17 I don't think the issue is that licenses
18 would be ignored. I think licenses will be
19 enforced. The question is: if someone wants to
20 exercise -- if a license has expired and on the time
21 use concept, I'm assuming the license now has
22 expired. Okay. So I'm not under a license. I'm in
23 this post license period. The question is, what's
24 to be done.
25 And I think if you also view this in the
26 context of a statute dealing with criminality for
PAGE 84
1 certain activities, which is not -- I mean, you
2 know, it could have been just a civil thing, but
3 it's civil and criminal penalties that are
4 associated with this, fundamentally the criminal
5 thing comes up repeatedly because of the concern,
6 legitimate, about piracy and multiple exploitations
7 of works.
8 But at base, if you're looking at an
9 individual behavior, whether you need to impose the
10 criminal sanctions on top of something which would
11 otherwise be arguably fair use, and I think the
12 ambiguity that comes from just creating standards as
13 opposed to saying this specific group of works is
14 now exempt is inherent in, as I said before, in the
15 nature of the beast of what we're dealing with
16 coming down from Congress.
17 But the licensing negotiations that will
18 go forward, and I hear this, too, in terms of there
19 is an undercurrent of concern in what you call the
20 user, library, educational community about license
21 prices going up and the pay for whatever, but I
22 think that you can exercise an impact on those
23 negotiations by what you do now, and if part of what
24 you view is maintenance of a level playing field,
25 that will then play out in terms of license
26 negotiation. It won't dictate specific terms, but
PAGE 85
1 it will have an ability of users to have something
2 to fall back on in the event they can come up with a
3 license.
4 MR. CARSON: I'm not sure you're
5 suggesting this, but are you suggesting that a
6 technological measure that deprives people of access
7 and that is designed to impose licensing terms is
8 not the type of measure that Section 1201(a) should
9 be enforcing?
10 In other words, leave them to the
11 contractual remedy, but they shouldn't be able to
12 ultimately sue you for breaching the technological
13 measure.
14 MR. LUTZKER: Well, they certainly have
15 a contract right. In other words, if you're in a
16 license, you're in a different environment because,
17 by its definition the noninfringing uses we're
18 looking at are non-permissioned uses. If you have
19 permission -- the question is if it's beyond the
20 scope of the license, okay, but the mere existence
21 of the license is a fact which will, in a sense,
22 muddy the use marketplace, if you will -- the
23 absence of a license is the purest condition. If
24 you have a license, it then becomes a set of
25 commitments on both sides, and if the technological
26 devices are designed to assure that the license is
PAGE 86
1 being enforced, I can understand that. I wouldn't
2 suggest that those are going to be what you ought to
3 wipe away.
4 But those are the very same things that
5 impact. If they impact on a licensed user, they
6 also impact on an unlicensed user who may be wanting
7 to make fair use or a post license users who wants
8 to make fair use.
9 MR. CARSON: One final question and then
10 I'll give someone else a chance. I guess I've heard
11 that the kind of exemption you'd like to see is sort
12 of akin to fair use in that it's a number of factors
13 and ultimately maybe a court will have to figure out
14 which side of the line you're on. Isn't that
15 inconsistent with what I'm hearing about the
16 criminal penalties here and the problem that you
17 need to have clear guidance so that people know
18 whether they are crossing the line and engaging in
19 criminal conduct?
20 I think it's a pretty well established
21 doctrine that when you have a criminal penalty,
22 you've got to have a pretty clear definition of what
23 the criminal act is, and what I'm hearing is, well,
24 the exemption should be something that ultimately is
25 determined on a case-by-case basis like fair use is.
26 The judge will decide whether it is or it isn't, and
PAGE 87
1 that to me sounds like something very unusual in the
2 criminal context.
3 MR. LUTZKER: There are criminal
4 penalties under copyright law. I mean, in other
5 words, and people defend: hey, it's fair use. You
6 know, I sold 40,000 copies of Star Wars, and I have
7 fair use.
8 I don't think the mere fact that you're
9 developing -- I think you can do it even though
10 there is criminal penalties.
11 MR. CARSON: Rachel?
12 MS. GOSLINS: I just have a couple of
13 quick questions. We've heard a lot in the past
14 three days about fears of the user community about
15 where these technologies are going and the type of
16 uses that in the future they may be prohibited from
17 making.
18 I'd like for a moment just to focus on
19 the state of the world today, and anybody can
20 answer, but specifically I'm interested in the
21 people who have had experience dealing with both
22 these resources and the protections that are in
23 place today and making clear first that
24 circumventing an access control protection is not
25 today illegal.
26 I'm curious if you find yourself today
PAGE 88
1 in situations where you were forced to circumvent
2 access controls in order to make what you consider
3 fair uses of the work or forego the use. Are there
4 things that you do today that, if they do not create
5 an exemption, will be illegal as of October, the
6 year 2000?
7 PROF. COHEN: I would say this depends
8 substantially on the terms of my institution's site
9 licenses of works that I use in digital form, and
10 this goes back to the example that I gave about
11 Westlaw earlier.
12 It's perfectly possible that I would
13 come across something not a U.S. government work --
14 say, an article -- and want to make a personal copy
15 of it or go back and look at it again. As I
16 understand it right now, my institution's site
17 license doesn't impose a separate fee for me to do
18 either of those things, a metered fee for me to do
19 either of those things.
20 So as it stands today, the answer is no,
21 and if that term changed, then the answer would be
22 yes, and I do not see any significant legal
23 obstacles to that term changing if it were clear
24 that it was all just considered a big access
25 control, and the change could be made with impunity.
26 MR. NEAL: I think that we're working
PAGE 89
1 with an array of technological control systems
2 currently as we access and use electronic
3 information. Those are what I would describe as
4 passive systems. That is, they are domain driven,
5 proxy server driven, password driven that enable an
6 authorized user to get into an electronic file of
7 information and to make appropriate uses of that
8 information.
9 And so that's one arena in which use has
10 been defined, and it's more of the issue of the
11 geography of use than the nature of the use in terms
12 of the application of the technological control.
13 And as I said earlier, and this will
14 harken back to something that Arnie just said, as I
15 look at the types of provisions that we're being
16 asked to accept and which we're increasingly
17 learning how to negotiate in our license proposals,
18 I can see suggestions of where active technological
19 controls will go in terms of the ability to not just
20 embrace users as they enter, but to actually monitor
21 and to act upon inappropriate uses even though in
22 some cases those uses may be defined under fair use
23 as appropriate and legitimate uses.
24 We also find, going back to -- just two
25 more quick points. I believe as Arnie suggested
26 that what is contained in law is very influential in
PAGE 90
1 terms of the ability of libraries and universities
2 and users to negotiate effectively with copyright
3 owners. What is respected and understood in law
4 gives us a leg up in terms of advancing the
5 interests of our users.
6 A related concern, I think, is the cost
7 of managing this environment as we face an array of
8 technological controls, an array of license
9 agreements, particularly in situations where we have
10 collections of works and not individual works, and
11 in those collections we have public domain material
12 or links to public domain material that may be
13 controlled technologically. Then I think we've
14 created a very different working environment for our
15 users that might be not inappropriate, might be
16 inappropriate for their exercising their fair use
17 rights.
18 MS. GOSLINS: Okay. I think I
19 understand your response. I just want to clarify
20 that taking into account all of your concerns,
21 you're not aware at the moment of circumstances
22 where your librarians or professors are being forced
23 to circumvent access control protections in order to
24 make use of works.
25 MR. NEAL: No.
26 MS. GOSLINS: Okay. This question may
PAGE 91
1 have already been answered in a couple of different
2 ways in this in the course of our discussion this
3 morning, but as we listen to the range of concerns
4 that the educational, library, and user community
5 have, they seem to range from what I'm thinking of
6 as sole source concerns in which material which is
7 not available any other way is locked up and
8 concerns about difficulty of access, restrictions on
9 the amount of people that can use things at one time
10 or, as you put it, just a quality concern of quality
11 equals content plus functionality, and I'm wondering
12 whether you think we should think differently or
13 along a continuum about access control technologies
14 that prohibit any use whatsoever or those that make
15 uses more inconvenient or more difficult.
16 MR. NEAL: Could you state your question
17 again?
18 MS. GOSLINS: Sorry. There seems to be
19 a range of concerns, and at one end there is the
20 concern that there will just be no other way to get
21 certain materials if this prohibition is enforced
22 without an exemption, and at the other end it's that
23 it will be a lot more inconvenient and difficult to
24 make use of materials if there is not an exemption
25 to the prohibition, and I would just like a little
26 information as we try and balance the concerns that
PAGE 92
1 we hear expressed what you think our attitude should
2 be to this continuum, whether we should pay more
3 attention and give more weight to this sort of sole
4 source type of concerns and what our perspective
5 should be on concerns about increased inconvenience
6 and difficulty in making use of works.
7 MR. LUTZKER: In some respects I think
8 that that's an issue that can so complicate the type
9 of consideration. I mean, it's like I'm doing
10 research and I'm in Washington, D.C., and I've got
11 something that's on the CD-ROM, and I determine I
12 can't access it, and I wouldn't know how to access
13 it anyway, but I can't access, but it's available.
14 Where is it available? It's available in New Jersey
15 somewhere. Nowhere in the Washington area is that
16 document available. It's available in New Jersey.
17 It's inconvenient for me to go to New
18 Jersey. So, you know, that's one thing, but let's
19 say it's available in Baltimore or in, Suitland.
20 The notion of convenience or inconvenience is really
21 a side issue and not the nub of what we're at. The
22 question is in exercising fair use rights, do I have
23 certain rights with respect to this particular work
24 as you will define this category.
25 And I think the notion of convenience or
26 inconvenience can tend to be a matter of distance.
PAGE 93
1 It can be a function of cost in some respects, and I
2 think that's traditionally -- I mean if it becomes
3 part of the overall analysis and it becomes a
4 factor, but I don't think it should be a defining
5 factor.
6 MS. GOSLINS: I understand you. It
7 seemed to me that your proposal did make it a
8 somewhat defining factor, that one of the criteria
9 that should be included in defining a class of works
10 is whether the content was available, was --
11 MR. LUTZKER: Ready availability, right.
12 MS. GOSLINS: Whether it was readily
13 available, and it seemed that that would require
14 whoever it was that was going to make use of the
15 work to make judgments about what readily available
16 meant, and that, you know, the difference between
17 Baltimore or New Jersey would then become relevant.
18 MR. LUTZKER: As I said, I don't think
19 it is a completely irrelevant issue, but I don't
20 think it is the defining issue. I think it can be
21 part of the overall mosaic.
22 MR. NEAL: I guess I don't see sole
23 source provider and inconvenience being on the same
24 continuum. I think they are distinctive issues that
25 you need to think about as you deliberate this
26 situation.
PAGE 94
1 The sole source provider condition in
2 terms of what we acquire and provide access to in
3 libraries is overwhelming. The overwhelming
4 majority of the resources that we provide access to
5 and acquire are available from a single source, and
6 that lack of a competitive marketplace does
7 influence the type of access that is enabled and the
8 price that we pay, and I would argue eventually the
9 types of technology controls that we might
10 encounter.
11 I also think that you also have to
12 consider, but not in competition with the issue of
13 sole source provider, the convenience question.
14 Convenience might be issues of cost. They might be
15 issues of time. They might be issues of quality,
16 and I think one always is looking at those three
17 factors in making choices in one's life.
18 I'd like to reactivate my concern about
19 the difficulties faced by poor communities in terms
20 of their ability to pay, and by poor communities in
21 terms of their ability to rally the necessary
22 expertise both in terms of legal issues and
23 technological issues to deal with these types of
24 situations that I think we'll be confronted with.
25 As I argued with UCITA and as I will
26 argue here, the digital divide issues are more than
PAGE 95
1 issues of connectivity. They have legal and
2 economic components to them that we need to deal
3 with, and I believe this is front and center a
4 digital divide question that we're dealing with
5 here.
6 PROF. COHEN: A couple of things. On
7 the question of what is inconvenient, it seems to me
8 that a very important, though not necessarily the
9 only consideration, has to be whether the work is
10 available in your market without technological
11 gateways, and sometimes available will have to
12 include content plus functionality.
13 As to technologies that prevent any use,
14 I'm not sure I see those on a continuum with
15 technologies that make use more inconvenient or
16 maybe I see them all in a giant circle because you
17 could have kinds and kinds of technology that
18 protects against any use. You could have a
19 technology that simply is a password key, and once
20 you have it, you can make any use of the work for
21 all time, and that seems to me a kind of pure access
22 control. That's what Congress was considering in
23 the first place, and the kind that in my opinion
24 raises far fewer ongoing fair use problems because
25 it doesn't seek after you've purchased the key and
26 gotten lawful access to regulate ongoing use in any
PAGE 96
1 way. Or you could have technology that prevents any
2 use on an ongoing basis, and that in my opinion
3 raises enormous fair use problems.
4 MS. GOSLINS: Okay. Just one final
5 question. Actually mostly for Arnie.
6 You stated in your testimony that from
7 your experience in negotiating 1201 you are certain
8 that 1201 was not intended to be a back door to
9 database protection, and I'm sure you noticed in a
10 lot of the comments there have been recommendations
11 for using databases as a class of works that might
12 be considered for exemption from the 1201 provision.
13 So I'm just curious to hear you think
14 through this a little bit more. How should we think
15 about works or access control technologies which
16 protect indiscriminately copyrightable content and
17 non-copyrightable content? I mean, the easy example
18 here is databases.
19 MR. LUTZKER: Yeah. I think it's clear,
20 and there's some language difference between, you
21 know, the A and the B sections, but it's clear that
22 1201(a) with respect to the prohibition we're
23 focusing on covered works protected under the title
24 and I can't say abstractly whether a database is or
25 is not protected under the title.
26 MS. GOSLINS: Well, let's just assume
PAGE 97
1 for a second that we're talking about a database
2 that has copyrightable elements of at least
3 selection arrangement and cooperation and also
4 material that is not protected by copyright, like
5 court cases or --
6 MR. LUTZKER: Well, it goes to the
7 question of what is the work. Is the entire
8 database the work or are the elements of it the work
9 or works, if you will, an accumulation of works?
10 And there's where I think, again
11 fundamentally this provision should not prevent
12 people from getting access to data that is not
13 protected by copyright law. Now, where you merge
14 unprotected and protectable elements, it is a
15 practical difficulty of saying, in terms of writing
16 a regulation that would apply to a situation like
17 that -- that's why I think use becomes an acceptable
18 approach on your end.
19 You can say that, there are certain
20 accesses that can be made and certain accesses that
21 can't be made, and if you are accessing works that
22 are not protected by this title, that ought to be
23 allowed.
24 MS. GOSLINS: But if I circumvent Lexis
25 nexus access controls, how is anybody supposed to
26 know or how are we supposed to write a rule that
PAGE 98
1 distinguishes between whether I'm circumventing it
2 to use their search engine and read the head notes
3 or to read the text of Feist? How do we draw that
4 distinction? How does anybody draw that
5 distinction?
6 MR. LUTZKER: Well, I think it becomes
7 incumbent upon -- I mean, if you don't exempt that,
8 let's say there's nothing, and people are going to
9 go out and they're really going to circumvent or
10 they're not. Okay? Most institutions will comply
11 by whatever the law is.
12 If people go ahead and circumvent, so
13 that in other words they've now entered this no
14 man's land, how are the proprietors going to
15 determine who they are? What are the mechanisms in
16 place for them to determine whether or not a
17 circumvention has occurred which is a violation of
18 the statute?
19 I think the problems exist there
20 concurrently, and I'm not connecting in that sense,
21 I see, but --
22 MS. GOSLINS: That just seems to me as a
23 practical problem of the copyright owner as opposed
24 to when we're thinking about a product that is both
25 protected by copyright and under this title and not.
26 MR. LUTZKER: I think fundamentally
PAGE 99
1 there needs to be an acknowledgement through the
2 Office, through the Library in these regulations
3 that if a work is not protected under the title, it
4 is outside the scope of this criminal-civil
5 provision. Okay?
6 If it is a use oriented exception, uses
7 that are outside dealing with non-copyrightable
8 material are not a violation of the section. If the
9 use that is made is of protected material and
10 there's not otherwise an acceptable basis for using
11 it, then it would be a violation.
12 PROF. COHEN: I'd add that technologies
13 aren't static here, and that's really an important
14 thing to remember. It's causing us an enormous
15 amount of grief even today, and to pick up on
16 something Arnie started out with, if there is no
17 exemption because of the fear that someone might
18 really want those excellent copyrightable headnotes,
19 then there is no exemption, period.
20 If the library has one print copy of the
21 reporter down somewhere in the basement in a several
22 thousand student school, then there's effectively no
23 exemption, and that particularly where the
24 underlying content is U.S. government public domain
25 works is simply unacceptable.
26 A rule that says you have to look at the
PAGE 100
1 circumstances of the use might well encourage the
2 content provider to develop better technologies that
3 make it easier to make the sorts of uses that have
4 to be permitted, and that in my view is a good
5 thing.
6 MS. PETERS: Charlotte.
7 MS. DOUGLASS: Yeah, I have a couple of
8 quick questions. You've been talking about
9 potential adverse effects on public uses of
10 copyrighted works, and I just would like to know if
11 there is any other reason.
12 Could there be any other reasons except
13 circumvention that might mean that there really
14 isn't an -- let me start again.
15 When you try to prove some things, you
16 might want to prove -- what we have to do is decide
17 whether the prohibition on circumvention causes
18 adverse effects. So what I'm trying to get at is
19 whether there are any other reasons besides the
20 prohibition on circumvention that might account for
21 the adverse effects.
22 MR. NEAL: I'm not understanding the
23 question.
24 PROF. COHEN: Well, do you possibly mean
25 the person is poor and couldn't pay for access to
26 the work anyway? Because that could very well be a
PAGE 101
1 reason, but our society has historically had an
2 answer to that, which is the public library. So the
3 copyright system is bound up with those other
4 factors at every level.
5 MS. DOUGLASS: I'm just trying to hone
6 in on things caused by the prohibition on access
7 controls, prohibition on circumvention of access
8 controls, and when in the final analysis Congress is
9 going to say, "Have you answered the question that
10 these things were caused by the prohibition on
11 access controls, or there might have been some other
12 causes?"
13 And if there might have been some other
14 causes, then that's not going to meet what Congress
15 has asked us to do as I see it.
16 PROF. COHEN: It is not my reading of
17 this statute that Congress has asked you to
18 determine whether the implementation of access
19 controls is a but-for cause of the adverse effects.
20 It is my reading of the statute that Congress has
21 asked you to determine whether after the
22 implementation of access controls users are
23 suffering adverse effect that they were not
24 suffering previously, and the implementation of
25 access control can be one cause of that, but it's
26 not my reading of the statute that it needs to be
PAGE 102
1 the only cause.
2 And the reason that that's not my
3 reading of the statute is because the implementation
4 of access controls is part of -- it sounds grandiose
5 -- but a new economic order or an attempt to impose
6 a new economic or new licensing order within this
7 copyright world, and a lot of causes are linked.
8 Now, one could say, "Well, you library
9 and educational people, you are dinosaurs, and you
10 are resisting this new economic order." I think
11 that Congress clearly provided for that resistance,
12 but more importantly, I think that this is not about
13 whether someone's a dinosaur or not, but whether
14 libraries as such are going to be able to continue
15 to exist, and the implementation of access control
16 technologies is one cause of a chain of developments
17 that might prove troubling in that regard, but need
18 not be the sole cause.
19 MS. DOUGLASS: Another question I have
20 is to Mr. Neal, I believe, or anybody can comment,
21 and this may be the least of your concerns, but
22 before the implementation of the DMCA, there were
23 some comments made during and around the negotiation
24 of the two WIPO treaties, which said that one of the
25 objectives was continuing availability of works, and
26 that another objectives was to permit easy access to
PAGE 103
1 authorized uses.
2 And I wonder if you would care to
3 comment on the international effect of what happen
4 if these measures, anti-circumvention measures came
5 into being without exemption. Do you have any just
6 general comment?
7 MR. NEAL: I feel like I'm at my Ph.D.
8 orals
9 (Laughter.)
10 MR. NEAL: I was a participant at the
11 WIPO treaty discussions in Geneva lo those many
12 years ago, and among the many issues that we
13 wrestled through there were issues of harmonizing
14 the world's approach, the national approaches to
15 changes in the electronic or in the information
16 environment with changes in copyright law and
17 recognizing that the movement of information across
18 borders was a pressing reality that we needed to
19 deal with. And so that inspires us to think about
20 the very question that you're raising here.
21 The second thing we recognized is that
22 the concept of fair use with its broad exceptions
23 and limitations to copyright ownership rights is a
24 concept which is perhaps most aggressively embraced
25 in law in the United States. There may be
26 comparable concepts or words in other legal national
PAGE 104
1 copyright language, but not at the same level and
2 not with the same perhaps consistent application
3 over time, and therefore, we worked -- at least the
4 fair use community as I would define it -- worked
5 very hard in Geneva to educate and work with other
6 representatives from around the world to look at
7 fair use as an important global concept to be
8 adopted.
9 And although we were not successful in
10 integrating the concept or the terminology of fair
11 use into the body of the treaty, it was, in fact,
12 embraced in the preamble to the treaty and,
13 therefore, I think a very important step forward.
14 So I think an important aspect of what
15 you say is that there is at least an increasing
16 international recognition of the importance of
17 limitations and exceptions, and that fair use did
18 enter I presume for the first time -- and I look to
19 Marybeth to confirm that -- at least for the first
20 time in my experience entered in international
21 treaty the terminology "fair use."
22 And so I thought that was an important
23 breakthrough, and I hope that the rest of the world
24 begins to catch up with us before we lose it, so to
25 speak.
26 MR. LUTZKER: Charlotte, if I could
PAGE 105
1 return to your first thing, I was thinking about
2 that, and at least from my perspective I want to
3 make clear that one could say it is not the
4 technological measures that create the adverse
5 effects. It's the contract. It's the license that
6 creates the adverse effects, and I think I would
7 want to separate that and say, in effect, that the
8 contract terms are the contract terms. If libraries
9 negotiate and they have certain limitations which
10 are agreed to in respect of a license, that's the
11 deal, and that's the way they use it, and that's
12 what they say that's how they use it.
13 But the adverse effects that the
14 technology imposes are, in a sense -- even if they
15 enforce contractual terms between licensed parties,
16 I reiterate we're dealing with non-licensed,
17 unrelated parties, in effect. I mean there might
18 have been prior agreements between them in the past,
19 but it is in an environment where there is no
20 license.
21 And so if you think of the adverse
22 effect being really caused by the license and not
23 the technology, the technology is really in license
24 terms. I think you're not looking to the ultimate
25 concern that we're pressing.
26 MR. NEAL: I want to draw an important
PAGE 106
1 distinction at least in my mind between negotiated
2 licenses where parties have an opportunity to go
3 back and forth to reach terms of agreement on how
4 information will be used and non-negotiated
5 licenses, which are increasingly part of the
6 electronic Internet world in which we live and where
7 click on and shrink wrap approaches, I think --
8 represent increasing array of agreements for which
9 there's not an opportunity to negotiate, and I think
10 we need to draw that distinction.
11 I'm amazed at the number of on-line
12 licenses that I'm presented with where, rather than
13 having to browse down through the text to which I am
14 supposedly agreeing to the buttons that I'm expected
15 to click at the bottom of all this information,
16 they're now presented at the top with the
17 assumption, well, you don't want to read it anyway.
18 So let's get you to agree right up front, or they're
19 buried. The agreements are on a screen, and you
20 have to go to a second or third screen to actually
21 read the text.
22 So there's a built in assumption here, I
23 think, increasingly in the on-line world that the
24 nonnegotiated license arrangement will not work a
25 lot more, and we need to be concerned about that.
26 MS. DOUGLASS: Thank you.
PAGE 107
1 MS. PETERS: Okay. Rob.
2 MR. KASUNIC: Well, I'll try and keep my
3 questions brief. I know you've been up there for a
4 long time.
5 MS. PETERS: Hopefully they didn't drink
6 as much water as I did.
7 (Laughter.)
8 MR. KASUNIC: I did want to start off
9 with follow up on the discussion on the thin
10 copyrights and the protection of information that is
11 only thinly protected under Title 17.
12 And there was a statement that that
13 might be even more important since if all
14 information is becoming, as you mentioned Mr. Neal,
15 intermingled into collections to a certain extent,
16 or compilations, then this distinction, how we deal
17 with this area is important.
18 If the technology used by the copyright
19 owner is applied at this point in time, with the
20 current state of the technology to both
21 copyrightable and non-copyrightable elements of
22 works, who should bear the burden of the
23 indiscriminate use of that technology? --On not
24 protecting, exclusively, the copyrightable elements,
25 but placing access controls on the broad
26 compilations or databases that encompass both
PAGE 108
1 copyrightable and non-copyrightable elements?
2 PROF. COHEN: Who should bear the burden
3 in a court proceeding?
4 MR. KASUNIC: Who should bear the burden
5 under Section 1201(a)(1) in terms of the use of that
6 technology?
7 If the technology, as we have it right
8 now, is not able to discriminate between particulars
9 (conceivably there could be a time when the
10 technology could be applied only to copyrightable
11 elements as opposed to the overall work). Who
12 should, under the current state of technology as we
13 have it under 1201(a)(1) --
14 MR. LUTZKER: I think as Julie helped me
15 out on the database discussion, I think it makes
16 logical sense that as we look at these as being more
17 sophisticated technological measures imposed by the
18 owners, creators, sellers or licensors of the
19 material, that it behooves them to work through the
20 structure that gives them maximum protection for the
21 things that need protecting and in recognition of
22 the fact that there may be, in a sense, use rights
23 with respect to portions of that material; that
24 those be made at least accessible in a way that
25 doesn't open up the whole shop.
26 I mean, right now if all you have to do
PAGE 109
1 is enter your initials and that becomes your pass
2 code to get into the whole universe of stuff, and
3 half that stuff is public domain and government
4 works and half of that stuff is proprietary, then
5 obviously the dilemma is, well, if you let them in
6 they can go to the public domain, but they also go
7 to the other stuff.
8 But I would think that the parties that
9 are licensing the stuff need to determine and use
10 technological measures if they want to enforce this
11 provision. They have other ways of protecting their
12 interests because, the provision is not in force
13 right now, and they have ways of protecting the
14 provision.
15 The other day or yesterday, Monday
16 afternoon there was a very entertaining presentation
17 by a guy from Silver Platter. They've been doing
18 this stuff for 20 years, and they presumably have
19 been thriving, and this is a new additional benefit
20 for them, a new right, if you will, to control and
21 create, of burden the responsibilities, and if they
22 want to take advantage of it without sort of
23 diminishing what the public has a right to, then
24 they ought to figure out the measures and allow it.
25 I don't know whether I'm creating an
26 impossible task. I don't know the technology to
PAGE 110
1 say -- I don't know whether any of us can. I mean,
2 get the engineers in to explain how you could do
3 that, but I have enormous faith that it can be done
4 or if it's economically desirable it will be done.
5 PROF. COHEN: I think the burden of
6 proof is met by a showing that the technologies
7 apply to copyrightable and uncopyrightable elements
8 alike. That's precisely the problem.
9 MR. KASUNIC: I'm sorry. I didn't hear
10 the last part.
11 PROF. COHEN: I said I think the burden
12 of proof is met by a showing that the technology is
13 applied to both copyrightable and uncopyrightable
14 elements alike. That is precisely the problem.
15 MR. KASUNIC: What if protections go
16 beyond just the technological control measures, go
17 beyond protecting simply access, and merge the
18 protection into access and use?
19 MR. LUTZKER: Well, in theory, Section
20 1201(c)(1) addresses the notion that there's nothing
21 with respect to use. This is one of the difficult
22 things to absorb in the statute. On the one hand
23 you have the provision that nothing in here will
24 affect the rights that are already existing, and
25 they specifically mention fair use. So aren't you
26 protected?
PAGE 111
1 And it becomes a question of what is
2 access, what is use. If you're in and you have
3 access, and there may be separate questions of
4 contract, but the fair use provisions and other
5 provisions are in play when you're using the work.
6 And, it's the difference, too, in the
7 models of whether we use licensed material as
8 opposed to purchased material, and one thing that
9 struck me, and it came up in actually discussions
10 during term extension, and the Register's office was
11 deeply involved in many of those discussions. I
12 don't remember if it was actually in the
13 negotiations or whatever, but it was a concept that
14 if this licensing affords an opportunity to really
15 assure real control over works, it's a way of
16 eliminating many of the fair use issues that have
17 cropped up over the course of years.
18 Then, what's to stop publishers from
19 instead of selling books with Borders Books -- it's
20 a license. You open the book, and you're licensing
21 to obtain a copy of a work.
22 It sort of was a creative thought
23 process that that engendered, but we're basically in
24 a situation where in theory fair use is supposed to
25 apply once you're using the work, subject to
26 whatever license requirements there may be.
PAGE 112
1 MR. KASUNIC: That brings me to a broader
2 question, following up on some of the discussion of
3 how we define access and what that relationship is
4 with use. For instance, in the example that David
5 raised about the expired CD, that after expiration,
6 which is a license restriction on the CD, is one
7 allowed to re-access it without violating
8 1201(a)(1)?
9 Is secondary access within the scope of
10 consideration of what Congress intended in
11 1201(a)(1) or is it not? We see a lot of discussion
12 in the legislative history about black boxes and
13 about breaking into a locked room. How does
14 secondary access fit into that? In 1201(a)(1) are
15 we concerned with secondary access or was the intent
16 different \226 the meaning being initial access of a
17 work?
18 MR. LUTZKER: Well, we had a lot of
19 discussion as a way, and I think it was an effort at
20 compromise on the library side to suggest some
21 initial lawful access, and we have it in many of the
22 current proposals. It adds a Patina of fairness I
23 would say to the analysis, and that's why it is part
24 of it.
25 The question, and I think Charlotte had
26 asked this, and I don't know precisely the
PAGE 113
1 formulation about whether a work is published or
2 unpublished, but a work is a work under copyright
3 law. I mean you've got to look at this as what does
4 the copyright law say.
5 The copyright law grants certain rights
6 to owners of works, and they're spelled out in 106,
7 and if they're not in 106, they don't exist, and
8 then you go to the limitations in 107 to 121 or
9 whatever the last number is now, and that's how you
10 define what the rights of ownership are.
11 And under those circumstances you can
12 then see that the fact that there was a prior
13 license or arrangement may or may not have relevance
14 to whether or not you can make a fair use of it.
15 Particularly in an electronic world and the worrying
16 about theft and piracy and the like, again, it adds
17 credibility to those who have had a license, but I
18 don't know whether you should necessarily be
19 penalized or not penalized having had that access.
20 I think in part the concept of the
21 access helps so that you know what's inside the work
22 to know whether or not you need to get to it. Julie
23 can tell me never having had access to something
24 that this is a good work that I might use in some
25 research, but there's more credibility if you've
26 already had that understanding.
PAGE 114
1 Separately a question came up. Well, if
2 you have access, just make a copy of it, you know,
3 while you have the access, and that may or may not
4 have license implications, but then it becomes an
5 enormous burden in an electronic environment. The
6 whole purpose is you don't have to have a copy. You
7 can access it visually.
8 MR. KASUNIC: But then am I
9 understanding correctly that we're in some ways
10 defining access in terms of the use then of the
11 work?
12 MR. LUTZKER: I think that is one of the
13 great dilemmas that I'm glad you have, but access
14 and use merge. That's why when in the original
15 library comments we talk about access and use that
16 there's an intertwining, and people can have access
17 either for a day and somebody can have access for a
18 longer period, but access really converts to the
19 ability to use the material, to view it, to see it,
20 and the technology now to the extent it enforces
21 access, it does merge in enforcing usage.
22 MR. KASUNIC: Well, that is our trouble
23 here, and that's why I'm trying to focus in on it to
24 try to see how we break those apart. Since Congress
25 didn't prohibit the conduct of circumventing for the
26 use of the Section 106 rights, but only prohibited
PAGE 115
1 the conduct of circumventing for access. So how do
2 we pull these apart in this situation and in some
3 way limit that definition of access so that it
4 doesn't involve the 106 rights and the use rights?
5 MR. LUTZKER: That's what we've tried to
6 provide.
7 MR. NEAL: Moving down a tough path, I
8 know, here again. CD-ROMs. CD-ROMS. There's no
9 such thing as a CD-ROM. CD-ROMs come with books.
10 So we stick them in the back, and we put them on the
11 shelf. CD-ROMs come as works in themselves. So a
12 person picks it up off the shelf or requests it over
13 a desk, and they take it to a reader and they put it
14 in and they use it.
15 CD-ROMs increasingly are a set of
16 information which is linked to a dynamic Web site.
17 So some of the information that's on the CD-ROM, and
18 a lot of the information is related information as
19 proposed and presented in a Web environment.
20 And historically and perhaps to a lesser
21 extent CD-ROMs were networked. That is, we put them
22 up on a piece of equipment that enabled us to
23 integrate and present them to users in a broad
24 geographic way. So you didn't have to be physically
25 at a work station. You could be anywhere within the
26 domain and access that information.
PAGE 116
1 So CD-ROM already has all kinds of
2 technological complexities and diversities built
3 into it and how it relates to other formats of
4 information.
5 When we use CD-ROMs, they very often
6 involve a negotiated license, and in some cases they
7 involve a nonnegotiated license because we go into a
8 store, we buy it, we open it up, and say, "Dah, dah,
9 we have agreed to these terms. We didn't have a
10 chance to tell you what we thought we were going to
11 do with this and reach some agreement on it, but I
12 opened the package and, therefore, I agreed to these
13 terms."
14 Now you can say, "Okay. You don't like
15 those terms. Bring it back. Bring it back to the
16 store and don't use it." That's an interesting
17 UCITA discussion.
18 But when we negotiate access to a CD-ROM
19 and there is an issue related to its time frame, we
20 don't permit persistent -- how long that is. I mean
21 we stop using it. We don't allow systematic how
22 much. We don't allow widespread, where. So we take
23 down the where, the how much, and the how long
24 capabilities.
25 Now, we may have if we were smart, we
26 may have negotiated that so that we can hold onto
PAGE 117
1 that CD-ROM and keep it somewhere in our collection
2 so that we may not enable systematic widespread use.
3 We may be able to enable the checking of that for
4 certain educational and research purposes. Most of
5 us have not thought about that in our negotiations
6 for these types of things.
7 So I don't know if that helps, but that
8 puts it in a much more complex framework than it
9 just being a CD-ROM.
10 MR. KASUNIC: Well, the license then is
11 creating terms on how you can access it, for how
12 long, how many times, how many users, but is that
13 that's a contractual provision. That's not
14 protected under 1201(a)(1) -- that you have a
15 licensing provision in there.
16 We're looking at the technological
17 controls that are protecting the access to it. So
18 if that license were breached and we were to ignore
19 that license, how would you define whether you can
20 circumvent just the technological control? That the
21 number of times or re-accessing it is something
22 that's within the terms of the license not now being
23 considered, but, rather, just in terms of
24 considering what is prohibited under 1201(a).
25 MR. LUTZKER: Well, all of the licenses
26 are going to say, "By accepting this contract you
PAGE 118
1 agree not to exercise your anti-circumvention rights
2 as provided under 1201(a)(1) as recommended to the
3 Librarian by the Copyright Office." You can predict
4 that, but I can tell you by having that exception
5 and limitation built into law, it gives us an
6 enormous leg up in those contract negotiations.
7 PROF. COHEN: I would add that it is not
8 the function of federal copyright law to prevent
9 people technologically from breaching their
10 licenses, and if the law decides that everything's
11 access, that's in fact what you're doing, and that's
12 backwards.
13 MR. KASUNIC: Okay. One final thing. In
14 terms of the definition that was being discussed, if
15 I can just find this, that ``a work that was lawfully
16 acquired by a user or users and an institution'',
17 being a potential exemption, how do we deal with
18 that definition? Or, what is the scope of that
19 definition of ``lawfully acquired''? Is that
20 something that is just purchased or are we also
21 talking about where something is licensed, where
22 someone has a license and has initial access to that
23 work? Is that then a lawful acquisition that's, at
24 that point, the initial access of it?
25 PROF. COHEN: It seems that initial
26 access has to be a factor in differentiating between
PAGE 119
1 what is access and what is use, whether the
2 transaction is styled as a purchase of a copy or as
3 a license.
4 MR. KASUNIC: So whether something is
5 ``lawfully acquired'' encompasses both a licensee of
6 the work or someone who purchases.
7 MR. LUTZKER: Yeah, I think the concept,
8 and, again, this was designed to sort of understand
9 the urgencies of the marketplace and to try to
10 create a fair modeling of what is going on. If a
11 purchase or license has been made or if other
12 definitions of what constitutes lawful access, I
13 wouldn't say that those two would necessarily be the
14 full parameters.
15 I mean if I go into a library, I haven't
16 necessarily purchased -- the library may -- but I
17 haven't necessarily purchased or licensed the
18 materials, but I still may have a lawful access at
19 that point in time.
20 And so I think it's intended to be
21 distinguished from theft and piracy, and again, it
22 gives a sense that we are in a regime that is
23 bounded by laws and bounded by some degree of
24 fairness. I think I want to clarify because I don't
25 know whether I've been -- it's clear because you've
26 got negotiated licenses, that's the nonnegotiated
PAGE 120
1 type. I think Jim's comments are particularly
2 pertinent in how to evaluate, and I haven't yet
3 thought through sort of exactly how I would suggest
4 even modifying the things that I've outlined because
5 as you get to hearing, I can see different things.
6 But I can see distinctions between the
7 negotiated license, the nonnegotiated license as you
8 make certain assessments into the particular classes
9 of works that users should be able to make use of,
10 but I think there are clear distinctions between the
11 nonnegotiated license situation and the license
12 situation.
13 MR. KASUNIC: Thank you.
14 MS. PETERS: Thank you.
15 I want to thank the panel. This sets a
16 record. We have not kept a panel anywhere near as
17 long. So obviously you presented testimony that was
18 very relevant that helped us a lot.
19 MR. NEAL: Where do we submit our per
20 diems? No.
21 (Laughter.)
22 MS. PETERS: For those of you who are
23 appearing at two o'clock, you have one hour and 20
24 minutes to find restrooms and lunch.
25 Thank you very much.
26 (Whereupon, at 12:40 p.m., the above-
PAGE 121
1 entitled hearing was recessed for lunch, to
2 reconvene at 2:00 p.m., the same day.)
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
PAGE 122
1 A-F-T-E-R-N-O-O-N S-E-S-S-I-O-N
2 (2:00 p.m.)
3 MS. PETERS: Welcome to the last session
4 of the D.C. hearings on our Section 1201(a)(1)(A)
5 rulemaking.
6 And I notice that our audience has
7 wandered off, but everybody will hear your words by
8 going to the Internet and see them.
9 This afternoon our witnesses are Bernard
10 Sorkin, who represents Time Warner and the Motion
11 Picture Association of America, and Richard
12 Weisgrau, accompanied by Victor Perlman who
13 represents the American Society of Media
14 Photographers, and why don't we start with you,
15 Bernie?
16 MR. SORKIN: Thank you.
17 I appreciate the opportunity of being
18 here to testify before you in the hope of convincing
19 you that we are not on the brink of the end of
20 Western civilization as we know it.
21 I appear here for Time Warner, Inc., and
22 the Motion Picture Association of America, Inc.
23 Both Time Warner and the members of the
24 Motion Picture Association depend for their
25 existence on adequate and effective copyright
26 protection. They are also vitally interested in the
PAGE 123
1 healthy maintenance of the fair use doctrine. That
2 doctrine makes it possible for them to create and
3 disseminate factual and nonfactual, textual, audio,
4 visual, and audiovisual works.
5 I shall state the conclusion of my
6 submission here, at the risk of reducing the tension
7 in the room. There has been no evidentiary showing
8 of any realistic likelihood of any adverse effect on
9 anyone's ability to make noninfringing uses of any
10 particular, quote, class of works, unquote, when
11 Section 1201(a)(1)(A) becomes effective.
12 Accordingly, there should be no delay in
13 the effective date of that section. Interested
14 parties may, of course, put together such evidence
15 as they believe relevant and persuasive for
16 submission in rulemaking proceedings during the
17 successive three-year periods following the
18 effective date of Section 1201(a)(1)(A), as provided
19 in Section 1201(a)(1)(C).
20 Such submissions would at least have the
21 benefit of being made in the context of an existing
22 anti-circumvention prohibition instead of dealing
23 with, as the comments seeking exemptions now do, the
24 chimera of alleged consequences of a statute not yet
25 in effect.
26 It has become almost trite to say that
PAGE 124
1 digitization presents extremely serious problems for
2 copyright protection. There are, of course, many
3 benefits to copyright owners, as well as to the rest
4 of society.
5 Nevertheless, the fact that copyrighted
6 works may be speedily and cheaply duplicated in
7 unlimited quantities and without any degradation of
8 quality even when copies are made from copies, the
9 fact that digitized works may be easily and cheaply
10 transmitted throughout the world by the push of a
11 computer button, and the fact that digitized works
12 may be easily and cheaply modified have created a
13 qualitative rather than merely a quantitative
14 difference in the dangers faced by copyright.
15 And accordingly in the defenses required
16 for copyright protection. In this regard it is
17 important to recognize that adequate defense of
18 copyright is needed not only to protect the works
19 themselves and the interests of copyright owners,
20 but also to protect those interested in creating and
21 operating the physical infrastructure which depends
22 on copyright works for its prosperity.
23 These increased dangers were recognized
24 by the approximately 160 member nations of the world
25 intellectual property organization that agreed in
26 Geneva in December 1996 to two treaties intended to
PAGE 125
1 provide protection in digital and on-line
2 environments. These treaties were thought necessary
3 to achieve adequate protection despite the recent
4 passage of the Trips Agreement (phonetic) and its
5 protections for intellectual property.
6 So clear are the increased dangers to
7 copyright resulting from digitization. One of those
8 treaties, the WIPO copyright treaty, includes in its
9 Article XI the following: "Contracting parties
10 shall provide adequate legal protection and
11 effective legal remedies against the circumvention
12 of effective technological measures that are used by
13 authors in connection with the exercise of their
14 rights under this treaty or the Burn Convention, and
15 that restrict acts in respect of their works which
16 are not authorized by the authors concerned or
17 permitted by law."
18 That article is at the basis of the
19 statutory provision, Section 1201(a)(1) of the
20 Digital Millennium Copyright Act which was enacted
21 to implement the U.S. requirements under the WIPO
22 treaties. It is pursuant to that statutory
23 provision that this rulemaking proceeding was
24 instituted, quote, to determine whether there are
25 classes of works as to which users are or are likely
26 to be adversely affected in their ability to make
PAGE 126
1 noninfringing uses if they are prohibited from
2 circumventing, end quote, technological measures
3 that control access to copyrighted works.
4 This being a rulemaking proceeding, its
5 outcome must be based on evidence presented in the
6 course of the proceeding. Mere speculation is of no
7 moment. In that connection, the notice of inquiry
8 itself points out that, quote, it is clear from the
9 legislative history that a determination to exempt
10 the class of works from the prohibition on
11 circumvention must be based on a determination that
12 the prohibition has a substantial adverse effect on
13 noninfringing use of that particular class of works.
14 The Commerce Committee ordered that the
15 rulemaking proceeding is to focus on distinct,
16 verifiable and measurable impacts, and should not be
17 based upon de minimis impacts.
18 Similarly, the manager's report stated
19 that the focus of the rulemaking proceeding must
20 remain on whether the prohibition on circumvention
21 of technological protection measures, such as
22 encryption or scrambling, has caused any substantial
23 adverse impact on the ability to make noninfringing
24 uses, and suggested that mere inconveniences or
25 individual cases do not rise to the level of a
26 substantial adverse impact.
PAGE 127
1 The assertions about purported adverse
2 effects flowing from the future effectiveness of
3 Section 1201(a)(1)(A) are based on nothing more than
4 speculation, and moreover, on speculation based on
5 ill founded premises.
6 One example is in the statement by
7 Copyright's Commons that it shares, quote, the
8 Library Association's concerns that access controls
9 may, italicized "may," too easily become persistent
10 use controls in the hands of publishers.
11 Another example is the statement in that
12 same paper that, quote, we fear that the anti-
13 circumvention rules will be wrongfully used for
14 improper commercial purposes and to block speech,
15 closed quote.
16 There they stand, completely free of any
17 factual support. Moreover, those seeking exemptions
18 from application of Section 1201(a)(1) failed to
19 consider a number of fundamental premises that
20 should lay to rest these and the other speculations
21 on which their papers are based.
22 For one thing, at least for some time
23 works will continue to be made available in analog
24 formats and paper formats, that is, in ways not
25 subject to the provisions of Section 1201, and
26 accordingly, free from the concerns expressed in
PAGE 128
1 those papers.
2 I should say parenthetically that even
3 motion pictures released on DVD about which so much
4 vituperation was spilled in this proceeding have
5 been and re continuing to be released on VHS and
6 even, mirabile dictu, in 35 millimeter prints so
7 that members of Copyright's Commons and of the
8 library and educational communities can enjoy them
9 in theaters.
10 Secondly, and very fundamentally,
11 copyright owners, distributors, and publishers are
12 interested in the widest possible distribution of
13 their works. The Salinger case, which involved an
14 author's seeking seclusion for himself and his
15 works, is not an exemplar of the content owning
16 community.
17 Copyright owners, distributors, and
18 publishers cannot exist and prosper by borrowing
19 their works from public availability. The assertion
20 by Copyright's Commons that, quote, corporate
21 copyright holders now seek to use the Digital
22 Millennium Copyright Act's power of copyright to
23 expand the monopoly on expression and restrict the
24 public's use of their works is not only unsupported,
25 but flies in the face of economic logic.
26 There is a dramatic contrast between the
PAGE 129
1 speculations of those seeking exemptions and the
2 reality of a tax on copyright protection of the kind
3 against which Section 1201 is intended to protect.
4 One example of the latter is the hacking of the CSS
5 technology intended to protect DVDs from
6 unauthorized copying and access.
7 Another example is the circumvention by
8 stream box of the access control and copy protection
9 measures that real networks affords to copyright
10 owners.
11 In short, while the expressed concerns
12 about adverse effects are speculative and illogical,
13 the threats to technological protections and to
14 copyright are real and have already manifested
15 themselves.
16 Equally problematical is what the notice
17 of inquiry calls a major consideration, quote, to
18 determine how to define the scope of boundaries of a
19 particular class of copyrighted works, unquote.
20 The notice of inquiry quotes the
21 Commerce Committee report to the effect that, quote,
22 the particular class of copyrighted works should be
23 a narrow and focused subset of the broad categories
24 of works of authorship should be, that is,
25 identified in Section 102 of the Copyright Act.
26 Whether or not such a definition can be
PAGE 130
1 articulated, none of the papers has succeeded in
2 doing so. Indeed, it seems clear that no matter how
3 "class of works" is defined any exemption from the
4 operation of Section 1201(a)(1)(A) for such a class
5 will have the effect of removing the protection of
6 that section from other works not intended to fall
7 within the definition.
8 In conclusion, it is with some
9 puzzlement and even dismay that I regard the
10 positions taken by the educational and library
11 communities. They, as much as Time Warner, the
12 members of the Motion Picture Association and other
13 content owners depend on and should encourage
14 greater protection and greater availability of
15 copyrighted works.
16 Greater protection because in a digital
17 environment it makes possible increased production
18 of copyrighted works, as well as increased and
19 speedier distribution; greater availability because
20 it makes possible education and library services to
21 a broader public by newly developed media.
22 In helping to diminish piracy and other
23 dangers to copyrighted works, access controls have
24 and will increase the availability of a wide range
25 of copyrighted works to grant exemptions from or
26 otherwise weaken Section 1201(a)(1)(A), would have
PAGE 131
1 the effect of discouraging production and
2 distribution of copyrighted works, and particularly
3 from making such works available in digital format.
4 It seems clear, particularly in view of
5 the complete lack of any factual support for
6 delaying the effective date for Section
7 1201(a)(1)(A) or granting exemptions from that
8 provision, and particularly in view of the huge and
9 irreparable damage that would be done to copyright
10 by virtue of any such delay or exemptions, that law
11 and logic require that there be no such delay or
12 exemption at least at this time.
13 After the statute has gone into effect
14 five months from now, the interests that are opposed
15 to the statute can make a real world assessment of
16 its impact instead of the speculation proffered in
17 this inquiry and as provided by the statute makes
18 such submissions as they deem appropriate.
19 Thank you.
20 MS. PETERS: Thank you.
21 Mr. Weisgrau.
22 MR. WEISGRAU: Thank you.
23 First, let me thank you for the
24 opportunity to testify, and additionally I'd like to
25 thank the Copyright Office for its recent efforts in
26 making the registration system available to
PAGE 132
1 photographers finally.
2 MS. PETERS: Finally.
3 MR. WEISGRAU: We do thank you for that.
4 When I had small children, I used to
5 read them a book, and it was called Simple Pictures
6 Are Best, and it was a story about how a
7 photographer started out to take a photograph of his
8 two kids and then added the dog and then added the
9 cat and then added the wife and then added the
10 nieces and nephews and then added the plants and
11 then added the broom, and the picture became so
12 complicated that you couldn't tell what the subject
13 was anymore.
14 And as I sat here this morning, I began
15 to say, "Gee, I wish everyone would subscribe to my
16 own self-imposed rule, keep it simple, stupid,
17 because I've just heard so much gibberish this
18 morning that is not on point that it's almost not
19 worth rebutting. So I'm not going to take a lot of
20 your time with that."
21 I think the Register in her opening
22 remarks said, quote, the purpose of this rulemaking
23 proceeding is to determine whether there are
24 particular classes of works as to which users are or
25 are likely to be adversely affected in their ability
26 to make non-infringing uses if they are prohibited
PAGE 133
1 from circumventing technological access control
2 measures. I seem to think while that's a mouthful,
3 it is quite clear. I didn't hear anybody say
4 anything today really that was relevant to this that
5 made a persuasive argument. In fact, the most
6 persuasive argument I heard is by the gentleman who
7 sat in the seat this morning. Arnie and I -- sorry.
8 MS. PETERS: That's okay.
9 MR. WEISGRAU: Yeah. -- when he said,
10 "We cannot demonstrate adverse effect," and then
11 five minutes later, and he's on the record saying
12 that; five minutes later he says, "And this adverse
13 effect to the extent that it does exist is caused by
14 licensing, not access problems."
15 So what are we sitting here for?
16 However, we all have to earn our money.
17 So we're going to make some comments here which are
18 really legally based, and I do understand that Mr.
19 Perlman is the ASMP's General Counsel. He is a
20 lawyer and an amateur photographer.
21 I am a photographer and an amateur
22 lawyer. Therefore, it has fallen into my hands to
23 make the legal argument because I can get away with
24 more than he can, see.
25 When we looked at the charge given to
26 the Library of Congress, we noticed the adverse
PAGE 134
1 effects rule. We noticed the class of works, and we
2 also noticed a thing called a term "other such
3 factors," that you can comment on other such
4 factors.
5 So I want to talk a little bit about
6 factors about adverse risks to rights owners because
7 I think that's adverse risk. It doesn't all just go
8 one way, and I'll elaborate on that.
9 Victor pointed out to me this morning
10 that on page 181 of the current Copyright Act in
11 1201(c)(4), it says, quote, "Nothing in this section
12 shall enlarge or diminish any right of free speech."
13 I don't think you can read 1201(a) and
14 ignore 1201(c), and I think that clearly there's a
15 free speech issue here. It seems to me that freedom
16 of speech gives me the right to say what I want,
17 where I want, when I want, and to whom I want, and I
18 can also get paid for it if I want and someone is
19 willing to pay. Freedom of speech and free speech
20 are obviously different.
21 I frequently exercise my freedom of
22 speech, but it is not for free. Now, if you allow
23 this circumvention of access controls, you can
24 effectively force me to speak to parties to whom I
25 do not wish to speak because I have said I will not
26 speak this to anyone who doesn't pay me, and that's
PAGE 135
1 my right, I believe, constitutionally.
2 So I think that if you allow
3 circumvention of access control, you effectively
4 damage my freedom of speech rights.
5 Additionally, I think that the
6 Constitution and Fourth Amendment say that I have a
7 right to be secure in my premises, person, papers,
8 and effects, and not even the government of this
9 country except in the rarest of circumstances can
10 access my property without a warrant and due
11 process. Are we going to write a law now that says
12 some people can break and enter and access my papers
13 without due process? Because that's effectively
14 what you say.
15 You have taken the lock off my door.
16 If you take the lock off my door, then I
17 think that you have really damaged me in another way
18 because the Constitution and the 14th Amendment say
19 I have the right to equal protection under these
20 laws, and the moment anyone defines classes of works
21 to which access controls can be circumvented, the
22 moment you define the class of works, and I don't
23 care how narrow they are or how broad they are, you
24 have defined a class of rights owner and/or author.
25 At that moment, you have effectively
26 said this class of author/rights owner has rights
PAGE 136
1 under the law, and this class does not have the same
2 rights under the law. I think that I'm entitled to
3 equal protection under the law, and you can't define
4 me as a class, which says you can circumvent my
5 works, but you can't circumvent his. So I think
6 that there are some serious constitutional issues
7 here which are our other concerns, and they go to
8 the rights of people to be secure in their papers,
9 have equal protection of the law, and speak to whom
10 they want, and when they want and for a fee if they
11 choose.
12 Now, from our perspective here, what
13 became very evident this morning is that the cat is
14 out of the bag. This is not an issue of access.
15 What we heard today is that it is an issue of fair
16 use, and I was amazed to sit in the back of this
17 room and hear fair use described as a right. I've
18 always thought it was a criteria for evaluation to
19 determine whether you could defend against a use for
20 which you had no license and not a right.
21 If it was a right, it would be clearly
22 definable and everybody would have it automatically.
23 So I don't see fair use as a right. I see it more
24 as a defense.
25 What appears to me is that what we have
26 seen here from our opposing parties is that they are
PAGE 137
1 really upset because the world order is changing.
2 Well, I ask this question. Who said that libraries
3 will exist forever? I mean, it could be that the
4 Internet is the library of the future. I have a kid
5 in graduate school and one in college, and they
6 don't go to libraries anymore. They just use the
7 Internet.
8 I kept hearing this morning that we have
9 to facilitate fair use, and then I heard that the
10 rights of copyright owners are defined in 106 and
11 multiple sections thereafter, including 107, fair
12 use. I think that the rights of copyright owners
13 are defined in 106, and what 107 does is say in
14 certain instances you can ignore those rights if you
15 fit these criteria, and it's a fact by fact basis.
16 I just don't understand how fair use
17 creates any argument or can be the basis of any
18 argument for unauthorized access.
19 If I have a brick and mortar photo
20 gallery and on that gallery's walls I put
21 photographs, I lock the door and I charge admission.
22 I'm perfectly entitled to do that. Would the
23 Congress of the United States pass a law that said
24 someone walking by the store, by the gallery can
25 break the lock in order to come in just to see if
26 there's something they want to buy? I doubt it.
PAGE 138
1 Then how can we even contemplate setting
2 up any class of works to which individuals have a
3 right to break the lock, walk in, and take a look
4 around. We cannot distinguish between the brick and
5 mortar store and the Internet store. It's not
6 reasonable to do that, not in the changing
7 technological environment. Property is property and
8 rights are rights, and the existence of cyberspace
9 does not mean we have to have law that is founded on
10 some type of ether that we don't need to breathe.
11 I heard that we have to worry about
12 students in China who have to be able to access
13 information in the United States in the libraries.
14 I mean last year it was distance learning. Now it's
15 distance lending. I don't see where that has
16 anything to do with what we're talking about. We're
17 talking about the rights, owners' simple,
18 fundamental right to control the speech which he or
19 she creates and/or owns. And I don't see how anyone
20 came make any law or any regulation which says that
21 I don't have a right to control access in the
22 digital cyber world if I have a corresponding right
23 in the tangible brick and mortar world.
24 I think I've made my point. So I'm
25 going to stop just stop right there and not consume
26 any more of your time because I'm sure you'll want
PAGE 139
1 to go home, but you've got it.
2 As far as we're concerned, this comes
3 down to the simple basics. Authors and copyright
4 owners have rights under the Constitution, and we
5 think that the most compelling argument here is you
6 should not make a recommendation to Congress which
7 would even lead them to consider for one instant
8 creating a class of individuals which would have
9 less rights than others under the same body of law.
10 Thank you.
11 MS. PETERS: Thank you.
12 Now, we begin the questioning. Turning
13 to my extreme left, let's begin with Rachel.
14 MS. GOSLINS: Great.
15 MS. PETERS: You mean you're not
16 thrilled?
17 MS. GOSLINS: Right. Both of you argue
18 -- actually I just have one sort of basic question
19 at the moment -- both of you argue to some extent
20 that proponents of an exemption have not satisfied
21 the burden that they have by statute to show adverse
22 effects or an adverse impact. They argue to some
23 extent that the way you frame the burden of proof
24 would make it impossible for anybody to satisfy that
25 burden and render the congressional mandate to us
26 pretty much meaningless.
PAGE 140
1 We're heard the professors have needed
2 to circumvent DVD protection in order to access and
3 play movies for their class. We've heard that they
4 sometimes use proxy servers to get remote access for
5 students that are licensed to use databases, but are
6 not within the Internet when they access this.
7 So my question is, I guess, what kind of
8 evidence would satisfy you under your vision of how
9 this burden of proof works. How would a proponent
10 satisfy the burden of proof that they have?
11 MR. SORKIN: Okay. To start at least, I
12 think in the absence of an effective 1201(a)(1)(A),
13 1201(1)(a)(i), it's very, very tough to meet that
14 burden of proof. However, that may be -- the
15 question was asked this morning have you had any
16 adverse effect, anything as if the statute were in
17 effect today, and at least Professor Cohen and
18 Professor Neal said no.
19 It took them a long time to say no, and
20 they kind of worked their way around it, but the
21 conclusion was, no, there's been no effect. Now,
22 whether or not there will be such an effect come
23 October when the statute goes into effect is
24 something else again. In order to do that, you have
25 to have a much better crystal ball than I do about
26 what companies' content owners are going to do by
PAGE 141
1 way of protecting their works.
2 From all indications of which I'm aware
3 currently, and I haven't read a newspaper since this
4 morning, and for my company, particularly, that's
5 critical.
6 (Laughter.)
7 MR. SORKIN: But from all indications of
8 which I'm aware, while there are intentions to take
9 advantage of the protections offered by 1201, none
10 of it will have the kind of adverse effect about
11 which complaint has been made.
12 So I suppose I could dream up some kind
13 of mythical hypothetical, if you will, example of
14 what the proof would be. I would have a tough time
15 doing it today. Perhaps it would be something like
16 a company making DVD if you will or any kind of
17 work, a musical work available, and encasing it,
18 protecting it as the DVDs were protected by CSS and
19 not allowing access to it for any purpose
20 whatsoever, including, of course, what would be
21 legitimate purposes for faire use.
22 That would be on that company's part a
23 piece of unmitigated silliness. That's one of the
24 points I tried to do. We are not in business to
25 keep our stuff locked up and keep it away from the
26 public. Quite the contrary.
PAGE 142
1 MS. GOSLINS: Okay.
2 MR. PERLMAN: May I submit that based on
3 what I heard this morning, the burden of proof was
4 irrelevant because under any standard the question
5 was asked: how would you define the particular
6 classes of work to which an exemption should be
7 granted, and I did not hear a single tangible answer
8 to that question.
9 MS. GOSLINS: That's a whole other line
10 of questioning.
11 Just so that we're clear, what I hear a
12 lot of both of you saying, and as you've seen my
13 questions to the user community, to what extent can
14 you show adverse effects today, and in many
15 instances the answer has been we're not able to do
16 so today, but the statute does, in effect, ask us to
17 look into the crystal ball at least three years
18 ahead.
19 So taking that into account, what could
20 a proponent say to you that would make you believe
21 that at least from now until the next three years
22 there was a danger of this adverse effect?
23 MR. SORKIN: Perhaps the example that I
24 just made up. Perhaps I found a memo in your
25 company's files that says we are going to overturn
26 this world. We would be much better off if people
PAGE 143
1 did not play our CDs, if they did not see our movies
2 or read our books. So we're going to protect
3 everything and then sue anybody who even tries to
4 get a hold of them for any purpose whatsoever.
5 Absent such a thing I'm not imaginative
6 enough to devise some satisfactory thing that would
7 meet that burden. Quite frankly, I remain puzzled
8 by the congressional intention in having you look at
9 this now instead of after the statute comes into
10 effect, and we can all take a look and see what's
11 happening.
12 MR. WEISGRAU: May I just add to that,
13 too? I don't agree with the notion that you have to
14 do this projection of what might be adverse effect.
15 I forget the document we excerpted this from.
16 Victor has it, but I think it came from the Commerce
17 Committee. Quoting their words, they were looking
18 for, quote, distinct, verifiable, measurable impact.
19 Mere inconvenience is not substantial impact, close
20 quote.
21 I would add to that nor is fear
22 demonstrable impact.
23 It seems to me that Congress has asked
24 for verifiable impact, not the project. There is a
25 three year review period. If, in fact, things go
26 awry, there is a process three years down the road
PAGE 144
1 for them to bring in evidence of this adverse
2 impact.
3 Ms. Douglass I thought asked one of the
4 better questions of this morning, and she said if
5 it's not access that creates this impact, then where
6 might it come from, and one of the panelists said,
7 well, it could come from the fact that libraries
8 are poor. Well, I don't think that Congress said to
9 the Library of Congress, "Find some way to rearrange
10 the socioeconomic structure of this country to
11 resolve the injustices of unbalanced distribution of
12 wealth."
13 Libraries, their problem is that they
14 want it for free. Our problem is that we wanted to
15 get paid, that we want to be paid. That doesn't
16 seem to me to be the topic of -- the balance between
17 the two parties there of whether it's free or to be
18 paid doesn't seem to be at issue here. You're
19 supposed to be talking about adverse effect. They
20 can't demonstrate any of it. All they can do is say
21 it might be there.
22 Well, the world might end tomorrow, too.
23 Maybe we should just give up all laws, have a good
24 time.
25 MS. GOSLINS: I guess my last question
26 is how you would respond to arguments that we've
PAGE 145
1 heard, the specific problem of removal of access,
2 that more and more there are products to which a
3 library subscribes, and they have a fully paid
4 subscription for a year, for instance, which if they
5 had in a print version, they would then have the
6 individual issues, and when they cancel their
7 subscription they no longer have access to lawfully
8 acquired copies which they purchase, and they can't
9 use them what they would consider to be fair uses of
10 them.
11 It seems to be a relatively new problem
12 with, you know, or new issue that's come up with
13 technologies that now make that possible, which
14 necessarily exist several years back, and so I would
15 just be curious as to how you would respond to that
16 argument.
17 MR. SORKIN: Well, again, speaking in
18 terms of the people for whom I speak here, I would
19 have a first question as to whether there is any
20 contemplation of removing from the library acquirer,
21 let's say, on the expiration of some term removing
22 the product.
23 I can well understand that there might
24 be a term which would come to an end so there would
25 be no further supply of the product. Frankly, I
26 just don't know. Again, to my knowledge, although
PAGE 146
1 I've heard rumblings from other companies of doing
2 that kind of thing, it never struck me as logical.
3 If anybody at my company asked whether that should
4 be done at the end of the year, you take it back or
5 cause it to self-destruct or something like that.
6 If anybody should ask me, my recommendation would be
7 to the contrary.
8 Do I guarantee that my recommendation
9 would be followed? I'm afraid not, but that's the
10 only answer I have.
11 Now, it is, on the other hand, true. I
12 suppose one can make the argument that in the good
13 old analogue and paper world, if I rented you a
14 film, a book, a phonograph record, rented it to you,
15 at the end of the rental period I'm entitled to get
16 it back. Access implies a right to have or to get,
17 and depending on the terms on which access is
18 arranged, one can get it back.
19 So that may be a theoretical
20 underpinning, to answer your question, but quite
21 frankly, from my perspective I don't see it as
22 logical, economical, or appropriate.
23 MR. PERLMAN: If I may, the rabbit goes
24 into the hat when you refer to the thing as being
25 lawfully acquired because that begs the question of
26 what it is that has been lawfully acquired.
PAGE 147
1 This group must have phenomenal powers,
2 just awesome powers because what I heard this
3 morning was that you were being asked to grant an
4 exemption, and not an exemption from the anti-
5 circumvention provisions of the DMCA, but from the
6 universal economic laws that are evolving with
7 technology.
8 We, over the course of history, have
9 evolved from an economic basis that started out
10 grounded literally and figuratively in real property
11 to a point where it became grounded in tangible
12 personal property, and we are now moving into an era
13 when it is grounded in intangible personal property.
14 Because of that the basic economic model
15 is changing from sales of tangibles to the rental
16 and license of temporary and specified uses of
17 intangibles. What you've been asked to do is to
18 change that, and I'm afraid it's not within your
19 powers.
20 MS. GOSLINS: But how would you respond
21 to the argument that in the previous world the
22 balances that copyright is supposed to embody was
23 settled in statutory exemptions and rights that were
24 articulated by the statute? And now that we are
25 moving, as we seem to be hearing more and more,
26 towards a world in which that is regulated more and
PAGE 148
1 more by contract and less and less by statute, that
2 this is precisely the time that the people who have
3 the least bargaining power and who were protected
4 previously by the statute need to have those
5 protections reinforced in a world where contract is
6 now taking over some of the mechanisms that used to
7 be affected by the statutes.
8 MR. PERLMAN: Since I represent the group
9 that probably has the very least bargaining power of
10 any entity that you could possibly discuss today,
11 I'm content to allow market forces to determine the
12 way the economic world works to the extent that over
13 a period of time, that history reflects a basic and
14 enduring wrong, then we need legislation to change
15 it, but we haven't met that precondition.
16 MR. WEISGRAU: I think also they haven't
17 put forth any evidence that the new model is really
18 that adverse, this possible new model. The notion
19 of purchasing, I can purchase the whole book and
20 then I keep the whole book forever, and yes, maybe I
21 pay 29.95 for the book.
22 But under a new model I might be able to
23 just purchase the four pages of the book I actually
24 want to read and only pay 65 cents for it each time
25 I want to read it and end up saving money on it.
26 I mean there's two sides to the coin in
PAGE 149
1 terms of the licensing argument, and that is that
2 licensing can be specific and very, very clearly
3 defined, very limited pieces of content, and as we
4 have in the publishing industry where at one time if
5 you wanted to buy -- you had to buy a textbook, and
6 now today you don't have to buy a textbook. You get
7 a course back, which is a chapter from this one and
8 a chapter from that one, and you don't pay for the
9 price of the textbook anymore.
10 Well, technology makes that possible.
11 There's been no adverse effect in the publishing
12 industry in terms of the student's ability to
13 acquire knowledge to learn from, but technology has
14 changed the way that knowledge is assembled and sold
15 and packaged, and I think that's what's happening
16 here.
17 They can't demonstrate anything that
18 shows that it's going to do any damage to the public
19 good or welfare here, and the fact that to the
20 extent that specific examples were given this
21 morning by Ms. Cohen. She referred a couple of
22 times to Lexis and Westlaw.
23 Those models argue against her very
24 point because those are digital media that have
25 since their inception been given free access to law
26 students and given extraordinarily inexpensive to
PAGE 150
1 the educational community.
2 MS. PETERS: Bernard, did you have one?
3 MR. SORKIN: I thought there might be
4 two points which have been touched on, but that
5 might be raised further in answer to your question.
6 Number one, insofar as a contract might
7 be oppressive with respect to people who have fewer
8 resources or are disadvantaged, courts deal with
9 that almost routinely, but beyond that, if there
10 isn't the kind of oppression, a contract of adhesion
11 kind of situation, I don't think the copyright law
12 with or without the DMCA or the Copyright Office is
13 geared, and maybe it's unfortunate that they're not
14 geared to solving those kind of what you might call
15 material justice kind of issues.
16 More fundamentally, I think, to this
17 inquiry, and I tried to make the point in my
18 presentation, but perhaps missed the boat. What
19 we're coming into and have come into to a large
20 degree in the digital world is truly a new kind of
21 world relative to the kind of properties we're
22 talking about.
23 It's not easy and perhaps impossible to
24 apply the old rules of copyright as we knew it, and
25 I think the changes that are imported now by the
26 DMCA and particularly by 1201 radical as they may
PAGE 151
1 seem are absolutely necessary because if copyright
2 is seriously weakened or in my perception destroyed,
3 then that does tremendous damage, and there's no way
4 of taking advantage of all of the benefits that
5 digitization has to offer content owners, society,
6 the educational community particularly.
7 MS. PETERS: Charlotte.
8 MS. DOUGLASS: I have an interpretation
9 question, and it has to do with the difference
10 between -- I guess maybe if I could just go to
11 MPAA's statement, I guess it was in the comment, and
12 the question is: is there any difference between
13 focusing on the impact of the implementation of
14 technological measures and focusing on the
15 prohibition of circumvention of access control
16 measures.
17 I'm just trying to get our tasks
18 straight in our mind, and the MPAA seemed to think
19 that the copyright office in its notice of inquiry
20 was focusing on the impact of technological measures
21 as opposed to focusing -- you know, adverse effects
22 from the impact as opposed to adverse effects from
23 the prohibition on circumvention of technological
24 access measures.
25 So I'm asking. Are they one and the
26 same thing or are they different? And if they're
PAGE 152
1 different, can you just tell me, maybe give me an
2 example of one as opposed to the other?
3 MR. SORKIN: If I understand your
4 question correctly, Ms. Douglass, I'll try.
5 I think there are two different things,
6 although they may be different sides of the same
7 coin in a sense. The technological measures, the
8 protections provided by Section 1201 and, more
9 particularly for our purposes, by 1201(a)(1)(A), may
10 have an impact, and that impact is the subject of
11 the complaints we've been hearing from the library
12 and educational community and, I guess, from others.
13 And in answer to Ms. Goslins' question,
14 I tried to think of a hypothetical result, you know,
15 of what that impact could be.
16 On the other hand, that's different, and
17 I hope now I understood your question correctly.
18 That's different from the impact of prohibiting
19 operation of those technological measures. Am I
20 reading from the same page as you are?
21 MS. DOUGLASS: Yes, you are.
22 MR. SORKIN: That impact, I think, is
23 easy to see in terms of the effect on copyright
24 protection.
25 MS. DOUGLASS: Could you give me an
26 example, a concrete example that a layperson could
PAGE 153
1 understand?
2 MR. SORKIN: Yeah. Well, if we can
3 switch to a different part of 1201, yes.
4 MS. DOUGLASS: Okay.
5 MR. SORKIN: The DCSS case, where there
6 was actual circumvention of the protective device
7 that was intended to insulate DVDs from unauthorized
8 access. Quite actual, and the potentiality for harm
9 was and still is huge, harm not only to the
10 copyright owners of those motion pictures that were
11 the subject of this thing, but to an industry
12 because if that couldn't be cured, it would mean
13 that the motion picture studios would stop releasing
14 their movies in DVD.
15 That's not to the benefit of anybody.
16 The public benefits to some degree, to a large
17 degree depending on what kind of movie fan you are,
18 benefits to a large degree, let's say, from having
19 movies available in that format, and that's true for
20 many, many works which can be provided better in
21 many contexts in digital form.
22 But leaving that kind of thing aside,
23 that may sound a bit parochial. Look at it in terms
24 of distance learning, which everybody here has
25 fought battles on on one side or another, and is
26 accepted as a great, great public and societal good.
PAGE 154
1 If works can't be digitized, if works' owners will
2 not digitize them for fear of losing them
3 completely, that possibility goes down the drain as
4 well.
5 I hope I answered your question.
6 MS. DOUGLASS: Yes. I think so. You're
7 saying that an adverse effect from a circumvention -
8 - from being prohibited from circumventing -- I'm no
9 David Carson so I can't say "download" six times in
10 one sentence. So I'm going to stumble maybe a bit.
11 But at any rate, you're talking about
12 the difference between circumvention, adverse
13 effects from circumvention, and just adverse effect
14 from implementation. So adverse effect from
15 circumvention would be what the Linux users are
16 saying is taking place with respect to their DVDs
17 that they cannot --
18 MR. SORKIN: Right, right.
19 MS. DOUGLASS: -- play on their --
20 MR. SORKIN: Right, except that what the
21 Linux users have not paid attention to is the fact
22 that a license has been all along available to them
23 or to the manufacturers of machines that would use
24 the Linux system, and currently it is licensed. So
25 I assume they are happy and are sending the
26 Copyright Office letters of apology for overwriting
PAGE 155
1 (phonetic) the original report on it.
2 MS. DOUGLASS: The license free of
3 charge?
4 MR. SORKIN: No, but they're not
5 outrageously priced.
6 MS. DOUGLASS: Okay. All right. Thank
7 you very much.
8 I have another, I guess, general
9 question, and that is it seems to me that both sides
10 are saying -- maybe I won't say both sides, but both
11 the library interests and both the content owners
12 are saying that it doesn't make any sense to focus
13 on just classes of works because you say, Mr.
14 Sorkin, that if you focus on one class of works,
15 then you're disadvantaging that particular class of
16 works.
17 So does it make sense to have, say, like
18 a fair access provision? Would a fair access
19 provision make any sense similar to fair use, but
20 that focuses on those four or five categories that
21 were enunciated by Mr. Lutzker this morning?
22 MR. SORKIN: Before I struggle with your
23 question, I'd like to make one small modification.
24 I don't think I suggested that using classes of
25 works results in disadvantaging a class. What I
26 said was assuming that a class of works can be
PAGE 156
1 defined, and in my view that's a very, very tough
2 assumption, but assuming that to be the case, when
3 you define such a class application of the removal
4 of the protection with respect to that class will
5 necessarily result in spilling over to other works
6 that you don't intend to include in that definition.
7 And I hope you won't ask me for an
8 example because I cannot think of an example of a
9 class of works.
10 So far as fair access is concerned, I
11 don't think that's practical or appropriate. Access
12 strikes me as a particularly private, if you will,
13 notion, one not subject to the kind of relief, so to
14 speak, that fair use provides as an affirmative
15 defense.
16 What do I mean by that? If I have --
17 forgive me for frequently going back to motion
18 picture analogies, but I don't know very much about
19 anything else -- if I have the only good negative of
20 a great motion picture, I don't have to let anybody
21 come near it to make duplicates, to show it or
22 anything else. That's mine, and I could keep it
23 locked up.
24 That's the kind of thing I meant with
25 respect to the Salinger case. So I don't know what
26 would constitute fair access unless you apply the
PAGE 157
1 same kind of criteria as are applied with respect to
2 fair use, but that would entail a pretty drastic
3 revision of our property laws.
4 You know, copyright law in my view
5 carries a lot of freight, all of the exceptions that
6 are attached to it. There aren't many ownership
7 kind of laws that are so full of holes and
8 obligations imposed on copyright owners or, maybe
9 better put, denigrations from the ownership.
10 But ownership of a piece of tangible
11 property, yes, that's mine, and it may be that
12 society wants to change these things. It may be
13 that if I own a lot of milk and bread I should be
14 required to give it to people, but so far that
15 hasn't happened.
16 MR. PERLMAN: Fair use, fair access is a
17 red herring. It's a very seductive, attractive red
18 herring, but a red herring nonetheless for two
19 reasons.
20 First, it is beyond the scope of the
21 assignment that's been given to the Library of
22 Congress.
23 Second, it's been brought up many times
24 this morning by the user side. All of us can
25 vividly remember spending a couple of years of
26 pleasure in the CONFU process, the entirety of
PAGE 158
1 which was based on fair use.
2 Some that was universally agreed to
3 within the Digital Images Working Group and, I
4 believe, also within the CONFU body at large was
5 that if there were a simple, easy, readily
6 accessible licensing system, fair use would go away
7 because, in effect, the users would be happy to pay
8 a reasonable charge in exchange for the insurance
9 against having stepped outside of the fair use
10 boundaries.
11 We heard that over and over again.
12 Well, today we're talking about a technology that
13 provides exactly that, and all of a sudden they need
14 fair use. What they need is an exemption from the
15 same kind of economic constraints that I talked
16 about earlier. They are looking for free use as
17 opposed to fair use.
18 MS. DOUGLASS: I think that does it.
19 Thank you.
20 MS. PETERS: Rob.
21 MR. KASUNIC: I'll begin with some
22 questions to Mr. Weisgrau and Mr. Perlman.
23 Just following up on that last question
24 in terms of fair use and it being outside the scope
25 of what the Copyright Office should be considering
26 within this, fair use was repeatedly emphasized in
PAGE 159
1 the legislative history and also even within Section
2 1201(a)(1). The factors that the office is to
3 consider within this rulemaking are some of the same
4 factors that we find in the fair use analysis.
5 How then is fair use not a relevant
6 consideration even while there may be other avenues
7 for licensing availability? How is it not a
8 relevant consideration for adverse impacts?
9 MR. PERLMAN: It may be the result of
10 inarticulate drafting by Congress. It may be the
11 result of intentionally inarticulate drafting by
12 Congress. Your task is to find particular classes
13 of work to which an exemption should be granted. As
14 soon as you start talking in terms of use and what
15 is fair and what is not, if you grant an exemption
16 based on fair use, you have to grant that exemption
17 across the board, not to any particular class of
18 work. That's why I said it's outside of the scope
19 of what you have been assigned, God bless you, to
20 do.
21 MR. KASUNIC: Okay. Then if our task is
22 to work exclusively on particular classes of works,
23 there is certainly, as was pointed out earlier
24 today, there's a relationship within 1201(a)(1) of
25 that class of works to uses, users and noninfringing
26 uses with 1201(a)(1).
PAGE 160
1 And there was also the comment that
2 these class of works could be viewed as cutting
3 across broad categories, and that use of the term
4 "broad categories", being plural, wouldn't
5 necessarily restrict the class to any one individual
6 category. But, since this was used as a plural of
7 all the categories, which is really the scope of all
8 copyrightable works, that we could define a class of
9 works as overlapping a number of different
10 categories and basing that ``class'' on a particular
11 use.
12 Since we have not really been offered
13 any specific definitions for a class of works by
14 copyright owners, why isn't this view a satisfactory
15 way to go about this?
16 MR. PERLMAN: When you look at the
17 language as a whole, and when I was an English major
18 I was very much a believer in the new school of
19 discussion of interpretation, which meant that you
20 took a look at the words that you were given, and
21 you started there.
22 And when we look at phrases like
23 particular classes of works, the concept of
24 particular certainly connotes to me a very specific
25 analysis and a very specific treatment. If you're
26 going to deal with a use that cuts across virtually
PAGE 161
1 every classification of work, that to me is outside
2 of the assignment and outside the intention behind
3 the assignment.
4 MR. KASUNIC: Well, what if we look at a
5 particular type of noninfringing use as related? The
6 particular aspect of the class, is the particular
7 use, and how that cuts across those categories of
8 works?
9 MR. PERLMAN: Because you're talking
10 about a particular use as opposed to the use of a
11 particular class. That's why.
12 MR. KASUNIC: There were also some
13 comments stating that we can only look at the
14 particular adverse effects that are presently
15 verifiable and specifically identifiable, but we do,
16 again, have language in the legislative history that
17 explains that this rulemaking -- and this is in the
18 section-by-section analysis -- that the rulemaking
19 may also, to the extent required, assess whether an
20 adverse impact is likely to occur over the time
21 period relevant to each rulemaking proceeding.
22 So if there is any ability -- which, in
23 this particular time period is difficult to
24 establish verifiable adverse consequences to the
25 prohibition, since the prohibition hasn't taken
26 effect -- wouldn't it seem only reasonable that we
PAGE 162
1 look to some of these likely to occur adverse
2 impacts?
3 MR. PERLMAN: Absolutely, but I did not
4 hear any this morning that were likely to occur.
5 What I heard and saw were great and vague fears,
6 again, most of which were based around having to pay
7 money even though the reality is that perhaps they
8 would be paying less money and getting better access
9 in exchange.
10 MR. WEISGRAU: I think that, yes,
11 certainly you can look at that, but I think
12 something you ought to apply in terms of an
13 evaluation of the information is not what is
14 possible, but what is probable.
15 So to be examining people's worst
16 nightmares and fears and to have a rulemaking based
17 upon that is simply to base rules upon individuals'
18 paranoia. That doesn't make any sense to me.
19 There is no evidence that I've seen
20 anyone produce that would substantiate their claims
21 that things could move in this adverse direction.
22 If you look at the Internet, we have a site where
23 there are 70,000 previously protected images on the
24 Internet. You could not gain access to this site
25 without passwords and the like.
26 Now, what did we do? The trend is to go
PAGE 163
1 the other way. We took all that protection off so
2 that anybody can get in there at any time. There
3 was a time when you bought a Microsoft program that
4 you had to go through some contortions in order to
5 install it, and it would blow up or something if you
6 installed it twice, and they've taken all of that
7 off.
8 I don't see any evidence in the software
9 community, in the content community anywhere, I
10 don't see anything happening anywhere that would
11 lead one to believe that access controls are going
12 to be put up in such a way that they're going to
13 have this damaging effect. I mean could somebody
14 give us one iota of evidence that would lead us to
15 believe that there is even a small probability that
16 this will happen? I don't see it anywhere.
17 MR. KASUNIC: Okay. One final questions
18 for the both of you. You were talking about the
19 constitutional aspects of this situation and, from
20 the copyright owners' side, that there is a right to
21 speak and, what goes along with that, is the right
22 not to speak and to withhold certain elements. We've
23 had some Supreme Court comment on that very issue.
24 But in the context that the Court has
25 discussed that, it's been in regard to unpublished
26 works -- that one has the ability not to publish and
PAGE 164
1 not to put something forward. But once there is a
2 distribution to the public, then certain other
3 limitations and exemptions on copyright owners begin
4 to kick in.
5 How does that fit in with this -- where
6 works are distributed and where this is being put
7 forward to the public -- and how can that right not
8 to speak then be withheld?
9 MR. WEISGRAU: I think that, again, I
10 understand exactly what you're saying, and I support
11 it in theory in the direction you're going, but what
12 I want to point out is that from my reading of all
13 the language in the law, there's nothing that
14 defines clearly when something is published.
15 So suppose I make 20 copies of a disk
16 with access controls on it to be given to this
17 limited group of people, and maybe it has my
18 organization's strategic plan on it or something.
19 Does this mean that a librarian can hack through the
20 access controls if she gets a copy because she wants
21 to know if there's anything the library might be
22 interested in? Is that published or not published?
23 There's no bright line of what's
24 published anymore, is there? I mean I can bring
25 court cases in here that will show you that one
26 judge rules 50 copies was published and another
PAGE 165
1 judge rules 3,000 copies wasn't published. So I
2 don't know when something is published and when it's
3 not published, and I don't think that's the
4 criteria.
5 The fundamental criteria is do I have a
6 right to protect the information and to protect my
7 speech when, where, and to whom I give it, and
8 whether it's for a fee. I think that there is a
9 right to free speech, and I believe in that right.
10 I don't think that there is a right to
11 know. There is a right to pursue knowledge. There
12 is no right to know. We are not interfering with
13 their right to pursue knowledge, but sometimes you
14 have to go through the hoops to get the knowledge.
15 But I think the more compelling
16 constitutional argument is not just a free speech
17 one, but again, if you set up a class of works, you
18 are establishing a class of authors and/or rights
19 owners who will not have equal protection under the
20 law, and we've been to the Supreme Court before, and
21 I'm going to tell you if photographs end up in that
22 class of works because we don't know what classes of
23 works are, but if they were to end up in there,
24 we'll look for the case to make that point.
25 MR. SORKIN: May I add a point?
26 MR. KASUNIC: Yes, please.
PAGE 166
1 MR. SORKIN: I must apologize because
2 I'm going to be repeating something that I said
3 before, but I think consideration has to be given to
4 the thought in your thinking about this issue, given
5 to the proposition that there is something very,
6 very new about digitized works and the need to
7 protect them, and that the notion of publication may
8 not be as important in that context as it has been
9 in the paper and analog world.
10 The DMCA or Section 1201 particularly in
11 certain respects, I think, does not really fit
12 comfortably into a copyright law as we knew it, and
13 all of the amendments to the copyright law, and you
14 can start with 1909 and you come down through 1976
15 and so forth; they're of a different nature.
16 And now we come to something which is
17 startlingly different and startlingly different
18 because the requirements, the obligations, if you
19 will, to protect these kind of works are startling,
20 and I don't think we can necessarily comfortably
21 apply the old rules.
22 MR. KASUNIC: If I could follow up on
23 that, Mr. Sorkin, and ask you \226
24 MR. SORKIN: I had to open my mouth, I
25 think.
26 (Laughter.)
PAGE 167
1 MR. KASUNIC: -- that you had stated in
2 your initial comment that anyone wanting to make a
3 fair use of copyrighted work need only follow the
4 same steps as he or she would in absence of
5 technological protections, buy or rent a copy,
6 subscribe to a transmission thereof, or borrow a
7 copy from a library.
8 Well, is this the case now? You just
9 stated that we're in a very different world and some
10 of these things are very different. How do these
11 two fit together?
12 MR. SORKIN: They fit together because
13 we have put one foot and several toes of the other
14 foot into this new work, but all you have to do is
15 go to a bookstore, go to a movie theater, turn on
16 your television set, and you'll see that all of
17 these things, perhaps with a rare exception now and
18 then -- the Stephen King book, for example, about
19 which there's been a lot of discussion, was issued
20 only in digital form, but the plan at least as I
21 read about it was to issue it in paper form as well,
22 and that will probably happen very shortly.
23 And in his musings Stephen King allowed
24 as how paper is not going to disappear. So at least
25 for I don't know whether to say the foreseeable
26 future or for some reasonable period of time or for
PAGE 168
1 a long, but for some time you can do all of these
2 things, go to the library and get the book and so
3 forth.
4 MR. KASUNIC: Well, following up on
5 that, the bookstore and books, the analogy has been
6 used in your comments as well as in the legislative
7 history that access control is similar to the
8 situation -- that one's free to go in and buy a
9 book, but you're not allowed to break into the
10 bookstore to get it.
11 How does that fit with the situation you
12 had raised, the DCSS issue, and with the DVD
13 situation, where here we have an owner, that lawful
14 purchasers going into not the book -- we'll say the
15 DVD store -- and buying that. Not breaking into the
16 store, but going in and buying the DVD and then they
17 find that the DVD is locked?
18 Isn't that slightly different from the
19 analogy that Congress was initially thinking about?
20 The purchasers have paid for something? What did
21 they pay for?
22 MR. SORKIN: They've paid for the right
23 to own that DVD and to view the content, if they
24 have a licensed player. That's now where we come to
25 the new world aspect of it because if you went into
26 a store and bought just the CD or bought a video of
PAGE 169
1 that same picture, you would be, by virtue of having
2 that, creating the same order of danger to copyright
3 protection as you do when you have a DVD if the DVD
4 is not protected by virtue of the fact that it's in
5 digital form.
6 So what the purchaser has bought, and it
7 seemingly works for an awful lot of purchasers
8 because DVD has been a very successful enterprise,
9 to play it on a licensed player, and as I said
10 before, that includes these days the Linux machine.
11 MR. KASUNIC: Well, how does the
12 protection that is on the DVD protect access? I
13 noticed that from your statement that some of the
14 fears expressed by copyright owners in this digital
15 age are cheaply duplicated, cheaply transmitted, and
16 cheaply modified works. But all of those fears
17 concern Section 106 rights. That's something that
18 the conduct of circumvention does not prohibit. All
19 we have is a prohibition against circumvention of
20 access. In what sense does this technology that was
21 applied to DVDs -- whether that's still an issue or
22 not, it serves as an example for something that was
23 an issue -- 0
24 as opposed to attempting to protect some of these
25 other copy protections?
26 MR. SORKIN: I have a feeling we're
PAGE 170
1 about to fall off the edge of my technological
2 expertise, but what the access means is not as in
3 the old days, acquiring the copy so that you can
4 pick it up and hold it and take it out of the store.
5 What it means is you can have access to the work
6 included on the copy so that if you overcome that
7 protection, you can play it on an unlicensed player
8 or take it away and duplicate it.
9 MR. KASUNIC: Thank you.
10 MR. CARSON: Mr. Weisgrau and Mr.
11 Perlman, can you give us some examples of the types
12 of technological measures that photographers use to
13 control access to their works?
14 MR. WEISGRAU: None.
15 MR. CARSON: You mentioned that you had
16 to use passwords at one time.
17 MR. WEISGRAU: Yes, but that's a trend
18 that's gone away. Now, most photography sites on
19 the Internet and certainly, I think, most, if not
20 all, CD-ROM disks which contain photography are
21 simply accessible.
22 It's not inconceivable that if, in fact
23 unrestricted access is abused, that photographers
24 might not respond by controlling access again. All
25 we need is a few more decisions like Kelly --
26 (Laughter.)
PAGE 171
1 MR. WEISGRAU: -- which, you know,
2 define a whole new world of fair use.
3 Most people that create works, whether
4 they be corporate authors or individual authors,
5 create them to give them wide exposure and have them
6 be seen, sold, and to profit from them, and access
7 controls don't necessarily lend themselves to that
8 goal.
9 So I don't really know of any meaningful
10 photography site or any photography product which
11 has any access controls on it today.
12 MR. CARSON: That being the case, why do
13 you care what we do?
14 MR. WEISGRAU: We care because if, in
15 fact, the fair user community with the aid of
16 decisions like Kelly, if that expands, if fair use,
17 the whole concept, is expanded to a point where we
18 find it intolerable, then in fact we could put
19 restrictions on these devices and on these sites.
20 I'm not saying it's likely. At this
21 point there's certainly no talk in the industry of
22 doing that, but I'm concerned simply about not just
23 -- we care because it could happen, because of what
24 the government can do, and because still ultimately
25 I think that this whole exercise is really dabbling
26 in an area where you're tampering with people's
PAGE 172
1 constitutional rights for equal protection.
2 I mean I'm not a lawyer, but I do think
3 I'm a reasonable man, and I like the reasonable man
4 theory of law, and I ask you to go out on that
5 street and stop anyone and ask them this question.
6 Do you think it would be okay for the Congress to
7 pass a law which says it's okay for you to break and
8 enter in order to find out what's inside a building
9 in case you want to buy it?
10 And I think that most people would look
11 at you and say, "What, are you crazy?" I think that
12 most reasonable men would say, "You're crazy. Why
13 would the Congress ever do something that says you
14 can break and enter so that you can come in to see
15 what I have? Ask me. I'll show it to you if I want
16 to show it to you, and if I don't want to show it to
17 you, it's my right not to show it to you."
18 So I think that there's a fundamental
19 issue here that brings us to this table. It's not
20 immediate impact on photographers. It's immediate
21 impact on reasonable men and their rights under the
22 United States Constitution that we're here about.
23 MR. PERLMAN: I live in a town where
24 people still leave their houses and cars unlocked,
25 but I grew up in New York City, and I'm damned if
26 I'm going to do that. I want the ability to lock my
PAGE 173
1 door when I want to lock it.
2 MR. CARSON: Okay. The next question is
3 primarily directed at Mr. Sorkin if only because I
4 think Mr. Perlman has answered it, but I certainly
5 invite anyone to respond.
6 You were all here this morning. We had
7 some discussion -- actually the testimony and the
8 proposal of Professor Jaszi of a couple of days ago
9 -- which, to paraphrase it, would ask us to create
10 an exemption which would exempt any copies of works
11 lawfully acquired by the person who feels the need
12 to circumvent access control devices.
13 Do you have any problems with that kind
14 of exemption? And if so, what are the problems?
15 MR. SORKIN: Yes.
16 MR. CARSON: Well, you've answered the
17 first half of my question.
18 MR. SORKIN: First of all --
19 MR. CARSON: Mr. Sorkin, just make sure
20 you're speaking into the microphone.
21 MR. SORKIN: I'm sorry. I'm sorry.
22 Thank you.
23 I think we have to focus on the
24 distinction between access and exercise of what
25 we've been calling in all the papers and all the
26 releases copying as being shorthand for all of the
PAGE 174
1 rights in 106.
2 While access may be granted or may be
3 taken, while a work might be acquired as in the case
4 of the CD, that doesn't necessarily carry with it
5 the right to do anything else.
6 If you're importing fair use into your
7 question, then that as an affirmative defense might
8 result in the acquirer being able to copy or take
9 segments or do whatever it is that fair use would
10 allow under the particular circumstances, but to
11 devise such an exemption from 1201, I think, would
12 be harmful to the structure of the statute in that
13 it would kind of meld copying and access together,
14 whereas they should be kept separate in my view, and
15 also just destroy a substantial amount of
16 protection.
17 MR. CARSON: All right. But I want to
18 make sure I'm understanding what you're saying and
19 you're understanding my question because --
20 MR. SORKIN: Maybe not.
21 MR. CARSON: -- because what we're
22 talking about, I gather, is an exemption which would
23 simply say if you have lawfully acquired a copy of
24 the work, you have the right to circumvent
25 technological measures that control access, not that
26 you have the right to circumvent technological
PAGE 175
1 measures that control copy and so on.
2 MR. SORKIN: Oh, yeah. If that's it --
3 MR. CARSON: Right.
4 MR. SORKIN: -- if that's it, I think in
5 my view the access and the acquisition are the same
6 thing, but I don't understand how your example would
7 work, Mr. Carson because of the order of things.
8 You say if you have lawfully acquired.
9 That seems to precede the circumvention of access.
10 MR. SORKIN: Well, I suppose one could
11 imagine, and it's not my proposal, but I suppose one
12 could imagine you go into the store and you purchase
13 a copy of something. You take it home. You've
14 legitimately purchased it, and yet there is some
15 technological measure on there that you can't
16 overcome without some kind of circumvention.
17 MR. SORKIN: Well, then I must confess
18 to being lost in the technology here because there
19 must be in your mind and perhaps in everybody's
20 except mine a distinction between the access and the
21 acquisition. If it's available in the store for
22 purchase --
23 MS. PETERS: Let me add to your
24 question. I think they were getting at persistent
25 identifiers. So that if it was lawfully acquired
26 the first time, but the way that it operates you
PAGE 176
1 have to keep getting authorization for every time
2 you view it --
3 MR. SORKIN: Oh, okay. That's DVDX, the
4 DVDX kind of thing you're talking about?
5 MR. CARSON: Well, that might be one
6 case.
7 MS. PETERS: Yeah.
8 MR. SORKIN: Or something like that?
9 MS. PETERS: But I thought that that's
10 what they were after. They were talking about
11 second access as opposed to initial access.
12 MR. SORKIN: Oh, I see. I'm sorry. I
13 misapprehended what you were saying.
14 I think I would oppose that on the
15 ground that the second access, so to speak,
16 evidently the copyright owner wanted an additional
17 charge for that, and there's no reason why that
18 shouldn't be effective.
19 MR. WEISGRAU: Yeah, can I just --
20 MR. CARSON: Go ahead.
21 MR. WEISGRAU: It's a little confusing
22 to me, too, but I guess I understand where the
23 professor is coming from. I've listened to him
24 before, and always been amazed.
25 It seems to me that if you have this
26 lawful copy, you have with it the access, controls,
PAGE 177
1 and things you need to access it. One of a
2 copyright owner's rights is to determine the period
3 of a license, and if this license to use this thing
4 expires at a certain time and you buy it knowing
5 that condition, then that's what you bought, and if
6 you bought it not knowing that condition, shame on
7 you unless it wasn't disclosed.
8 If it wasn't disclosed, take it back and
9 get your money back. I don't think that that -- you
10 know, again, you shouldn't get the right to break
11 and enter because you don't like the deal you bought
12 into.
13 Secondly, I mean, let's apply that to
14 cable television. My wife heard that "The Sopranos"
15 was a great program. So she subscribed to HBO on
16 our cable system, proceeded to watch it for the
17 season, and then when it was over she canceled HBO
18 because she doesn't want to see it anymore.
19 Now, so we had lawful access to HBO.
20 Does that mean I can go climb up the pole now and
21 hook HBO up and use it again because I once had
22 lawful access to it? I don't think so.
23 MS. PETERS: Or I think it had to do
24 with -- another one was the CD-ROM that has the
25 expiration date, and I don't think, Bernie, it
26 applies to your products of entertainment. It's
PAGE 178
1 much more informational products that are constantly
2 being updated and sometimes --
3 MR. SORKIN: DVDX may be a DVD that
4 simply had an expiration date on it. You bought it
5 and you could play it for 24 hours, and unless you
6 drop another nickel in somebody's slot --
7 MS. PETERS: Yeah, that's what.
8 MR. SORKIN: Yeah. Although my company
9 didn't favor that because it was seen as, while it
10 existed, it was seen as a rival to our DVDs, in
11 principle I have no problem with that.
12 MR. WEISGRAU: I could see a situation
13 where a time expiration might be not only --
14 certainly I think it's legitimate under the
15 copyright owner's rights, but I could see a
16 situation where it might be important.
17 Let's take scientific and trade
18 journals, authoritative publications that are very
19 concerned about the quality of the documents which
20 they publish, and let's take it that science is a
21 changing body of knowledge so that in any given two
22 or three year period basic information that's
23 contained in this authoritative journal on disk may
24 well change. It may well no longer be active.
25 There may be some reason to compel a person to not
26 use old information if your reputation and your
PAGE 179
1 reliability as a source of quality published
2 material is dependent upon it being used in a timely
3 fashion.
4 MS. PETERS: And if I'm an archive and
5 my purpose is historical archiving, I just don't
6 have it? I want to know what the situation was in
7 1990, and it's gone because things have changed and
8 it's now 1995.
9 MR. WEISGRAU: You now don't have it?
10 No, I think you do have it.
11 MS. PETERS: How do I have it if it has
12 an expiration date?
13 MR. WEISGRAU: You have to get a license
14 to get past that expiration date.
15 MR. CARSON: If a license isn't
16 available because that particular product isn't
17 marketed anymore, then what should the situation be?
18 MR. WEISGRAU: Because that particular
19 product isn't marketed anymore --
20 MS. PETERS: It's been withdrawn. It's
21 stopped.
22 MR. WEISGRAU: -- I think that you're in
23 the same quandary that a lot of people are in. You
24 no longer have the information available to you.
25 Not every piece of information that's ever been
26 recorded is continually available to everyone.
PAGE 180
1 MR. CARSON: But sitting on this piece
2 of plastic I have, why shouldn't I be able to do
3 what I need to do to get to it if there's no other
4 way to do it?
5 MR. WEISGRAU: I don't think that that -
6 - what harm do you demonstrate if you can't get to
7 it? Now there's something you wanted to know that
8 you once new? I mean --
9 MR. CARSON: I'm writing a treatise on
10 the history of science.
11 MR. WEISGRAU: Right.
12 MR. CARSON: I'd like to be able to
13 reconstruct what the state of scientific knowledge
14 was in 1990. I can't do that. That knowledge has
15 been withdrawn from circulation.
16 MR. WEISGRAU: Well, first of all, I
17 certainly don't see that example ever existing, but
18 if it did, the first question I'd say is are you
19 really sure that there's no other place you can get
20 this information? I mean, this information exists
21 nowhere else?
22 MR. CARSON: Well, it's my hypothetical.
23 MR. WEISGRAU: That's to know.
24 (Laughter.)
25 MR. SORKIN: Although, if I may, one of
26 the greatest books I've ever read was a treatise
PAGE 181
1 called "Politics and the Constitution of the United
2 States," by W.W. Crossky. Just fantastic, and I
3 read it in about 1948.
4 I've been trying to find a copy ever
5 since, and they do exist, but they cost about $250,
6 which for me means they don't exist. It's like in
7 your hypothetical.
8 That happens in the paper world as well,
9 you know. It's nothing new, and it may happen, may
10 well happen less in the digital world unless some of
11 the owners do things that are eminently foolish
12 because there's no reason why that stuff should
13 disappear. It should be kept, and you can use your
14 credit card to get it, and so forth, I would think.
15 MR. PERLMAN: I think you're also going
16 down a technological blind alley. CD-ROMs were
17 obsolete before they ever hit the shelves of the
18 dealers. They will in the relatively near future
19 not exist anymore. What you will have is on-line
20 access to information.
21 If you have a right to that access and
22 if you either have a fair use right or a licensed
23 right to archive the information, then you need to
24 archive it as it changes because the database, the
25 Web site as it exists today is not going to be the
26 Web site as it exists tomorrow.
PAGE 182
1 MR. CARSON: Do I have a right to
2 archive it?
3 DR. BLANK: You tell me. If you have
4 access to it, perhaps you do. If you have --
5 MS. PETERS: It's an open access
6 situation.
7 MR. PERLMAN: Open access or a licensed?
8 More likely a licensed access which will tell you
9 whether you have the right to archive it, and if you
10 don't automatically, then it's up to you to
11 negotiate a right to archive it.
12 MR. WEISGRAU: And the other question
13 with regard to your earlier example, when you bought
14 this disk for your archive, did you know that it
15 would expire, that the time would expire; that some
16 day that disk would no longer be usable?
17 MR. CARSON: Well, like most people I
18 probably didn't read the fine print. So no.
19 MR. WEISGRAU: Well, in that case, you
20 know, you're a victim of your own foolishness, but
21 in fact, if you knew that and you made that
22 transaction, then shouldn't you be bound by it? I
23 mean didn't you when you purchased it enter into a
24 contract?
25 MR. CARSON: I follow the reasoning. We
26 could have an interesting debate on this for all
PAGE 183
1 afternoon.
2 MR. WEISGRAU: Sure, we could.
3 MR. CARSON: Let's move on to another
4 subject. You were all, again, here this morning,
5 and one conversation we had with the panel this
6 morning was whether one can define a class of works
7 in part by reference to the particular use of the
8 work or the type of use of the work that is in
9 question.
10 I think the consensus of the panel this
11 morning was, yes, you should be able to, and in
12 fact, it doesn't make sense to do anything other
13 than that. I'd like to get the reaction of this
14 particular panel to that proposition.
15 MR. WEISGRAU: Can you define a class of
16 feet by the streets they walk on? I don't think
17 that you can define a class of work by the use to
18 which it's put because any given -- let's take a
19 photograph. A photograph can be promotional. It
20 can be informational. It can be truly documentary.
21 It can be conceptual. It can be historical. It
22 could be of sports. It could be of historical. It
23 could be of news. It could be of products.
24 How are you going to define -- are you
25 going to define the class of work as photograph?
26 Well, that's too broad, isn't it, to just say that
PAGE 184
1 all photographs can be accessed?
2 I don't know how you can define a class
3 of work by the use. I mean it just doesn't make any
4 sense to me. I don't understand how you could
5 possibly do that.
6 What you're doing, what they're saying
7 to you is they're playing what I consider to be a
8 mind game. Let's make them believe that works and
9 uses are the same.
10 So what they're really asking you to do
11 is to make a judgment based upon a class of use, not
12 a class of work. Do you get where I'm going with
13 this? They're saying, "Look. We can't make an
14 argument here about class of works. There's no way
15 we can make an argument. We don't have anything to
16 stand on. So we're going to do two things. Number
17 one, we're going to attack the bench, and number
18 two, we're going to try to make you believe that
19 something is what it is not."
20 MR. PERLMAN: If you were supposed to
21 classify tools, you can hammer a nail in with a
22 hammer, and that's its job, but you can also hammer
23 a nail in with a wrench, with a screwdriver, with a
24 pair of pliers. That doesn't turn them into
25 hammers.
26 MR. WEISGRAU: And in Title 17, I think
PAGE 185
1 the word "work" -- I mean the word "work" exists,
2 and I believe the word "use" exists somewhere in the
3 --
4 MS. PETERS: Fair use.
5 MR. WEISGRAU: Fair use. I mean, the
6 word "work" is statutory. You're going to now
7 change it to include or to be influenced by the word
8 "use"? I don't see how you can do that. I really
9 don't see how you can do that with any fairness
10 whatsoever.
11 I'll think of another constitutional
12 argument about it.
13 MR. CARSON: What's your reaction, Mr.
14 Sorkin, to the problem?
15 MR. SORKIN: Well, the same reaction and
16 for almost the same reasons. In addition, use is a
17 function of somebody doing something, and there will
18 be a lot of somebodies who will do different
19 somethings with every kind of work in the copyright
20 lexicon.
21 So are we suggesting -- let's assume
22 that we come to a very broad definition, unlike what
23 the statute requires, that we use literary works.
24 Well, some people will use literary works for
25 reading for pleasure. Some will use them for
26 instruction. Some will use them as a basis for
PAGE 186
1 doing other works. Some will use them for public
2 performance, and more imaginative people than I can
3 think of other things.
4 But what then becomes the class with
5 which you're dealing? And let's assume that you
6 decide to apply a definition linked to use and you
7 say, well, through all literary works which are used
8 for public performance.
9 How do you limit the removal of the 1201
10 protection to those literary works instead of having
11 it spill over to others?
12 So I think what we have is kind of a
13 trap door with that kind of thing, and it strikes me
14 that the notion of use in this context may be the
15 way of sneaking some kind of fair use idea into a
16 place where it doesn't belong.
17 MR. WEISGRAU: I think that
18 fundamentally they're playing with the English
19 language this way. A work is an object or a
20 subject, and use is an action. So you can't define
21 a subject by an action that you take with the
22 subject.
23 MR. CARSON: What I'm hearing from all
24 three of you, I gather, is that a particular class
25 of works has to be determined with respect to
26 something inherent in the nature of the work itself.
PAGE 187
1 MR. WEISGRAU: I think so.
2 MR. SORKIN: I think that's right.
3 MR. CARSON: Then how do you fit that
4 together with what the purpose of this revision is,
5 which is to determine whether there are particular
6 kinds of works with respect to which the prohibition
7 on circumvention of access control measures is
8 making it impractical of impossible for users of
9 work to engage in noninfringing uses.
10 Isn't ultimately the focus -- doesn't
11 the focus ultimately have to be on the uses, the
12 noninfringing uses?
13 MR. WEISGRAU: Then they ought to write
14 the statute that way.
15 MR. CARSON: Are you telling us the
16 statute makes no sense?
17 MR. WEISGRAU: I'm not going to go so
18 far as to say it makes no sense. It's very
19 confusing.
20 MR. PERLMAN: Res ipsa loquitur.
21 MR. SORKIN: You know, the focus has to
22 be on the particular works as to which noninfringing
23 uses can't be made. I don't think the statute is
24 asking you to determine what are the noninfringing
25 uses that can't be made.
26 MR. CARSON: How can we determine the
PAGE 188
1 type of works if we're not thinking about what uses
2 might be noninfringing that would implicate the --
3 MR. SORKIN: Well, that's one of the
4 difficulties with the formulation of the statute,
5 one of the many, but again, to put it in terms of an
6 example that doesn't really work because I don't
7 think anything works here, but you might determine
8 that musical works, if protected by the 1201,
9 musical works if protected by 1201 cannot have any
10 noninfringing works -- I'm sorry -- noninfringing
11 uses made of them, and that would fulfill the
12 statutory requirement.
13 That particular formulation I don't
14 think would make any sense, but I can't think of any
15 that would.
16 MR. CARSON: It sounds like you're all
17 telling us that we're wasting our time in this
18 endeavor.
19 MR. WEISGRAU: Well, you said it, but I
20 think you're right.
21 MR. PERLMAN: You have been given an
22 unenviable task.
23 MR. CARSON: Well, isn't it incumbent
24 upon us to try to find some meaning in the words
25 that we're being asked to apply to make sense out of
26 it or should we just say, "It makes no sense, and
PAGE 189
1 therefore, we come to the conclusion that there can
2 never be any exemptions"?
3 MR. PERLMAN: I think that you are doing
4 exactly what you should be doing, which is the very
5 best that you can with the words that you've been
6 given, and based on the information that you've been
7 given this morning and presumably in the other two
8 days of hearings, you've been given no evidence on
9 which to find that there is an exemption that is
10 applicable to any particular class of work.
11 MR. WEISGRAU: And I think that, you
12 know, leadership is all about taking difficult
13 positions and stating them when it's necessary, and
14 the bottom line here is they didn't tell you to find
15 exemptions. They told you to examine the situation,
16 to evaluate and whether there should be.
17 And I think that what I'm hearing after
18 looking at all of this testimony and hearing all of
19 the statements is that your report should be there
20 are no class of works that should be exempt. Nobody
21 said you have to recommend exemptions. You can come
22 back and say there are no class of works exempt.
23 MR. SORKIN: What you have just said
24 sound kind of hopeless and may sound very dead end,
25 but the situation could well change diametrically,
26 180 degrees when the statute goes into effect, and
PAGE 190
1 you could take a look and see what the world is
2 really like and how different works are or are not
3 available for noninfringing uses.
4 MR. WEISGRAU: Again, I mean, talking
5 about what you should recommend, I'm going to quote
6 the Register from page 2 of her comments. "It is
7 clear from the legislative history that this
8 rulemaking proceeding is to focus on distinct,
9 verifiable, and measurable impacts."
10 What I'm saying is having heard it all,
11 I have not seen one iota of evidence that there are
12 any such impacts. Therefore, why do you need to
13 speak to a class of works if there is no
14 demonstration of a distinct, verifiable, measurable
15 impact?
16 MR. CARSON: Okay. One final subject
17 I'd like to raise, as most everyone in this room is
18 aware, the vast majority of comments we received in
19 this rulemaking related to the DVD situation, and
20 like it or not, Mr. Sorkin, you're the first person
21 to appear here who really, I think, has made that a
22 centerpiece of your testimony, at least a very major
23 part of your testimony and of your written comments.
24 First of all, you mentioned earlier, and
25 I just wanted to explore this a little more, that
26 there is now a license available, and I gather what
PAGE 191
1 you're saying is that people in the Linux community
2 now, just like anyone else with any computer running
3 Windows '95 or '95 or an Apple computer, whatever,
4 can do exactly the same thing with their DVDs.
5 MR. SORKIN: Yes.
6 MR. CARSON: I wish we had someone from
7 the other side here to tell me that that is the case
8 because in that case, we wouldn't have to ask you
9 anymore questions perhaps on this subject.
10 MR. SORKIN: I suspect you'd be happier
11 if somebody told you it's not the case.
12 (Laughter.)
13 MR. CARSON: We'll have an opportunity
14 in a couple of weeks when one of the preeminent
15 spokespersons for that point of view will be here,
16 and if we're told that's not a problem anymore, I'll
17 breathe a sigh of relief.
18 On the assumption that perhaps it's not
19 that simple --
20 MR. SORKIN: I'm sorry? On the
21 assumption?
22 MR. CARSON: On the assumption that it's
23 not that simple, that the availability of this new
24 license and the implication of this new license
25 hasn't resolved the problem, first of all, can you
26 tell us? None of us has great technical expertise,
PAGE 192
1 and we recognize that your technical expertise may
2 not be much greater, if at all.
3 The whole DECSS controversy, first of
4 all, I gather than the CSS coding, if that's what it
5 is --
6 MR. SORKIN: Yeah.
7 MR. CARSON: -- has a purpose of
8 controlling access; is that correct?
9 MR. SORKIN: Right.
10 MR. CARSON: Can you elaborate on
11 exactly what it does in a nontechnical sense?
12 MR. SORKIN: Well, the best I can do is
13 to say that if you took that DVD and played it on,
14 let's say, Linux or any unlicensed player, you'd get
15 nothing or distortion, but nothing that would be
16 worthwhile.
17 MR. CARSON: What is the purpose of
18 prohibiting access to the content on that DVD when
19 it's placed in a nonlicensed player?
20 MR. SORKIN: Because if the DVD were not
21 protected, then you could put it in any kind of
22 player, licensed or nonlicensed, and you can not
23 only play it, but you can also duplicate it.
24 MR. CARSON: All right. Well, aren't we
25 in the realm of a different subsection of Section
26 1201 when we're expressing those concerns?
PAGE 193
1 MR. SORKIN: Yes.
2 MR. CARSON: So why should we care about
3 protecting; why should we care about upholding a
4 provision of the law that restricts access to DVDs
5 to people who you'd love to have had the access,
6 just not on that particular machine?
7 That wasn't a very articulately
8 expressed --
9 MR. SORKIN: Are you saying why should
10 you care in this proceeding?
11 MR. CARSON: Yes. I mean, we're here to
12 determine whether we should exempt any classes of
13 works.
14 MR. SORKIN: Right.
15 MR. CARSON: And one could argue that
16 motion pictures on DVD are a candidate for that.
17 You may disagree on the merits. Can we say that?
18 MR. SORKIN: Sure.
19 MR. CARSON: It's a question of
20 relevance right now.
21 MR. SORKIN: Yeah. I'm not suggesting,
22 and if I did, I didn't intend to do it in my paper
23 or comments, that it's in any way determinative of
24 what this panel should do, of what your office
25 should do. The reason I brought the Reimerdes case
26 into this is simply as an example of what's
PAGE 194
1 happening in the digital world and an example of how
2 dangerous it is in this case, sad to say, even with
3 protection.
4 As you know, I'm sure, what happened to
5 the CSS, the content scrambling system, was that a
6 bright young guy in Norway about 18 years old hacked
7 his way through it, and it's that kind of thing that
8 I used as an example and perhaps didn't do it well,
9 but used as an example of the very critical need for
10 the kind of protection that 1201 offers in both
11 areas, both copying and access.
12 MR. CARSON: Yeah, go ahead.
13 MS. PETERS: On your CSS, it has both
14 access controls and copy controls, right?
15 MR. SORKIN: I believe so, yes.
16 MS. PETERS: Is the copy control "do not
17 copy anything" or is it that --
18 MR. SORKIN: Yeah.
19 MS. PETERS: -- the copy control is you
20 can make one copy, but you can't make the second?
21 MR. SORKIN: I don't know the answer to
22 that, Ms. Peters. I think --
23 MS. PETERS: What I was trying to get
24 at --
25 MR. SORKIN: Like SCMS you mean.
26 MS. PETERS: What I was trying to get
PAGE 195
1 at, we heard this morning, and we've heard it before
2 and it's in the comments that where you have access
3 controls for which there is a prohibition for
4 individuals to break that and copy controls where
5 there is no prohibition, that in many instances
6 these really have merged and, therefore, that's a
7 problem because there is no prohibition on the copy,
8 but there is on the access.
9 So to the extent that they're put
10 together in the same thing, that is a problem, and I
11 was trying to get at is this one of the situations
12 where the access control and copy controls make it
13 so that you can't --
14 MR. SORKIN: I understand the question.
15 MS. PETERS: -- make fair use at all.
16 MR. SORKIN: If one of my colleagues is
17 still here and I can call on him for assistance.
18 MS. PETERS: which one are you looking
19 for?
20 MR. SORKIN: Steve Metalitz.
21 MR. CARSON: We'll have the pleasure of
22 your formal appearance on a subsequent occasion, but
23 we welcome you for purposes of assisting Mr. Sorkin.
24 Steve Metalitz.
25 MR. METALITZ: Thank you.
26 I think your question gets to another
PAGE 196
1 issue, which is whether there is an exception to
2 1201(a)(1) based on the motivation or the reason why
3 an access control measure has been adopted, and I
4 don't think there's really any basis in the statute
5 for that.
6 To the extent that CSS is an access
7 control, I think Mr. Sorkin described the way in
8 which it's an access control. Then presumably its
9 circumvention will be a violation of 1201(a)(1), and
10 the trafficking in the DCSS hack already is a
11 violation of 1201(a)(2) as the court found.
12 Now, I'm not sure whether the court also
13 got into the 1201(b) issue because for trafficking
14 purposes it doesn't really make a difference --
15 MS. PETERS: No, I agree.
16 MR. METALITZ: -- whether it has access
17 control or copy control.
18 MS. PETERS: I agree. You heard all the
19 comments about that you really can't distinguish
20 between access controls and copy controls and
21 merger. Have you got any comments on that argument?
22 MR. METALITZ: Well, the only comment I
23 would make is that so far the courts have not
24 experienced this difficulty that some of the
25 witnesses perceive, and I think I can't say that it
26 would never arise, but I think it's a manageable
PAGE 197
1 distinction because the courts seem to have been
2 able to manage it.
3 MS. PETERS: Okay.
4 MR. WEISGRAU: May I just give a
5 practical reason --
6 MS. PETERS: Yeah, sure.
7 MR. WEISGRAU: -- why you should not
8 make DVDs containing motion pictures an exempt class
9 of work, a practical reason?
10 And that is that it took more than ten
11 years for the VHS to become a household item, for it
12 to really be adopted as a standard for use in the
13 United States. The hardware base of DVD players in
14 the United States is minuscule. Nobody is going to
15 get rich making DVDs right now because there's not
16 enough people to buy them.
17 And it's going to be years before there
18 is enough hardware base to make it profitable enough
19 to produce a work on DVD only. So in the interim --
20 I say "in the interim" because I think you're going
21 to go through this process in three more years,
22 right? -- all of these works, as Mr. Sorkin pointed
23 out earlier are on television, in the theaters, and
24 on VHS. So why take this one class of work?
25 They can go, but let them get a
26 videotape. DVD is not the only alternative when it
PAGE 198
1 comes to a motion picture. In fact, it's probably
2 the least accessible alternative.
3 So I would say you have to wait. Why
4 not wait and see what happens before you would say
5 it's a class of work that should be exempt?
6 MS. PETERS: Does anyone else have any
7 questions?
8 (No response.)
9 MS. PETERS: If not, our hearings in the
10 District of Columbia are closed, and I want to thank
11 all the witnesses and even those who sat in the
12 audience and stayed through.
13 Thank you very much.
14 (Whereupon, at 3:50 p.m., the hearing in
15 the above-entitled matter was concluded.)
16
17
18
19
20