Fill and Sign the Authorization Letter to Collect Passport on My Behalf Form

1 LIBRARY OF CONGRESS 1 + 2 + + + + 3 UNITED STATES COPYRIGHT OFFICE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 + + + + + HEARING ON EXEMPTION TO PROHIBITION ON CIRCUMVENTION OF COPYRIGHT PROTECTION SYSTEMS FOR ACCESS CONTROL TECHNOLOGIES + + + + + DOCKET NO. RM 9907 + + + + + FRIDAY, MAY 19, 2000 + + + + + The hearing in the above-entitled matter was held in Room 290, Stanford Law School, Crown Quadrangle, Stanford, California, at 9:45 a.m. BEFORE: MARYBETH PETERS, Register of Copyrights DAVID CARSON, ESQ., General Counsel RACHEL GOSLINS, ESQ., Attorney Advisor CHARLOTTE DOUGLASS, ESQ., Principal Legal Advisor ROBERT KASUNIC, ESQ., Senior Attorney Advisor NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 I-N-D-E-X Panel I: Paul Hughes Business Software Alliance, Adobe Systems 4 Emery Simon BSA 17 Fred Weingarten American Library Association 30 Panel II: Steve Metalitz 116 Panel III: Robin Gross Electronic Frontier Foundation 171 Dean Marks Motion Picture Association of America 186 Riley Russell Sony Computer Entertainment America 205 Jonathan Hangartner Bleem, Inc. 221 Morton Goldberg Cowan, Liebowitz & Latman, P.C. 231 NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 3 P-R-O-C-E-E-D-I-N-G-S 1 (9:45 a.m.) 2 MS. PETERS: 3 Good morning. We're going 4 to start our second day of hearings here at Stanford 5 University Law School. 6 statement. 7 those who are not aware of it. I will not repeat it. It is outside for This morning we have several witnesses 8 9 Yesterday I made an opening from the Business Software Alliance. We have Paul 10 Hughes of Adobe Systems, Incorporated, and then we 11 have Emery Simon representing DSA. We were supposed to have Steve Metalitz 12 13 representing a wide range of copyright owners. He 14 is stuck in Chicago because of bad weather. 15 be getting on a plane and may be able to join us 16 this afternoon, but we're not sure about that. 17 that may cause adjustment of the starting time this 18 afternoon. 19 what we'll be doing. 20 Weingarten, representing the American Library 21 Association. He may And We'll know by the end of this morning Also with us is Frederick So we will start with Business Software 22 23 Alliance, and between the two of you, you decide 24 who's going first. Paul? Okay. NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 4 MR. HUGHES: 1 Good morning. My name is 2 Paul Hughes, and I'm Public Policy Advisor at Adobe 3 Systems. 4 express my appreciation for the opportunity to 5 appear before you today at this important rulemaking 6 hearing required by the Digital Millennium Copyright 7 Act. Before turning to certain specific 8 9 On behalf of Adobe, I would like to issues raised by this rulemaking proceeding, I would 10 like to talk about the critical importance of 11 Section 1201 of the DMCA and Section 1201(a)(1)(A), 12 specifically, to software companies like Adobe which 13 confront a serious and pervasive piracy problem. 14 The anticircumvention rules enacted by the Congress 15 in the DMCA are the results of a deliberate and 16 considered response by the Congress to two facts: 17 dissemination of works in digital form poses very 18 real piracy threats to copyright holders; and the 19 use of technological measures to thwart such piracy 20 is needed to ensure the availability of legitimate 21 copyrighted works. Let me tell you a little bit about 22 23 Adobe. Our chairmen, John Warnock and Chuck 24 Geschke, founded the company in 1982 with a very 25 modest business plan. They envisioned employing NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 5 1 around 40 people in what was effectively a copy 2 shop, doing typesetting based on their Adobe 3 PostScript printer language. Unfortunately, they failed in that 4 5 business plan but instead launched Adobe PostScript 6 and PageMaker and went on to launch the desktop 7 publishing revolution. 8 for web, print and multimedia publishing. 9 graphic design, imaging, dynamic media and other Today Adobe offers software It's 10 software tools enable customers to create and 11 deliver visually-rich content across all media. We are now the third largest personal 12 13 computer software company in the United States, with 14 annual revenues of a hair over a billion dollars. 15 And it's obviously no exaggeration to say we 16 wouldn't exist -- in our current form, at least -- 17 were it not for the very strong intellectual 18 property laws in the United States that have 19 protected the creative work of all of us who work at 20 Adobe. Software has the dubious distinction of 21 22 being both the copyrighted work distributed 23 exclusively in digital form to which technological 24 protection measures were applied and also being the NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 6 1 first type of copyrighted work to be exposed to 2 massive digital piracy. The markets for software are changing 3 4 rapidly. With the establishment of the Internet as 5 a major avenue for distributing software products, 6 we see both a major business opportunity and a major 7 potential threat. First, I'd like to talk about the 8 9 opportunity presented by the Internet. It provides 10 tremendous prospects for all types of products and 11 services to be provided and distributed more 12 quickly, more efficiently and more cost-effectively 13 worldwide. 14 e-commerce sales just among businesses totaled $100 15 billion last year and will reach $1.33 trillion 16 worldwide by 2003. Forrester Research estimates that annual Technology products and, obviously, 17 18 software in particular are leading the way in online 19 distribution and are obvious candidates for such 20 distribution. 21 in the information technology sector, predicts that 22 the worldwide market for electronic commerce in 23 software reached $3.5 billion last year and will 24 grow to $32.9 billion by 2003, as more businesses 25 and consumers become familiar with shopping on the IDC, one of the major research firms NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 7 1 Net. According to some estimates, as much as 70 2 percent of software will be sold online by 2005. 3 that's the good news. Now, the threat. 4 So Unfortunately, like 5 other criminals, Internet pirates are ingenious and 6 adaptive, constantly finding new ways to adapt for 7 illicit purposes the very technology that has made 8 e-commerce possible. 9 To give you a sobering example, if you 10 search on the Internet today, you will find over 2 11 million web pages offering links to or otherwise 12 talking about "warez," the Internet slang word for 13 illegal copies of software. This rough indicator of the problem has 14 15 increased substantially over the past three years, 16 from 100,000 web page hits two years ago to 900,000 17 last year, and to over 2 million today. 18 every software product now available on the market 19 can be located on one of these sites, including all 20 Adobe products. Virtually Indeed, the Business Software Alliance 21 22 estimates that, of business software in use today 23 worldwide, fully 37 percent of it is pirated. 24 that figure doesn't include consumer software, NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com And 8 1 games, things like that, for which the piracy rate 2 frankly, I believe, is probably far higher. To protect ourselves against pirates, 3 4 the software industry has used a variety of 5 technological protection measures. 6 measures require a person loading a computer program 7 on their system to enter a passcode or serial number 8 as part of the installation process. 9 code is entered the software cannot be installed or 10 Often, these If the wrong accessed. More recently, the industry has used a 11 12 variety of encryption technologies. For example, to 13 access certain antivirus products purchased online 14 and downloaded, the recipient needs a decryption key 15 which is sent by separate e-mail. As the marketplace for computer programs 16 17 has developed, it has also become the practice of 18 most developers of business software products to 19 license their works to their customers. 20 proved to be a most efficient means of making these 21 works available to both vendors and consumers. This has A business or other user will often 22 23 receive a single copy of the work, and the license 24 will authorize the use of that product by a 25 specified number of persons. This practice, often NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 9 1 referred to as "site licensing," is now an industry 2 standard. 3 persons use the software, loading a specific copy of 4 the work in a computer often requires the 5 application of a serial number, password or access 6 code to ensure that the person is legally entitled 7 to access and use the software. Of course, hackers have adapted. 8 9 And to ensure that only authorized Today hacker sites offer serial numbers, access codes and 10 software program "patches" that bypass or circumvent 11 encryption or other technical protections that the 12 copyright owner may have employed. 13 search engine again, and searching this time for the 14 word "crackz" -- always with that great "z" -- we 15 recently found over one million web pages which make 16 available such patches, many of which are 17 specifically designed to defeat technological 18 protection measures. Using a popular To give just one example, an 19 20 enterprising hacker has written a small utility 21 program called "The Adobe Serial Number Generator," 22 that unfortunately does exactly what it's name 23 suggests. 24 pirate serial numbers that enable access to our It will generate usable -- but illicit -- NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 10 1 products and updaters by those who do not have 2 legitimate licensed copies of our programs. The making, distribution, and use of 3 4 this pirate serial number generator is analogous to 5 selling burglar tools or unauthorized satellite tv 6 descramblers. 7 are illegal under state and federal laws and 8 Congress intended to do the same thing with 9 copyright circumvention devices -- make them 10 The latter two categories of devices illegal. From our industry's perspective, 11 12 1201(a)(1)(A) is an indispensable legal tool needed 13 to prevent piracy and distribution of these illegal 14 access codes and patches designed to defeat 15 technological protection measures. 16 We believe that it is self-evident that 17 the Congress recognized the critical nature of this 18 cause of action. 19 and why this Administration pushed hard for the 20 anticircumvision provisions of the WIPO Copyright 21 Treaty that the DMCA implements. 22 Congress saw fit to establish this rulemaking cannot 23 be treated as an opportunity to overrule the will of 24 the Congress. That is why it is part of the law, The fact that The consequences for Adobe, and for NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 11 1 the software industry as a whole, would be 2 disastrous. The vast majority of the comments 3 4 submitted suggest that the anticircumvention cause 5 of action as a whole should be suspended. 6 obviously, strongly disagree. 7 action is not within the scope of this rulemaking, 8 and I'll have more on that in just a moment. We, In addition, such an 9 A great many other submissions argue 10 that non-infringing uses of works, such as those 11 contemplated under the fair use provisions of the 12 Copyright Act, somehow trump the copyright holders 13 right to license and enjoy their property interest. 14 Again, that issue is not the subject of 15 this rulemaking, but much has been made of the 16 supposed danger, such as the development of pay-per- 17 use business models which may develop if this cause 18 of action goes into effect. The argument that possible non- 19 20 infringing uses of works deserve a higher level of 21 consideration than the copyright owners' interests 22 has been the subject of much attention recently, 23 including recent litigation. 24 arguments to be ill-founded. We believe these NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 12 For example, in the recent UMG 1 2 Recordings, Inc. v. MP3.Com, MP3.Com made this very 3 argument, and the judge had no trouble disposing of 4 the argument. He wrote: "Finally, regarding Defendant's 5 6 purported reliance on other factors (analyzing the 7 four fair-use factors set out in Section 107), this 8 essentially reduces the claim that My.MP3.com 9 provides a useful service to consumers... Copyright, 10 however, is not designed to afford consumers' 11 protection, or convenience, but rather, to protect 12 the copyright holders' property interests. Moreover, as a practical matter, 13 14 Plaintiffs have indicated no objection in principle 15 to licensing their recordings to companies like 16 MP3.com; they simply want to make sure they get the 17 remuneration the law reserves for them as holders of 18 copyrights in creative works. Stripped to its essence, Defendant's 19 20 "consumer protection" argument amounts to nothing 21 more than a bald claim that Defendant should be able 22 to misappropriate Plaintiff's property simply 23 because there is a consumer demand for it. 24 hardly appeals to the conscience of equity." NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com This 13 As Judge Rakoff makes clear, the goal of 1 2 the Copyright Act is, in part, to enable copyright 3 owners to license their works for a fee. 4 nothing wrong or inappropriate about this. 5 that access control technologies facilitate such 6 forms of commercialization of works is not only 7 consistent with the intent of the Copyright Act 8 generally, but the specific intent of Congress in 9 enacting Section 1201(a)(1)(A). There is The fact Turning to specifics, the goals of this 10 11 proceeding are clearly spelled out in the statute 12 and relevant legislative history. 13 that the effective date of the Section 1201(a)(1)(A) 14 prohibition should be further delayed shoulder an 15 extraordinarily high burden of persuasion. 16 must demonstrate -- and I'm quoting here -- "through 17 highly specific, strong and persuasive" evidence -- 18 and now I'm not quoting -- a likelihood that, over 19 the next three years, the net impact of outlawing 20 theft of passwords, unauthorized decryption or 21 descrambling, and similar acts of circumvention will 22 be to harm substantially the ability to make 23 licensed, permitted or other non-infringing uses of 24 specifically defined "classes" of copyrighted 25 materials. Those who assert NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com They 14 The arguments present in the submissions 1 2 and the oral testimony make a number of arguments 3 why the cause of action should not go into effect. 4 We believe that each of these fails to make the case 5 required by law. Many submissions argue that Section 6 7 1201(a)(1)(A) should not come into effect on October 8 28, 2000 for any class of work. 9 this would have the same effect as overturning the We believe that 10 law through rulemaking, which I submit would clearly 11 be wrong. 12 possibility, it would not have enacted the cause of 13 action at all. Had Congress intended this as a The statute, by speaking about specific 14 15 classes of works, clearly directs the Librarian to 16 examine, on a case-by-case basis, the balance of 17 interests in each case. 18 and compelling, and addressed to specific classes of 19 works, and not to broad types of works such as, for 20 example, software. The case must be persuasive A number of submissions are devoted to 21 22 arguments specific to the software industry. 23 submissions argue that 1201(a)(1)(A) would impede 24 reverse engineering of software. 25 between anticircumvention rules and acts of reverse The interrelation NEAL R. GROSS (202) 234-4433 These COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 15 1 engineering -- and by which I mean legitimate acts 2 of studying and analyzing the computer program -- 3 were considered in detail by the Congress in the 4 course of its very long deliberations on the Digital 5 Millennium Copyright Act. Section 1201(f), as you know, was added 6 7 by the Senate during its consideration of the Act. 8 That section is a specific exception to 9 1201(a)(1)(A) and thus reflects the deliberate 10 judgment of the Congress in respect of exceptions 11 determined to be appropriate. 12 history of the Senate bill makes clear that the 13 specific intent of the Senate in adding Section 14 1201(f) was "to ensure that the effect of current 15 case law interpreting the Copyright Act is not 16 changed by enactment of this legislation for certain 17 acts of identification and analysis done in respect 18 of computer programs." The legislative Section 1201(f) is obviously not the 19 20 subject of this rulemaking. Whether changes to 21 Section 1201(f) are appropriate -- and Adobe does 22 not think any are needed -- is a matter for the 23 Congress, and the Congress has not directed this 24 rulemaking to consider that issue. NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 16 If you will permit, I'd like to make one 1 2 final point. The vast majority of the submissions 3 argue that truly bad things will happen if 4 technological measures can be used to control access 5 to software and other works. 6 fail to recognize the fact that the use of such 7 measures is not a new development. But these arguments 8 As I mentioned already, software 9 developers have long relied on technological 10 protection measures. Passwords and serial code 11 controls have been in use for over a decade. 12 Encryption technologies have been used for more than 13 five years. 14 many changes in how they use these technologies, in 15 part as a response to consumers' needs, and in part 16 to thwart pirates. Over the years, companies have made The submissions filed do not argue that 17 18 the use of these technologies has inhibited the 19 availability of works or harmed the legitimate user. 20 Why do they not argue this? 21 evidence to bear out such a claim. Because there is no The gist of the arguments made is that 22 23 creating this cause of action against hackers of 24 copy protection technologies would somehow change 25 everything. While the submissions raise a vast NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 17 1 array of hypothetical possibilities, I submit that 2 none present compelling evidence that the ongoing 3 practices have indeed created a problem. 4 There is substantial evidence, however, 5 that hackers are developing and posting patches and 6 other means aimed at defeating these technologies. 7 Section 1201(a)(1)(A) gives us a powerful message to 8 fight back, and this is what Congress intended. 9 Adobe and BSA respectfully submit that, 10 based on the submissions and testimony to date, the 11 record fails to demonstrate that any "particular 12 class of works" is likely to be subject, over the 13 next three years, to substantial adverse impact. 14 Therefore, we argue that Section 1201(a)(1)(A) 15 should take effect on October 28, 2000, as intended 16 by the Congress. 17 forward to taking your questions later. Thank you, and I look MR. SIMON: 18 Thank you. Rather than 19 reading another prepared statement, I thought I'd 20 kind of try to take on some of the issues that have 21 been raised in the various testimony to date, some 22 in Washington, some here yesterday. 23 about five or six of these that I'd like to kind of 24 quickly run through, and then I'd like to say a And there are NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 18 1 couple more words about the reverse engineering 2 issue as well. The goal of the copyright law is not to 3 4 promote use of works. It is in part to promote use 5 of works, but that's only one of its goals. 6 goal of the copyright law is to promote creative 7 expression. 8 subsection of this rulemaking the notion that a 9 predominant goal should be to promote use is simply The And somehow to read into this 10 wrong. That's not the intent of the act overall, 11 that was not the intent of the Congress in enacting 12 this. What the Congress did is balance a 13 14 series of interests, and it balanced, really, two 15 sets of interests: 16 create works, who make creative expressions and fix 17 them; and those who enjoy the benefits of those 18 works, we, society as a whole. the interests of those who And it balanced the harm posed 19 20 potentially by piracy to those who create, against 21 the harm posed potentially to users through the 22 application of technological measures to prevent 23 that harm, to prevent that piracy. In drafting 1201(a)(1) the Congress 24 25 determined the harm of piracy was greater. NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com That's 19 1 why the way this statute operates is the cause of 2 action comes into effect. 3 presumption. 4 there is some superseding compelling consideration. That's the fault It fails to come into effect only if And the question there is: 5 Is there 6 enough evidence now that wasn't there two years ago 7 to justify that superseding consideration? 8 think the answer is no. 9 any testimony of any particular instances beyond And I I think you have not heard 10 situations of mistake (like the Lexis situation of a 11 mistake in distributing a CD-ROM that had a time- 12 sensitive fuse on it) which actually suggests that 13 there's harm, that there's a problem out there. Is the mere presence of a technological 14 15 protection measure enough to raise a red flag? I 16 think the answer to that is clearly no. 17 Congress said in this act in Section 1201 overall is 18 that technological protection measures are 19 appropriate, necessary means that it approves of to 20 be used in the context of preventing people from 21 stealing works. What the The fact of the technological protection 22 23 measure is not particularly liked by some people 24 does not mean that it's a bad thing. 25 the testimony you have heard suggests that the mere But a lot of NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 20 1 fact that somebody has applied a technological 2 protection measure -- like The New York Times 3 applying an access control measure to its articles 4 creates a chilling effect and therefore creates a 5 potential problem -- the statute is not about 6 chilling effects. The harm that has to be established here 7 8 to suspend this cause of action is harm, actual or 9 potential. And a chilling effect does not meet that 10 test. There's nothing either in the legislative 11 history, in the Congress debate of this, or in the 12 statute itself that suggests that. 13 a lot of discussion that's just the opposite. Okay. 14 In fact, there's Class of works versus category of 15 works. Category of works is a term of art. It's a 16 statutory concept which lists particular sets of 17 things that fall into categories. 18 intended for class to be read as 19 it would have said category. 20 intended for class to be read more broadly than 21 category, it would have said that. Had the Congress broadly as that, Had the Congress But in fact it said -- the legislative 22 23 history suggests just the opposite. The examples 24 that it gives is that class is somewhere between a 25 category and an individual work. This piece of NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 21 1 paper that I wrote this morning, somewhere between 2 this and I guess all literary works is where class 3 falls. 4 you have to specifically figure out what that 5 universe of works is, where the actual harm is. And it probably falls a lot closer to the -- Harm is not -- and the reason I believe 6 7 that the Congress did this is because it did not 8 want a consequence where if, for example, one could 9 establish that chemistry textbooks, because they're 10 subject to access controls, become much less 11 available for educational purposes and that it 12 causes harm in the sense of one of the five factors 13 that have to be weighed here by the Librarian. 14 the fact that chemistry textbooks create that 15 problem and that therefore all literary works -- 16 which is the category that the chemistry textbooks 17 fall into -- should now no longer be subject to this 18 rule of law, that's clearly not what the Congress 19 meant, couldn't have been what the Congress meant. But Because with that, what you end up doing 20 21 is sweeping an enormous universe of works out the 22 door because there may potentially be a problem in 23 one subsegment of that universe. 24 versus class. So that's category NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 22 Class is clearly much smaller than 1 2 category, it's probably not as small as an 3 individual identifiable work. 4 between that and probably closer to that end of the 5 spectrum than it is to the end where categories sit. But it's somewhere Factors to be weighed in your 6 7 determination. The statute actually lists that the 8 Librarian has to examine five variables. 9 enormous amount of attention has been paid to the And an 10 fourth variable. That fourth variable says "the 11 impact of prohibiting the circumvention of 12 technological measure applied to copyrighted works 13 has on criticism, comment and use, reporting, 14 teaching, scholarship and research." I also point out that in that list of 15 16 five, it's a conjunctive, it's an "and." And you 17 have to weigh the impact in each of those areas in 18 order to make your determination, or for the 19 Librarian to make his determination. And I simply point to two of the other 20 21 factors. The first factor talks about the 22 availability for use of copyrighted works. 23 have received a substantial amount of testimony from 24 Paul, just a moment ago, and from others that the 25 availability of technological measures to protect NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com And you 23 1 our works is one of the reasons why we make works 2 available in more convenient forms to users. We talked yesterday about an example of 3 4 what would happen if that CD-ROM containing those 5 French cases had just not been available in digital 6 form. 7 law journals in physical form and tracked them down, 8 creating an enormous disincentive to research. 9 fact that those kinds of materials are available in That somebody would have gone to dozens of 10 digital form creates an enormous incentive to 11 The research, as well as other commercial markets. So the availability of works has 12 13 substantially increased, I would pose to you, 14 because of the availability and the increased use of 15 technological measures. 16 and no more in the list of five than any other, and 17 it can't be dismissed. That factor weighs no less It has to be weighed. The second factor I'll point you to is 18 19 the fourth one in the statute, the one that talks 20 about the effect of circumvention measures on the 21 market for, or value of copyrighted works. 22 making a determination that there may be harm -- for 23 example, with respect to chemistry textbooks because 24 in the classroom environment those textbooks become 25 less available and it creates an impediment to NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com In 24 1 teaching -- before you say that that is a 2 dispositive and final decision, you have to look at 3 the other factors. 4 have to look at is what does that decision portend 5 for the market for chemistry textbooks, the 6 commercial market for chemistry textbooks. 7 what the fourth factor talks about. That's And again, it's a conjunctive between 8 9 And one of the factors that you those factors. None of these is dispositive, and in 10 making the determination you have to weigh all of 11 them and balance them. 12 balancing exercise. This is ultimately a There's been a fair amount of discussion 13 14 of the evils of a metered world, of a pay-per-use 15 world. 16 commercial activity in our economy, global economy, 17 is based on metered use. 18 airport yesterday. 19 much time. 20 There's nothing wrong with that concept. I find this baffling. I rented a car at the I pay so many dollars for so If I want to keep it longer, I pay more. Telephone service. 21 A huge amount of I pick up the phone 22 to make a call, and I pay for the amount of time 23 that I use it. Airport fees, airport user fees. 24 pay user fees. We pay a whole bunch of fees based 25 upon use, upon the notion of the benefit that I NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com We 25 1 derive from that activity determines the price that 2 I pay for it. 3 universe of economic activity. That's at the core of a whole 4 The notion that that is now going to be 5 applied to copyrighted works being wrong is, to me, 6 baffling. 7 intangible property interest like a copyright, why 8 isn't it also wrong for it to be applied to any 9 other property interest? Because if it's wrong to be applied to an Like the fact that Hertz owns the car 10 11 that I happen to be driving around. And gee, I 12 really like this car. 13 navigation device in it, so I never get lost. 14 love to take it home with me. It's got this wonderful I'd So I have initial lawful access -- and 15 16 I'll get to that again in a second -- I have initial 17 lawful access to this Hertz car, and it's got this 18 wonderful navigation device in it. 19 the thing that makes the navigation device is a 20 combination of some hardware and some software. 21 The software's copyrightable. 22 could figure out some way to just take that software 23 out of there, and would only use it for fair use 24 purposes -- I'd guarantee it, I swear -- does that 25 mean that I could somehow take this because I have And actually, Does that mean if I NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 26 1 initial lawful access to this car? 2 I don't know. It just baffles me. The notion that property can be parsed 3 4 based upon the benefit that the user gets out of it, 5 and the fee charged can be assigned in a way that 6 corresponds to that benefit, that's a good thing for 7 consumers. If every time I flew to San Francisco I 8 9 had to buy a new car, that would make no sense at 10 all. And one of the increasing trends in the 11 software industry is to make applications available 12 off web pages, off the Internet, which enables 13 people to use, for example, a tax-paying program so 14 they can do their quarterly taxes by renting, in 15 effect, the use of that software off the Internet 16 instead of having to buy the product. 17 Plus, you're getting it constantly updated so you're 18 getting the latest tax laws. Much cheaper. Isn't that a good thing that instead of 19 20 my having to pay $100 for this software program, I 21 can pay $4 once a quarter? 22 are evolving in a way that creates fees based upon 23 the benefit that is being derived. 24 protection measures are integral to making that 25 possible. So the business models Technological That's a good thing. NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 27 Initial lawful use I think kind of has 1 2 been done to death. But let's kick this one one 3 more time. 4 was much discussed within the legislative process 5 that led to the enactment of the DMCA. 6 concept that was posited by many of the same parties 7 who are putting it forward to you in this rulemaking 8 proceeding. Initial lawful use was a concept that It was a The term does not appear in the statute 9 10 because the Congress rejected the concept. For you 11 to somehow read that concept into the statute where 12 the Congress specifically rejected it would do 13 violence to the role that's been assigned to the 14 Librarian. 15 scope of his role and his authority. It would be substantially outside the It is not for the Librarian to make 16 17 laws; it's for the Librarian to make rules 18 implementing laws. 19 overturn what the role of the Congress is. It's not for those rules to I also find the concept of initial 20 21 lawful use kind of baffling in the library context. 22 Let's do a library context. 23 Law School, and Georgetown Law School permits its 24 alumni and its students to use the library but does 25 not permit the general public to use the library. I went to Georgetown NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 28 So does that mean that if, for some 1 2 reason I, as an alumni, do have initial lawful 3 access to that library on a wonderful Friday 4 afternoon in May, does that mean that I can go into 5 that library at four in the morning on Christmas Eve 6 as well? 7 that mean that I can get in again and again? 8 Obviously, it doesn't. The fact that I got in once legally, does It can't mean that. 9 Does the fact that I took a book off the 10 shelf and read it and used it for research mean that 11 I can now take that book with me? 12 doesn't. 13 test simply supposes that there's only such a thing 14 as one permission. 15 can give you permission or not give you permission. Obviously, it The notion of initial lawful access as the I only have an on/off switch. I That simply is contrary to all the 16 17 business models that are evolving in a digital age, 18 particularly for a software industry but I think for 19 other industries as well. 20 that you would adopt -- which I would argue to you 21 is simply not permitted because it's outside the 22 scope of rulemaking because it was specifically 23 rejected by the Congress -- but if that were to be 24 the rule that you would adopt, you would defeat the 25 entire purpose of this provision. And if that is the rule NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 29 There's a problem that's common to all 1 2 the concepts that have been raised, of the 3 categories that have been suggested to you, whether 4 they're some variation on the initial lawful access 5 notion or thin copyrighted works or some other 6 concept. 7 matter how you try to parse them, they ultimately 8 end up swallowing the whole rule. And the problem with them is that no There's really no way to say this is an 9 10 initial lawful access, fair-use type, thin kind of 11 work; and that isn't. 12 other. 13 anything. They're all either one or the Fair use can be exercised with respect to Okay, last point. 14 You really have only 15 one determination to make, and that determination is 16 adverse effect. 17 to find harm. 18 stops. And the burden of finding harm is pretty 19 high. The burden is for people to present to you 20 specific instances where it has occurred. 21 no action. It's really a harm test. If you do not find harm, the inquiry Resist the temptation to act. 22 You have 23 bureaucrats don't like to do nothing. 25 like to do stuff. I understand, having been a bureaucrat, that 24 No harm, Bureaucrats And I understand that you've been NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 30 1 charged with rulemaking, and you have this enormous 2 temptation to do something. 3 and smiling at me. 4 You know, sometimes you avoid making mistakes when 5 you do nothing. Don't do anything. Okay. 6 They're all fidgeting It's cool. One last word and that's about 7 reverse engineering, which is an issue that is 8 entirely outside the scope of this rulemaking. 9 me say that again. Let It's entirely outside the scope 10 of this rulemaking. It is a matter specifically, 11 thoroughly, comprehensively addressed in Section 12 1201(f), which creates a specific exception to 13 1201(a)(1)(A). 14 and hard, fought about it, deliberated, and enacted 15 it. The Congress thought about it long That's it. It may be a lousy rule, but it's not for 16 17 you to say that. It's for the Congress to come back 18 and think again and say, "Hey, we messed up. 19 got to do it again." 20 posed to you in this rulemaking. 21 you. Or not. 22 MS. PETERS: 23 MR. WEINGARTEN: We've That is not the issue Thank Thank you. Fred. Thank you. Actually, I 24 haven't been a bureaucrat in 20 years myself. 25 experience is that the typical bureaucrat doesn't NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com My 31 1 want to do anything. 2 And so I'm here to urge you to do something. My name is Fred Weingarten, also known 3 4 as Rick or Frederick Weingarten. I direct the 5 Office for Information Technology Policy for the 6 American Library Association, OITP. 7 research and analysis office for the Library 8 Association. We're a small And for the last year I've had the 9 10 privilege of working for the five library 11 associations in Washington -- the Association of 12 Research Libraries, American Association of Law 13 Libraries, Medical Library Association and the 14 Special Library Association -- in addition to ALA in 15 trying to do some background digging on this issue 16 and support their efforts in this rulemaking. 17 so I'm pleased today to speak for all of those. And I come before you, not as a lawyer, nor 18 19 even in fact as a librarian, as some of you may 20 know. 21 on information policy, including intellectual 22 property issues for many years. 23 trained as a computer scientist, but my old 24 colleagues have warned me long ago never to apply 25 that word to myself these days. I'm a policy analyst. I've worked off and on I was originally NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 32 But I was a computing research manager 1 2 for the National Science Foundation for many years. 3 In fact, I made some of the early grants that led to 4 the NSF.net and Internet, and, thus, may be the 5 cause of some of this heartburn and churning that 6 we're all going through these days. I've also worked at the Congressional 7 8 Office of Technology Assessment where, in fact, in 9 the '80s we did more than one study of the impact of 10 technology on intellectual property law. And, in 11 fact, the first study we did was for Senator 12 Matthias and Bob Kastenmeyer's committees. 13 sorry Steve Metalitz didn't make it because when he 14 was working for Senator Matthias, we worked with him 15 very closely on these issues. And I'm In our first report, one of the 16 17 questions that the Congress had asked was whether 18 they couldn't resolve some of these technology 19 issues once and for all. 20 copyright law that anticipated technological change 21 and struck the right balances so they didn't have to 22 constantly revisit? 23 very well welcomed because it was no. 24 this rulemaking here right now is evidence that we 25 were right. Couldn't they pass a And one of our answers was not And I think NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 33 You've really got an incredibly 1 2 difficult task, I think. 3 really a very confusing law, many of the terms are 4 vague, ambiguous. 5 law's Section 1201 contains a basic paradox. 6 you're being asked to resolve that paradox in this 7 rulemaking without a heck of a lot of guidance. And in our view, in fact, the And Although the description of the process 8 9 Partly because the law is of the bill made it sound very rational and 10 deliberative and carefully thought out, that's not 11 my recollection of how that bill came to pass. 12 was extremely contentious, right up to the end. 13 Lots of different views, two different committees of 14 jurisdiction in the House, all fighting over what it 15 meant and what it should cover. It And so, in some sense, recourse to 16 17 legislative history for guidance is not too useful, 18 either. 19 already testified for us on that. 20 that we think that itself is a debatable proposition 21 for this panel to think about. But other people closer to that have But we would say And, finally, you're really dealing with 22 23 fundamental issues. I mean, copyright law is rooted 24 in the Constitution. 25 basic conflict between the public interest and all Rental cars aren't. NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com So the 34 1 of those terms in the law that we sort of encompass 2 with the term fair use -- with small F, small U -- 3 are deeply embedded public policy values, and one 4 can't dismiss them lightly. So we've raised in our responses and in 5 6 our testimony, I realize, some broad issues, broad 7 concerns, maybe uncomfortably broad. 8 it's very important for this panel to consider the 9 fundamental public policy environment in which the But we think 10 rulemaking is taking place. And we understand that, 11 at the end of the process, you have to go into a 12 room and really decide specific words and get into 13 details. 14 there is a context that I think we really need to 15 raise. And that is a tough problem for you. But I mentioned that the law has a basic 16 17 paradox. 18 is whether technological measures intended to 19 control access to digital works also prevent users 20 from exercising their rights under copyright law to 21 use the material in non-authorized but non- 22 infringing ways. 23 us that they do. And it seems patently obvious to In the first place, circumvention is 24 25 And the basic question before this panel defined by the law as bypassing a technological NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 35 1 measure without authorization. 2 limitations in the law are, by definition, 3 unauthorized uses. 4 technological measure itself is programmed to step 5 aside -- or in some sense, maybe pre-authorize 6 unauthorized use -- it must block a non-infringing 7 lawful use. Therefore, unless the And that's a basic paradox in the law. Let me say that, as an aside, that it's 8 9 Fair use and other not clear to me from my long ago technical training, 10 that the technology needs to be that rigid. That we 11 can't have fair-use soft or fair-use friendly 12 technological measures that achieve the objectives 13 of preventing piracy and yet are flexible enough to 14 allow public interest to be fully exercised. But that's an area in which we, in fact, 15 16 in my office are trying to open a dialogue with 17 people in the industry with some of the newer 18 entrepreneurial e-book and e-library firms. 19 started talking with them and, in fact, would like 20 to work out some sort of convergence of library 21 service models and business models that doesn't end 22 up in a food fight in Washington, which doesn't help 23 anybody. Although it pays my salary. It seems to me that there are four 24 25 We've questions that you have before you. One, does a NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 36 1 technological measure that controls use also control 2 access? 3 little later, but I think the record for the hearing 4 has clearly established that. The answer is yes. Second question. 5 And I'll discuss that a Are there now or are 6 there likely to be in the next three years 7 technological measures that persistently control 8 access or use after a user has lawfully acquired a 9 work? Again, we think the record unambiguously 10 establishes that the answer is yes. Such measures 11 already exist, and these persistent controls are 12 really central to business models envisioned by the 13 content community. What works will be or are protected by 14 15 such measures? Well, I think one could reverse the 16 question and say what won't be. 17 Steve isn't here, but let me just read the range of 18 industries he will be representing when he 19 testifies: 20 Composers, Authors and Publishers; Media 21 Photographers; Publishers; Association of American 22 University Presses; Authors Guild; Broadcast Music; 23 Business Software Alliance; Directors Guild; 24 Interactive Digital Software; McGraw-Hill Companies; 25 Motion Picture Association; Music Publishers' Let me just read -- Film Marketing Association; Society of NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 37 1 Association; Professional Photographers; Recording 2 Industry. These people are all interested in this 3 4 hearing. Why are they interested in it? Because 5 they all want to use technological measures to 6 protect and market their works. 7 then, say "Well, it's just this work that is of 8 concern to us." So how can we, The other reason that we look for a 9 10 broad exemption, of course, is that libraries don't 11 like to play favorites. 12 diverse community. 13 different communities, and it is hard to imagine a 14 kind of work that is not in our concern that we be 15 able to provide our patrons with access to it. We serve an incredibly Different libraries serve So what's the harm? 16 Well, we believe 17 that the record has established the existence of 18 harm in four ways. 19 use is basic public policy rooted in copyright law, 20 a balance required by the Constitution, any 21 diminution of it through strict interpretation of 22 Section 1201 is de facto serious harm. First, we argue that since fair 23 You're removing from the public a basic 24 right they have or a privilege -- however you might NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 38 1 use the term -- under copyright law. 2 And we should not have to go any further. Those rights and privileges have been 3 4 established for 300 years. First in British common 5 law, and then in U.S. law. It's been upheld by the 6 Supreme Court for many years. 7 policy. 8 and re-argue something that has been in the law for 9 300 years? It's basic public Why should we have to show and re-establish Secondly, current experience with 10 11 licensed products in which license terms are 12 protected by technological measures shows that harm 13 is already being experienced in areas such as 14 archival rights and first sale. 15 Copyright Office and the Librarian have every 16 legitimate reason to presume that these limitations 17 are just the leading edge of a rapid technological 18 trend, and that such harm will undoubtedly increase 19 over the next three years. 20 this issue of why I use term "licensing." 21 back to that in a minute. Libraries, the And I'll get back to I'll get Third, although the operative section of 22 23 the law has not yet come into force, it is 24 reasonable to presume that when it does, the threat 25 of criminal penalties on users, coupled with the NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 39 1 vague and broad nature of the anticircumvention 2 provisions, is going to result in a severely 3 chilling effect. 4 on some of the testimony or some of the responses, 5 that librarians just can't wait to get out there and 6 hack. 7 piracy for their users. 8 in my years working for the Library Association is 9 that librarians tend to be a fairly conservative 10 It may have seemed, based And just can't wait to provide havens for In fact, what I've observed lot. They really have other things to do than 11 12 to try to figure out from day to day what the 13 copyright law is letting them do or not. 14 such an ambiguous environment, if there's threat of 15 criminal penalties particularly or lawsuit, their 16 answer will be no, even if the result is harm to the 17 user or denying the user access that they might have 18 legal rights to. And in 19 Fourth, it's clear that these controls 20 are not only for the purpose of preventing piracy, 21 but they are to implement and enforce a new pay-per- 22 use model on all information users. 23 that we're not asking you to overturn a pay-per-use 24 business model. 25 Office, not the job of copyright law. Now, let me say That's not the job of the Copyright NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 40 But it is the job of copyright law to 1 2 retain a balanced social policy in that environment. 3 And, in fact, if we are moving towards that model of 4 information sale, the role that libraries and 5 schools play in providing safety-valve access to the 6 information works is even more important. 7 even more important to protect that role. Let me quote from just one publicity 8 9 And it's announcement from a vendor. And I'm not going to 10 name the vendor in this. I really don't want to pick 11 out and embarrass a particular firm. 12 reflects, I think, the view of the industry. It really "This firm has developed a way for 13 14 publishers --" and I'm quoting -- "to receive 15 revenue each time a student accesses even a single 16 page of a title. 17 before. 18 that have been read and studied thousands of times 19 over the years in libraries (yet have not generated 20 new income) will now produce new revenues and become 21 more valuable assets to publishers." This has never been possible Thus, older titles and out of print books Now, if that isn't a basic threat to the 22 23 fundamental role that libraries have served and 24 schools have served over the last couple hundred 25 years, I don't know what is. We're not speculating NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 41 1 here; we're not imagining problems. We're saying 2 that this move to a pay-per-use model threatens the 3 very basic foundations of what libraries and schools 4 are all about. 5 happening, for us to provide or protect the safety- 6 valves inherent in fair use. And it is important, if that is Let me finish by addressing four 7 8 particular topics that I think have caused some 9 confusion in the past. And although my addressing 10 them will probably increase rather than decrease the 11 confusion, I've been wanting to do this after 12 watching all five days of hearings. The first is the problem of access and 13 14 use. I think for the purposes of Section 1201, 15 there's simply no useful distinction between the 16 term "access" and "use." 17 prevent circumvention for use. Every time one uses 18 a digital work one accesses it. All technological 19 controls control access. Section 1201 does not So if one wants to extract from a work, 20 21 one wants to print a work, one wants to play a movie 22 on a DVD or play a song off of a CD, or view a 23 picture, what you're really doing is accessing even 24 though, from your terms, it's a use. 25 inseparable from use. So access is NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 42 And in my testimony I quote Judge Kaplan 1 2 on the Reimerdes case. That may be the only thing 3 that Judge Kaplan said that we might agree on, but 4 we think that he clearly views access as playing the 5 DVD on a computer. Secondly, the problem of persistent 6 7 controls. We've called these measures that continue 8 to control access after the work is initially 9 acquired persistent controls. That can be as simple 10 as a database system that requires repeated use of a 11 password each time one logs on to use it. 12 can be far more complex as technology evolves. Or they These persistent controls are not just 13 14 for the purpose of protecting against piracy, but to 15 develop and enforce new business models, many which 16 seek to charge for uses that in the past been free 17 once a work has been lawfully obtained. Once again, we're not against the 18 19 development of those new business models. But we 20 don't think copyright law needs to be invoked to 21 protect particular business strategies. 22 quote from a report by an industry marketing firm 23 that serves the publishing industry: Let me 24 "For the past several years, digital 25 rights management (DRM) has focused primarily on NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 43 1 protecting digital content from illegal or unwanted 2 uses." 3 five days of testimony. And you've heard a lot about that in the "Lately, though, the scope and emphasis 4 5 has been evolving to include more than just 6 copyright protection ... the pressures and 7 opportunities in digital markets are forcing both 8 publishers and their vendors to take a broader view 9 of what a digital rights management platform 10 entails." And yet Section 1201, under the guise of 11 12 copyright law, is expected to protect all of those 13 possible models, all of those possible ways of 14 distributing information. I'd like to talk a bit about 15 16 circumvention. Many times I've heard the panel ask 17 presenters whether they have had any experience with 18 circumvention. 19 of them has fired back a question, what is a 20 circumvention? And I've really wished that any one What do you mean? Since the definition of technological 21 22 measure is so broad and all-encompassing that it can 23 even include passwords and library cards -- as we 24 established in our comments -- what does 25 circumvention mean? Does using a password to access NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 44 1 a database, to use it in a way that is not 2 authorized in terms of the license a circumvention? 3 I don't know. 4 it isn't. But I haven't heard anybody tell me That makes it very difficult for a 5 6 librarian to say whether or not she has circumvented 7 or not. 8 federal crime because it is a circumvention to 9 access a database in a library? Will misuse of a library card now become a 10 Linda Crowe's library offers access to 11 an online database system that requires a password 12 and a library card as an identification and entry 13 measure. 14 their library card and password to a visiting 15 relative, who then goes to the library and uses it 16 to download some information for a school project. 17 Has that person now become a federal felon for 18 circumventing 1201? Suppose somebody in that district loans I'm not sure that they haven't. Now, we might say, "Well, they would 19 20 never prosecute such a person," and so on. 21 raises a problem that Bob Kastenmeyer used to worry 22 about all the time, whether we're creating in our 23 copyright law the essence of a prohibition that 24 essentially makes scofflaws and criminals of us all NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com But that 45 1 by winking at minor offenses, and we'll decide what 2 a major offense is. Finally, I'd like to talk a bit about 3 4 the relationship between licensing and controls 5 because that's come up several times. 6 suggest some considerations, because they do wrap 7 together and are very difficult to pull apart. But basically there's no direct 8 9 So let me relationship between the technological issue and 10 licensing. Section 1201 is part of copyright law. 11 Licensing is a contract, a private contract. 12 have no objection to knowledgeable parties, 13 consenting adults, agreeing to anything they want to 14 agree to. 15 object is criminal measures under copyright law 16 being tangled up in that. Librarians do this all the time. So we What we People can license away anything they 17 18 want. That has nothing to do with whether Section 19 1201 and fair use in Section 1201 should be 20 protected and interpreted. 21 And I'd also like to point to Jim Neal's 22 testimony -- and Lolly mentioned this yesterday also 23 and I think Karen Coyle did -- that copyright law 24 does set some boundary in negotiating licenses, sets 25 some basic principles. NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 46 Second, technological measures can 1 2 really restrict negotiation. 3 more and more embedded in the work itself, it 4 becomes non-negotiable. 5 you're blue in the face, but if the technological 6 measure is part of the work itself, there's nothing 7 to negotiate. You can negotiate until Unbalanced enforcement. 8 9 Because as they become If the database provider that Linda Crowe works with decides that 10 that misuse of the password and library card 11 violates the terms of the license, they can jolly 12 well go to court and sue for breach of contract. 13 And if Linda thinks they're being too rigid, she can 14 go to court and sue. Disputes in contract law can be resolved 15 16 in court and are all the time. What Section 1201 17 does, if not equipped with an exemption, is bring 18 the weight of criminal law against one party in that 19 dispute, in addition to breach of contract. 20 an unfair balancing. 21 copyright law with licensing, not a support. That's That's an interference of And, finally, given the trend towards 22 23 UCITA and non-negotiated license, the idea that 24 there's some negotiation that goes on between 25 consumers of information products -- even libraries NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 47 1 and their providers -- I think is growing dim. 2 But that's another fight. In conclusion, much of our testimony has 3 4 sounded alarming and negative, I think, over the 5 last five days. 6 an advocacy proceeding here. 7 libraries have embraced technological change. We're engaged in But, in fact, most We believe that to the information 8 9 Deliberately so. society in this new century, libraries will be even 10 more important, serving the public, supporting 11 health research, care providers, the legal 12 community, underpinning vital research in 13 educational missions of our schools, colleges and 14 universities. 15 We also believe that content providers 16 should be exploring new ways to serve their public 17 and expanding markets for their work. 18 perfectly fine. 19 products. 20 them to do so. 21 not trying to undo the DMCA. That's good. That's We use their And copyright is an important tool for We're not against copyright. We're Of course, libraries are also exploring 22 23 new forms of service models using these new 24 technologies. 25 can't be served, why this can't be a win-win There's no reason why both interests NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 48 1 technological change for society and for the 2 creators and for the publishers. 3 be achieved at the expense of the other. One goal need not Public services provided by libraries 4 5 and educational institutions does not threaten, but 6 if anything, enhances business opportunities. 7 Copyright law extends rights to creators, but in the 8 name of the public interest it also assigns 9 responsibilities to them in the form of limitations 10 and exceptions. They're not new ideas; they date back to 11 12 the earliest days of copyright law. Nor are they 13 trivial. 14 years. 15 economic reasons to sweep them under the table now 16 in the guise of controlling access to protect 17 against piracy. They've served our society well for 200 We see neither technological reasons nor A broad use-based exemption would be a 18 19 strong statement that the public interest continues 20 to be served in the digital age. MS. PETERS: 21 Thank you. Thank you. We'll have our 22 question and answer session begin with Charlotte 23 Douglass. MS. DOUGLASS: 24 25 Thank you. the testimony quite informative. I found all I'd like to get NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com 49 1 into just a little bit the question of reverse 2 engineering. 3 So it's reverse engineering, reverse engineering, 4 reverse engineering. 5 divorce you, I divorce you, I divorce you. I know you said it two times at least. It's supposed to take, like, I But I'm going to raise it one more time. 6 7 And that has to do with -- suppose there is an 8 adverse effect? 9 1201(a)(1) is supposed to address adverse effects. It seems to me that Section 10 So that if the Librarian did find an adverse effect 11 as to which non-inf