Statement of

JOHN BETTIS, Songwriter

on behalf of the AMERICAN SOCIETY OF
COMPOSERS, AUTHORS AND PUBLISHERS

Concerning H.R. 2180
"On-Line Copyright Liability Limitation Act"
and in Support of H.R. 2281, the
"WIPO Copyright Treaties Implementation Act"

Before the House Subcommittee on Courts
and Intellectual Property

September 16, 1997

_____

Mr. Chairman, my name is John Bettis. I am a songwriter, and a member of ASCAP's Board of Directors. I am attaching a brief biography which will give you a sense of my background and my work. It is a very great pleasure to appear before you today on behalf of ASCAP's 70,000 writer and publisher members.

We greatly appreciate your efforts to find a resolution to the issue of on-line service provider liability. However, I must express our deep concerns about H.R. 2180. Many of the provisions of that bill must be corrected to protect the rights of authors and copyright owners.

I also wish to express our strong support for H.R. 2281, and endorse United States ratification of the WIPO treaties. Let me spend the bulk of my time expressing our concerns about H.R. 2180.

Mr. Chairman, as you know, ASCAP licenses, on my behalf and that of my colleagues, the right of nondramatic public performance in our music. ASCAP does so through the mechanism of a nonexclusive, reasonably-priced blanket license, and so furnishes a valuable service to music users. Through that license, users are able to perform the millions of works in the ASCAP repertory as they wish, with complete flexibility and a bare minimum of administrative concerns.

Mr. Chairman, these days it seems that those who create are now termed, in not-so-beautiful words, "content providers." Although I prefer to be called a songwriter, the term underscores the fact that dissemination of content is the whole reason for the National Information Infrastructure's (NII's) existence. Without content -- without the works that I and my fellow authors create -- the NII is an empty shell of no use to anyone. One of the most important types of that content is music. And unless our rights in our creations are protected, the flow of "content" will simply dry up.

H.R. 2180 raises a number of problems which will seriously impair the ability of copyright owners to secure their rights for on-line uses of their works. These problems are of two types: First (and, perhaps, most importantly), a structural approach which turns copyright on its head, in that it grants an exemption and then, as a practical matter, puts the burden on the copyright owner to justify the inapplicability of the exemption to any particular user, rather than vice versa; and second, a number of details which will make it impossible, as a practical matter, for a copyright owner to enforce rights against almost any unauthorized user, no matter how egregious that user's conduct.

As a structural and conceptual matter, the notion which copyright owners and on-line service providers ("OSPs") had discussed in last year's "Goodlatte Group" negotiations, and on which there seemed be agreement in principle, but no agreement on virtually any details, was this: There would be an exemption for any liability for "mere conduit" services -- i.e., those that merely allowed access to the Internet without anything more. (Indeed, this principle was embodied in the Agreed Statement adopted in conjunction with the WIPO Copyright Treaty: that the "mere furnishing of physical facilities" did not constitute an infringement of the copyright owner's right.) As to the other types of services, they would be exempt from liability in certain circumstances if they followed a strict regime of "notice and takedown" -- i.e., if they knew or were informed of an infringement, they would immediately remove the offensive site from their service and preclude access to it. Although the OSPs seemed to give lip service to agreement on these principles, it became clear when details were discussed that their notion of these principles and the copyright owners' notion of these principles were very different indeed.

But H.R. 2180 would grant a broader exemption than any that the copyright owners had discussed. It would exempt OSPs from any liability from direct or vicarious infringement (for which there is, in current law, no requirement of knowledge of infringement on the part of the infringer), if the OSP meets six criteria. Unfortunately, the burden would be, as a practical matter, on the copyright owner to prove that the OSP does not meet these criteria, rather than on the OSP to prove that it does meet them. The result would be far more than a mere conduit exemption.

Application of the six criteria also would make it extremely difficult, as a practical matter, for a copyright owner whose work was infringed to obtain redress. For example, as previously noted, the doctrines of direct infringement and vicarious liability have never required a showing of knowledge of infringement on the infringer's part (in much the same way that there does not have to have knowledge that you are trespassing on someone's property to be liable for trespass). Yet the exemption provided would be available if the putative infringer "does not know, and is not aware by notice or other information indicating, that the material is infringing." By including the second clause (requiring awareness), the bill would impose a higher standard than even simple knowledge. How would the copyright owner prove that the OSP "was not aware" that the material was infringing?

Another of the criteria for exemption requires that the OSP "does not generate, select, or alter the content of the material." The "passing on" of infringing material would therefore be exempt -- yet this is a common form of infringement, and must be prevented.

Another of the criteria grants the exemption if the OSP "does not sponsor, endorse, or advertise the material." What of the OSP which highlights the infringing website? That is presumably not "sponsorship" of the material -- is it "endorsement" or "advertising"? And what of a situation where the infringing material is contained within a larger body of material? The vagueness of the criterion is an invitation to mischief.

Beyond all this, the bill goes on to deal with situations of contributory infringement. Under the doctrine of contributory infringement, the infringer is liable if he knew the act was infringing and derived a benefit from it. But, in cases which meet the six criteria and in which liability would be imposed for contributory infringement, the infringer would only be liable for injunctive relief, and not for any monetary damages. Thus, there would be no inducement for the infringing OSP to monitor the infringement, for its only liability would be for an injunction, after the fact. On top of all this, the injunction would only be available if it was "technically feasible and economically reasonable to carry out." That standard, too, is so vague as to be essentially meaningless. (For example, if an OSP is losing money, and it would cost $1000 to "take down" the infringing website, could the OSP argue that every penny it has to spend is a burden and therefore the $1000 expenditure is not economically reasonable?)

I want to stress that injunctive relief and monetary damages are essential remedies for copyright infringement. In some cases -- for example, in the case of unauthorized duplication of copies or phonorecords -- the copyright owner may be most concerned with getting infringing material off the Internet to save the market. But in other cases -- for example, the transmission of copies of a valuable piece of computer software -- the damage might have been done as soon as the transmission occurred, and in ruinous financial terms; in those cases, the ability to collect damages may be most important. And for some uses -- such as the public performance of copyrighted music -- both matters are of concern. There is no one type of damage caused by piracy and no one remedy for it. That is why the copyright law contains both injunctive and monetary relief for the copyright owner in the case of infringement, and why that panoply of remedies must continue to apply in cyberspace.

In sum, the exemption that would be granted by H.R. 2180 is far broader than any that copyright owners were discussing in last year's negotiations. Copyright owners already bear a heavy burden for enforcement of their copyrights. If someone steals my car, I can call the police and they will assist me -- indeed, they will do virtually all the work -- in recovering it and catching the criminals. But there is no police force to assist me and the other creators of America's music when our songs are stolen. Yet these songs are as much our property as our automobiles. Our law places the burden on the copyright owner to police theft of his works. That is why the law has developed the theories of liability for direct, contributory and vicarious infringement which exist. The tests for those types of liability are fair and well-developed. And the fact is that online services are benefitting financially from the content they are carrying. Indeed, they would not even exist but for content. If they are liable under current law, they should not be allowed to evade that liability. Therefore, any notion that there must be some further "balancing" of responsibilities for preventing this type of theft is simply double talk, and should be recognized as an attempt to evade proper responsibility for infringing acts.

In sum, Mr. Chairman, while H.R. 2180 is an important initiative to resolve this conflict, it raises serious problems which need to be corrected. Please rest assured, however, that we stand ready to work with you on meaningful legislation which will protect the rights of authors in cyberspace.

Finally, Mr. Chairman, I do wish to state our strong support for H.R. 2281, a bill to make those few changes necessary to our copyright law which will allow the United States to adhere to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. These treaties, negotiated last December in Geneva, reflect a wise and much-needed updating of international copyright law which will protect copyright in the digital electronic environment. We especially wish to commend you, Mr. Chairman, for proposing this legislation, as well as the Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, Bruce Lehman, for his leadership of our nation's delegation in Geneva, and our Register of Copyrights, Marybeth Peters, for her key role in helping formulate our copyright policy at the diplomatic conference. H.R. 2281 should be speedily enacted, and the treaties should be ratified by the United States with equal speed.