Judiciary
HomepageI am pleased to testify on behalf of the Institute of Electrical and Electronics Engineers-United States Activities (IEEE-USA). The IEEE United States Activities Board promotes the career and technology policy interests of the 230,000 electrical, electronics and computer engineers who are U.S. members of IEEE.
IEEE-USA appreciates the opportunity to present its views on the National Information Infrastructure Copyright Protection Act of 1995 (H.R. 2441). We hope to contribute a unique perspective to the discussion of copyright and the National Information Infrastructure (Nil), since the IEEE-USA Intellectual Property Committee, who prepared this testimony, is made up of practicing engineers, entrepreneurs and intellectual property attorneys who are U.S. IEEE members with expertise in the field. Additionally, it should be noted that the IEEE Is also one of the world's largest technical publishers and has a great interest in seeking enactment of appropriate laws With respect to intellectual property and the NIL For the last three years the IEEE has begun to publish scores of valuable technical information on CD-ROM and over the Internet. In the last year, IEEE's World Wide Web Home Page has greatly expanded. Technology has enabled IEEE to publish magazines, technical journals, and conference proceedings electronically. These publications all have valuable information contained within them. There is no question that we believe that strong intellectual property laws are essential to the future success of the NIL
Likewise, one of IEEE-USA's goals is to assure that the expression of our members' ideas continues to be protected-- whether it is in written or electronic form. Our members are inventors, software developers and disseminators of valuable technical information. They deserve to receive the best possible intellectual property protection in order to maintain their own economic stability. We therefore applaud Congress for recognizing that present laws may not be appropriate for protecting one's intellectual property, in light of the many changes in technology.
Fast Moving Technology
However, we believe that Congress should move very cautiously before implementing such legislation as H.R..2441. It is not enough to merely recognize that new laws may be needed to be applicable to present day technology. We believe that this legislation, like the Nil White Paper on Intellectual Property, may not have taken into account technologies that either have not yet been invented or technologies that have been invented but have not been introduced into the marketplace. We caution Congress to avoid enacting legislation that may not be applicable to emerging or fast-moving technology.
The Nil as we know it today consists of the Internet which facilitates electronic mail, world wide web, telnet and other functions. These functions allow access to computers throughout the world. The technology associated with world wide web is relatively new but in the last year has greatly improved. The use of audio and video are now available over the Internet and are moving in the direction of video conferencing with full interaction including on-line document review through the Internet.
These are all very exciting technologies that will change the way education, entertainment and business is conducted. Although we can see the direction that the Internet is headed, we must recognize that the Internet is only one part of what the Nil will be. That is why IEEE-USA believes that we must move slowly and analyze the language used in this or any future legislation to minimize the adverse effect that severe restrictions could cause. The IEEE-USA urges Congress not to pass legislation that will stifle technology or inhibit the general usefulness and flexibility of the NIL
The Use of the Word "Transmission" In Section 2
There is no question that H.R. 2441 is much more narrowly focused than the Nil White Paper on Intellectual Property. However, IEEE-USA believes that there may be some serious problems caused by the four occurrences of the words "transmission" and "transmit" in Section 2 of the bill.
While one might argue that these are minor changes that reflect an electronic publication rather than publication of hard copy, we believe that the use of the word "transmission" and its ramifications should be looked at more seriously. Specifically, Section 2(b)(2) of H.R. 2441, would change the way in which users of the Internet have been conducting business for a number of years.
Let us take for example the known technology of electronic mail. When a sender transmits his/her message, it is implied within this legislation and explicit in the enacting legislation for the Berne Convention that the sender has copyrights to his/her message. Does this mean that if the recipient of an email message responds to the sender with the senders original message still attached, by using the automatic reply icon (that so many of today's email software applications have), that the recipient will be in violation of copyright law as proposed by this bill? Electronic mail also offers another almost automatic function known as "forwarding." If the sender sends a message to a recipient and the recipient then forwards that message on to several other people, the original recipient will also be in violation of copyright law as proposed by this bill.
An even more difficult situation arises when we view a world wide web page. When the user of world wide web enters a URL or world wide web address onto his/her web browser (application software that enables the user to view a web site), the graphical representation of information is transmitted into the user's computer and for that moment a copy has been made and is fixed in the user's computer. Most web browser software stores or "fixes" a copy of that web site into what is known as a "cache" file that resides on the hard drive of the users computer. The purpose of this of course is not to necessarily make a copy of the web site but to make it easier and faster to return to the same web site at a later date. If this particular bill were enacted into law, even casual users of world wide web would clearly be in violation of the law. The mere use of the word "transmission" without qualification may create new difficulties for the users and consumers of what is now the Nil.
Another example of how the use of the words, "transmission" and "transmit" may impede one's use of the Nil, is found in distance learning. As a result of the advancement of technology and the NII, individuals and companies seeking to improve their skills and knowledge base are increasingly learning from a distance. This fairly new form of education is conducted over the Internet. Courses can literally be taught over the Internet. Even interactive seminars are held. The information is distributed over the Intemet and is received by students or learning institutions linked to the Internet. Under this bill the mere fact that the information was "transmitted," would make these students liable for copyright infringement. As in libraries and in schools, there should be an exemption of fair use for the act of learning at a distance.
Presently, it is not copyright infringement to go to a library and browse through books (hard copy). However, under this bill it would be infringement to browse through information on the world wide web. The act of browsing on the world wide web will by definition be a "transmission." If browsing for information becomes a copyright infringement, this will greatly diminish this country's research abilities.
Within five to ten years, the Nil may be even more dramatically impacted by such legislation. How will parties have interactive communication if one of the participants wants to show a rightfully possessed copyrighted document to another participant at a remote location using the Nil? The mere acts of scanning the document, so that it can be transmitted, and then transmitting the document would be an infringement of copyright under this bill.
We offer these illustrations to emphasize that Congress should be implementing laws that will protect individual's intellectual property rather than stifling innovation and hampering the use of the Nil or innovation. IEEE-USA feels that one possible remedy to this concern is to limit the word "transmit." We have attempted to do this in our attached amendments to the language of the bill.
Section 1201. Circumvention of Copyright Protection Systems
As one of the world's largest publishers of technical materials we realize that without a copyright protection system in place we could conceivably stand to loose a 6 great deal of IEEE's intellectual property revenue. The technology that is presently available allows users to reproduce material with great speed and accuracy. Without a copyright protection system in place, hundreds even thousands of copies of IEEE's intellectual property could be reproduced and disseminated for free throughout the world.
However, I EEE-USA believes that Section 1201 will have a deleterious affect on the advancement of technology and is too broad in its provision of the necessary intellectual property protection for IEEE and others. Section 1201 will impede "legal" copying or legal forms of reverse engineering of computer programs as defined by the 9th Circuit Court of Appeals in Sega v. Accolade. Copying a computer program for the purpose of interoperability was defined by the 9th Circuit, as well as two other U.S. circuit courts, as legal fair use as long as the copying does not result in a competing product. Frequently engineers must reverse engineer software or hardware to understand how it works so that they can write a different piece of software that will operate on that particular system.
If the language in Section 1201 is enacted in its current form, it could have a devastating impact on the advancement of Nil technology. For the Nil to work effectively all software and hardware will eventually have to be able to talk to the other. If this is to occur the software and hardware systems must be compatible and interoperable. We urge Congress to revisit this issues.
I EEE-USA also wishes to point out that under Section 1201, an organization could conceivably take government data, that was once available to the public, and republish the information. Once it was published this organization would hold the copyright to this information, as a compilation, and lock up this data using a copyright protection system. If the original data was not easily accessible, the general public would be deprived of this information that was once available to them. Under Section 1201, this copyright protection system could not be circumvented, thereby making government data, paid for by the U.S. taxpayer, inaccessible to the public even under the Freedom of Information Act (FOIA).
Further, the bill tends to inhibit research and testing in this area by private entrepreneurs. Encryption is becoming a big business and testing one's decryption resistance becomes very important as the technology improves and the speed of these devices and computers increase. This bill would discourage such testing by the market place of third parties. We would loose our leadership role in encryption technology if decryption devices are considered to be an infringement of copyright. There are commercial businesses working with quasi-standard encryption methods and new a unbreakable" ones are being developed. The only way to test the strength of encryption technology is to attempt to decrypt the encryption through decryption devices prohibited by this bill.
Legislation should not impede the advancement of technology. Unfortunately, the current form of this bill does just that. Thus we have included changes to redirect the burden of proof to individuals who are unauthorized and intentionally seek access to copyrighted material that is not primarily government data.
Although Section 1203 (c)(3)(13)(5) allows for "innocent violations," we believe by the time the judicial phase is reached, it is going to be very difficult for an individual or corporation to explain why their actions in circumventing a copyright protection system was an "innocent violation." Further the innocent individuals or corporations would be enmeshed in law suits with the burden on them to prove their innocence. Innocent decoding should be excused, especially if material that is generally regarded by others as unprotectable by copyright, is found to be protected by both copyright and a copyright protection system.
Section 1202 and Third Party Internet Providers
While we are aware that there is pending legislation that would exempt third party Internet providers from liability in computer crime, we think it would be appropriate to include language in H.R. 2441 that would expressly exempt third party Internet providers from liability if copyright infringement were committed while using their Internet service. If we do not protect those third party providers, who may be accused of computer and copyright violations or distribution of altered copyright management information, we are going to stifle the NII's ability to progress. Thus we have suggested amendments to Section 1202 to exclude such third parties.
Conclusion
IEEE-USA believes that intellectual property protection for the Nil must be addressed. We agree that it is time that intellectual property laws change to attempt to keep up with the pace of fast-moving technology. However, as we have pointed out earlier, we must advise Congress that there are technologies that have not yet entered the marketplace as well as technologies that are several years from full development. Technology is changing with increasing speed in this new but very viable field. Therefore, before Congress enacts any broad changes in copyright law, it should look at all of the technological ramifications for present and future technology that we can predict, to minimize the enactment of overly protective laws.
We have illustrated some of the negative impacts that this legislation, in its current form, may have on some of the technologies already being used and that can be foreseen. IEEE- USA is prepared to work with Congress in the future to develop language that will provide strong intellectual property rights for the United States and our members while not stifling the technological innovations for the Nil. In an effort to assist Congress, we have included, with our testimony, a list of recommended amendments to H.R. 2441 We believe that these modifications will help to ameliorate some of the concerns that we have posed.
We also encourage Congress to take into account that the Nil, as we know it today, is also a learning tool as we pointed out in our illustration on distance learning.
Students and instructors must be able to have the freedom to transmit educational materials over the Internet, otherwise we will be wasting the valuable resources of the Nil.
We also believe that it is essential to the future of the Nil to exempt third party Internet providers from being penalized for the nefarious acts of subscribers. We do not hold the cellular telephone services responsible for computer break-ins--nor should we hold Internet providers liable for other illegal activities that they did not commit. Therefore, IEEE-USA encourages Congress to add language to H.R. 2441 that will exempt third party providers from being held liable for copyright infringement committed by one of their subscribers.
Once again we thank you for allowing IEEE-USA to share its perspective on the Nil and intellectual property. These are exciting technological times. Our members are some of the individuals who have developed this technology that we are discussing here today. We do not want to lose the momentum that we have in utilizing technology to move into the future. We ask that a law be enacted that will protect all of us but not stifle innovation and the future of the NI I.
We look forward to working with Congress on these matters in the years to come. At this time I would be happy to answer any questions that you may have.