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Read them and weep

Under the guise of protecting copyrights, measures threaten readers

By Simson L. Garfinkel, 05/07/98

wo bills that are up for a vote in the House of Representatives could seriously jeopardize the right of Americans to read in the next century.

The backers of these bills say they are necessary to protect the interests of creative individuals and publishers in the digital age. But the legislation goes further by allowing publishers to repeal the ''fair use'' provisions of today's copyright law and by creating a whole new category of intellectual property.

The first bill, backed by the Clinton administration, is the WIPO copyright treaties implementation measure. It implements sections of the World Intellectual Property Organization treaty adopted in December 1996. The bill would create a new kind of crime in US law, the crime of ''circumvention.'' It's a kind of crime that one would expect in George Orwell's ''1984,'' rather than in the America of the next century.

The bill is being supported by big publishing interests, including Time Warner, Viacom, the Motion Picture Association of America, and Microsoft.

These organizations are terrified by the way computers and digital networks make it easy to copy books, songs, videos, and computer programs. For years they have tried to stop illegal copying with copy-protection systems. The bill would make it a crime to subvert these systems for any purpose whatsoever.

The problem with this legislation, says Adam Eisgrau, legislative counsel of the American Library Association's Washington, D.C., office, is that many publishers are likely to use copy-protection systems to restrict activities that are otherwise lawful.

For example, many Internet Web sites ask you to register your name and e-mail address before you can view the information they contain. A substantial number of people bristle at this notion, and they have figured out ways to circumvent the registration process. Under the legislation, these people could be sued and fined from $200 to $2,500 in statutory damages for each Web page they viewed.

It's not just consumer groups that are upset about the legislation. As it currently exists, the bill would make it a felony for engineers to open competing products and see how they work - ''something that is essential for achieving interoperability in the industry,'' says Lowell Sachs, the government affairs representative of Sun Microsystems. ''So far, the House has failed to focus upon the very real threat that its actions could pose to competition and innovation in the United States.''

The criminal provisions of the bill apply even if the offender is legally entitled to the information that is under copyright management control.

For example, the Supreme Court has ruled that individuals have a right to record movies off the air and view them at a later time. Nevertheless, the film industry doesn't want us to make our own tapes - they want us to buy prerecorded tapes. In the future, the film industry might create a new copyright protection system that prevents home taping off the Internet unless a person pays an additional fee. Under the proposed legislation, a person who got around this new protection system and made their own home copy would nevertheless be guilty of circumvention and potentially subject to a fine of $500,000 and five years imprisonment for the first offense.

The bill's authors ''are very clever,'' says Eisgrau. ''They don't repeal the legal basis of fair use,'' which would create a huge political outcry. Instead, the legislation ''creates a new law which makes fair use impossible to exercise, unless the appropriate price is paid.''

And that's not fair use at all.

The second measure that should give lawmakers pause is the collections of information antipiracy bill. This proposal, if passed, would give legal protection to the contents of databases over and above what is provided by current copyright law.

The database law finds its genesis in a 1991 Supreme Court decision, Feist Publications Inc. vs. Rural Telephone Service Co., in which the court ruled that the factual information in a telephone white pages - a large database of names, addresses, and phone numbers - cannot be copyrighted. This decision is one of the key factors responsible for the proliferation of ''white pages'' services on the Internet such as Switchboard.COM.

The bill would basically overturn the Feist decision, making it a crime to extract data from a ''collection of information'' and use it in a way that harms the real or potential economic interest of the collection's owner. One of the fundamental problems with this bill, says the Electronic Frontier Foundation, is that there's no limit to the kind of information that can receive protection once it is put into a database.

In particular, government information and information that's already in the public domain could be dropped into a computerized database and then receive new, copyright-like protections. And the act doesn't have any exemptions for ''fair use.''

So how could all this affect our right to read? Ask Richard Stallman, founder of the Free Software Foundation. In his story ''The Right to Read,'' he argues convincingly that new restrictions on information will ultimately force people to pay for every book and article they read, whether at home, at work, or at school.

Stallman's story is a science fiction parable in which one college student risks imprisonment by lending his computer to his girlfriend and telling her his password - in effect, giving her access to books that he has licensed for himself. You can find the entire story at http://www.gnu.org/philosophy/right-to-read.html.

Indeed, if you want tofind out more about these issues, there's no better place to turn than the Web. A group opposed to the legislation called the Digital Future Coalition has put together a Web site at www.dfc.org explaining the problems.

Meanwhile, several publishers have banded together and created their own competing group, the Creative Incentive Coalition. You can find its Web site at www.cic.org. Finally, you can download the full text of these bills from the Library of Congress's Thomas system at thomas.loc.gov.

But hurry, while you still have a right to read.

This story ran on page C04 of the Boston Globe on 05/07/98.
© Copyright 1998 Globe Newspaper Company.

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