ARCHIVED: Comprehensive Implementation of the December 1996 WIPO Copyright And Phonograms Treaties

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TESTIMONY REGARDING COMPREHENSIVE
IMPLEMENTATION OF THE DECEMBER 1996 WIPO
COPYRIGHT AND PHONOGRAMS TREATIES

UNITED STATES HOUSE OF REPRESENTATIVES
JUDICIARY COMMITTEE
SUBCOMMITTEE ON COURTS AND INTELLECTUAL PROPERTY

PRESENTED BY DOUGLAS BENNETT
PRESIDENT, EARLHAM COLLEGE
RICHMOND, INDIANA

SEPTEMBER 17, 1997

Mr. Chairman, Representative Frank, and Members of the Subcommittee. I am honored to appear before the Subcommittee on behalf of the undersigned members of the Digital Future Coalition to share with you our large and diverse group's views on preserving balance in copyright law for the digital age. The Digital Future Coalition is comprised of 38 of the nation's leading non-profit educational, scholarly, library, and consumer groups, together with major commercial trade associations representing leaders in the consumer electronics, telecommunications, computer and network access industries. I am also especially pleased to be here today, Mr. Chairman, having served as an advisory member of the United States' delegation to the WIPO treaty conference last December.

I. CONGRESS SHOULD ACT ON COMPREHENSIVE AND BALANCED DIGITAL COPYRIGHT LEGISLATION BEFORE RATIFYING THE WIPO TREATIES.

The Digital Future Coalition (DFC) welcomes President Clinton's submission of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty for ratification. That action presents an important opportunity for the House -- through the careful crafting of comprehensive legislation concerning copyright in the digital future -- to ensure the continuation of balance in copyright law and policy as the nation moves into the next millennium.

Since its inception, the DFC has urged policy makers domestically and interna- tionally to recognize the importance of both information creators and users in the public and private sectors to the successful development of the emerging digital, networked environment. Our coalition was extremely pleased, therefore, that the WIPO treaties adopted after intense debate and many modifications expressly recognize and endorse the principle of balancing the interests of copyright owners and information consumers. Domestic law should do the same.

Regrettably, however, the legislation proposed by the Administration to implement the WIPO treaties -- introduced at the President's request in late July -- is seriously defective. For the reasons detailed below, H.R. 2281 is both more and less than the WIPO proceedings and sound public policy require it to be. What the bill contains is gravely flawed and what it omits is critical to industry and society as a whole. As Congress undertakes the first major revision of the Copyright Act since 1976, many issues that should be resolved to assure continued balance in U.S. intellectual property law -- issues such as fair use, first sale, library preservation, distance education, service provider liability, and the enforceability of non-negotiated license terms -- are simply not addressed by the proposed implementing legislation at all.

Thus, while the DFC supports the WIPO treaties, we strongly oppose H.R. 2281 in its current form as inimical to maintaining balance in copyright law and policy as it is updated for the digital age. Moreover, the DFC believes that the nature and scope of such implementing legislation must be fully understood before these treaties are ratified. Upon introduction, this legislation apparently was presented to you and others, Mr. Chairman, as an agreement among stakeholders. As articulated in a letter of August 4 jointly signed by the DFC and five other major organizations, the DFC wishes to make absolutely clear that it is not. Indeed, in the Coalition's view, the proposed implementing legislation would upset the balance that has characterized U.S. copyright law throughout its history.

Unlike the flawed bills introduced at the Administration's request, legislation recently offered in the Senate by Senator John Ashcroft of Missouri (S. 1146) would ensure that the copyright-related interests of educators, librarians, high-technology businesses, and other information consumers -- indeed, all parts of the private and public sectors -- are balanced with the protections properly afforded to copyright owners and proprietors. The DFC urges Members of this Chamber to consider similar legislation for the reasons set forth in this testimony.

I have noted, Mr. Chairman, that the DFC is deeply concerned both with what the Administration's legislation contains and what it omits. I would like to take a few moments to address each of those points in turn.

II. THE ADMINISTRATION'S PROPOSALS ARE ANTI-CONSUMER, ANTI-TECHNOLOGY, ANTI-COMPETITIVE AND THREATEN PERSONAL PRIVACY.

The Digital Future Coalition wishes to underscore here three principal concerns regarding the proposals made by the Administration to date:

First, not only do proposed new Sections 1201 through 1204 of the Copyright Act threaten to upset the existing balance of our copyright system, but they go beyond anything that is required to bring U.S. law into conformity with the WIPO treaties. With respect to the issue of anti-circumvention, there is some question as to whether any implementing legislation is required. Moreover, to the extent that any such provision is necessary, the mandate of the treaties could be satisfied by non-criminal provisions which penalize circumvention of technological safeguards in connection with copyright infringement, rather than ones which attempt to regulate the evolution of new electronic technologies.

Second, with regard to Section 1201, this sweeping new proposed provision of the Copyright Act attempts to ban all devices that could be used to circumvent technological measures designed to restrict access or prevent unauthorized reproduction of copyrighted works. This provision threatens to stifle innovation. Furthermore, the privileges users and consumers now enjoy under copyright law, such as fair use, could effectively be negated by this needlessly overbroad provision.

Third, Section 1202 threatens with liability even individuals who, without any intention to infringe or promote infringement, incidentally alter copyright management information designed to identify copyrighted works. Taken together, Sections 1201 and 1202 -- and the egregious penalties proposed in Sections 1203 and 1204 -- create significant risks to the privacy of individual users of digital information networks.

While a detailed analysis of proposed new Section 1201 of the Copyright Act is appended to this testimony, Mr. Chairman, permit me to elaborate briefly on the DFC's concerns with the approach and language of the Administration's proposals in H.R. 2281 over all.

Section 1201 -- Stifling Innovation and Punishing Consumers

Last year, the Clinton Administration proposed so-called "black box" legislation that could have had serious consequences for the design of future general purpose computers, digital VCRs and other recording products. The DFC helped demonstrate to the 104th Con- gress that this approach was overly broad and needlessly anti-innovation and anti- consumer. Congress rejected the proposal. In December 1996, over 120 nations attending the World Intel- lectual Property Organization (WIPO) diplomatic conference in Geneva rejected the same proposal. Instead, the WIPO nations adopted a provision that merely requires countries to provide "adequate legal protection . . . against the circumvention of effective technological measures."

With the introduction of its proposed treaty implementation legislation, the Administration has again taken a broader approach that will punish consumers, educators, librarians, researchers, and others by unreasonably impairing the availability and capability of multi-purpose devices. This approach will have far-reaching negative ramifications for the future development and exploitation of digital information networks like the Internet. Specifically, the Administration's proposed implementing legislation would:

  • damage education and research by allowing copyright owners to "lock up" public domain materials, and thwart the fair use privileges of information consumers;

  • threaten the security of computer networks by impeding encryption research;

  • prevent legitimate "reverse engineering" in the development of new software (effectively overturning a series of judicial decisions recognizing reverse engineering as a legitimate fair use);

  • outlaw, or force the redesign of, legitimate devices with substantial non-infringing uses (effectively overruling the Supreme Court's Betamax decision, which spawned the VCR revolution for the benefit of all American consumers and the entertainment industry);

  • require judges to second-guess manufacturers' decisions about the best design for new generations of consumer electronic equipment and computers;

  • frustrate efforts to provide parents with the capability to monitor and
    control children's on-line activities; and

  • threaten the personal privacy rights of electronic consumers by preventing them from disabling mechanisms designed to track their on-line activities in the same way that some consumers now lawfully may -- and frequently do -- neutralize telephone "caller id" technology.

Of particular concern to DFC, violations of Section 1201 are not tied to infringement of any intellectual property right held by a copyright owner. As a result, liability is imposed even when the purpose of the activity is permitted by the Copyright Act today -- as in cases of fair use or access to unprotected material. Such a provision is unprecedented in copyright law. It cannot be overemphasized that H.R. 2281 criminalizes activities that are not necessarily related in any way to copyright infringement. Were the proponents of H.R. 2281 interested merely in combating piracy, Mr. Chairman, they should have no objection to making infringement an element of the offenses proposed in Section 1201, yet they have opposed such a statutory formulation.

Furthermore, the WIPO treaties do not require such an extreme response. In fact, this approach is inconsistent with the preambles of the WIPO treaties, which call for the recognition of the need to maintain balance between the rights of copyright owners and "the larger public interest."

Finally, the "so-called" savings clause in Section 1201(d) does nothing to preserve this balance. While Section 1201 will not as a formal matter restrict existing limitations and exceptions to copyright, it will as a practical matter preclude the exercise of these limitations and exceptions by preventing the manufacture and use of the technologies necessary for Them to be meaningful. Nor would the savings clause protect individuals who gain "access" to works in violation of 1201(a)(1), even if they do so for entirely lawful purposes.

Section 1202 -- Draconian Fines for Benign Conduct and a Threat to Personal Privacy

The WIPO treaties do require enactment of domestic legislation to safeguard the integrity of so- called "copyright management information" -- digitally encoded data about the title, authorship, and ownership of works. Once again, however, the proposed implementing legislation goes too far. Section 1202 includes, in addition to criminal penalties protecting CMI, civil penalties applicable even in cases where no specific intent to infringe or promote infringement can be shown. In other words, even someone who alters digital identifiers casually could be liable for a minimum of $2,500 in damages plus costs and attorney's fees. Neither the letter nor the spirit of the WIPO treaties require member nations to enact such a sweeping provision.

Section 1202 also authorizes the Register of Copyrights to expand the definition of copyright management information ("CMI") in the future. In doing so, the Register "may not require the provision of any information concerning the user of a copyrighted work." While a step in the right direction of protecting personal privacy, this language is not adequate to address genuine concerns about how personal information might be collected and used on the Internet. The DFC recommends that this provision be amended to make explicit that the term "copyright management information" does not include information that could be used (or misused) to identify the user of a work, interfere with the public's present rights to receive information anonymously, or otherwise infringe on personal privacy.

Sections 1203 and 1204 -- Egregious Remedy Provisions

The proposed Act establishes civil and criminal penalties for violations of Sections 1201 and 1202. Most objectionable, Section 1204 imposes criminal penalties of up to $500,000 and 5 years of imprisonment for a single, willful violation of Section 1201 or 1202 for commercial advantage or personal financial gain. A person could be subjected to these severe criminal penalties simply for exercising fair use rights, if a court deems the person acted for personal financial gain.

III. PROPOSALS TO UPDATE THE COPYRIGHT ACT WHICH ARE CRITICAL TO COMMERCIAL INNOVATORS, EDUCATORS, LIBRARIANS, ARCHIVISTS AND THE PUBLIC ARE MISSING FROM THE ADMINISTRATION'S LEGISLATION.

Just as the proposed implementing legislation would do too much, it also would do too little. Since the release of the Administration's White Paper on Intellectual Property and the National Information Infrastructure in 1995, a number of issues not addressed in the Administration's recent legislation have emerged during the domestic discussion of how to balance the rights of copyrights owners with the right to access in copyright law and policy. The Digital Future Coalition believes that all such issues should be resolved in connection with Congress' consideration of the WIPO treaties and appropriate implementing legislation if balanced copyright policy for the digital future is to be achieved.

Currently, a good start has been made in resolving the issue of on-line service provider liability with the introduction of Representative Coble's bill, H.R. 2180 the "On-Line Copyright Liability Limitation Act" - and Senator Ashcroft's more comprehensive bill, S. 1146. DFC members believe that any so-called "OSP liability" legislation ultimately adopted must take fully into account the concerns of both commercial and non-commercial access providers, and we look forward to working with Chairman Coble, Mr. Frank and other members of the Subcommittee and their staffs -- as well as with the members of all other affected industries and professions -- to achieve that result in the House of Representatives.

In addition to liability considerations, there are five other issues which the Digital Future Coalition believes can and should be resolved in this debate in a manner fully consistent with the WIPO treaties:

1. Fair Use -- The Copyright Act, consistent with unanimous action by the WIPO delegates, should make clear that this traditional exception to the rights of copyright owners is fully applicable in the digital information age.

2. First Sale -- If we are to realize the full potential of digital information networks, American law should be updated to permit a lawfully acquired copy of a copyrighted work to be given away (or otherwise transferred) on-line, provided that the original is not retained. That is how the law now treats tangible copies of copyrighted works. A digital equivalent to this important doctrine should be created to ensure the realization of the potential of digital information networks.

3. Library Preservation -- The current Copyright Act's outdated and technology-specific provision upon which libraries and archives rely to preserve critical genealogical, scholarly and other cultural materials must be updated to make clear that preservationists may lawfully use state-of-the-art technology and protection procedures to continue the same sorts of archival activities which they have relied on in the print environment.

4. Distance Education -- Just as it did over 20 years ago when the copyright act was last modernized comprehensively in the face of changing technology, Congress should enable educators to use computers in distance education as robustly as teachers were authorized to employ conventional and closed circuit television two decades ago.

5. Non-Negotiated Licenses -- Technology has never before permitted the mass marketing of products subject to "take-it-or-leave-it" licenses printed on package labels or displayed on-line. Limits should be placed on use of such license terms (including so-called "shrink-wrap" and "click-on" licenses) to assure that teachers, students, and other users are not forced to give up their use privileges as a condition of access to works in digital and non-digital formats.

Fair Use: Balancing Copyright Law for a Digital Age and Beyond

It is critical that the copyright law strike an appropriate balance between protecting the rights of copyright owners and otherwise promoting "Progress in Science and the useful Arts." In the scheme of American copyright, fair use safeguards our collective interest in the flow of information -- which is, in turn, a source of economically valuable knowledge.

Fair use, in addition to reflecting in copyright law First Amendment-based principles of free speech, provides the basis for many of our most important day-to-day activities in scholarship and education. It is no less vital to American industries, which lead the world in technological innovation. Moreover, it is also of tremendous value to the Judiciary in dealing with the challenge of precisely such innovation, and repeatedly has been recognized by the Supreme Court as essential to the work of writers and others who creatively transmogrify the earlier works of others in the alchemy that we call "Art."

The maintenance of a robust Fair Use Doctrine in the new legal environment of cyberspace thus remains a high priority of the Digital Future Coalition and, we respectfully submit, should rank among Congress' highest priorities, as well.

The Digital Future Coalition believes that a change is necessary and appropriate in the Fair Use portion of the Copyright Act in order to assure that the scope of fair use parallels the scope of the rights to which it relates. Including such language in pending legislation also will reaffirm Congress' commitment to the vibrancy of the Fair Use Doctrine in the digital future.

To those ends, the DFC proposes that Congress amend Section 107 of the Copyright Act to make clear that fair use applies to all copyrighted works, regardless of the manner in which they are lawfully distributed or used.

Digital Preservation: Protecting our Heritage

The transformation of the information environment gives rise to both challenges and opportunities for many important social institutions, including libraries. A "digital update" to Section 108 of the Copyright Act is required if the needs of libraries and researchers are to be met. Moreover, such an update is vital to libraries' ongoing and uphill efforts to solve a preservation problem which now ranks as nothing short of a national intellectual and historical crisis.

This update would make Section "technology-neutral" throughout, thus allowing libraries to use the best and newest technology platform to carry out the activities - which include preservation and archiving - authorized by Section 108.

An update would also add an important new subsection designed to help the library community meet the special preservation challenges posed by digital works in obsolete formats (i.e., works which can no longer be accessed by the technologies that produced them because such technologies are no longer reasonably available).

Specifically, the DFC proposes that Section 108 be revised to make clear that: (1) libraries, archives, and other non-profit educational institutions may use all appropriate technologies to preserve deteriorating works; (2) sufficient non-circulating copies may be made to assure a preserved work's survival; and (3) copies for research and public use may be made and retained in multiple technological formats, when necessary.

The First Sale Doctrine: Applying Common Sense and Fairness in Cyberspace

It has long been recognized in American law that someone who legally obtains a book or video cassette, for example, may -- without the permission of the owner or fear of liability -- give, sell or otherwise transfer possession of that work to someone else. Library lending, for example, is a direct outgrowth of this First Sale doctrine now codified at Section 109(a) of the Copyright Act.

The Digital Future Coalition rejects the suggestion that the First Sale doctrine applies only to the physical transfer of an actual object and does not apply to the electronic transmission of a work under any circumstances. Such analysis, in any event, misses the critical point that Congress now has the opportunity to determine whether some digital equivalent to the traditional first sale doctrine, as it exists in the analog information environment, should apply in cyberspace. We believe that it should.

Historically, the ability to pass on lawfully obtained copies of works has been important to libraries, scholars, and ordinary information consumers. It has also be a crucial factor in the emergence of new business models. Just as first sale in the past has given us everything from lending libraries to video rental outlets, we believe that the digital equivalent of first sale could be the basis for important new cultural and economic developments in cyberspace.

The DFC urges the Subcommittee to amend Section 109 to make clear that, regardless of the technological format in which a copyrighted work was lawfully acquired, that copy may be passed on to another or resold, provided that the transferor does not retain a copy of that work.

Distance Learning: Technology for Teachers and Children

Since the advent of broadcasting and other means of electronic communication, educators have striven to use the latest communications technologies to provide or enhance elementary, secondary, vocational and university-level schooling to every corner of the country. Congress has for the past two decades supported distance learning in Section 110 by expressly permitting electronically transmitted copyrighted works to be performed and displayed in classroom-like settings. Specifically, the carefully-crafted provisions of Section 110(2) of the Copyright Act of 1976 allows for the "performance or display" of certain works by means of "transmission" in educational settings.

However, this limited exemption, though appropriate for the use of traditional broadcast technology, is inadequate to permit educators and students involved in distance learning to electronically transmit or access lessons through digital information networks - such as the Internet - that may now be televised.

Therefore, the Copyright Act should be updated to: (1) grant educators the right not only to perform and display a transmitted copyrighted work (under appropriate circumstances), but to "distribute" the work as well; (2) reflect in the definition of a "classroom" that education no longer takes place only in a defined space in which a teacher lectures to a group of students who take notes; and (3) recognize that -- if educators are to reach a generation reared on television, video games and the Internet -- they also should be permitted to use "multimedia" and other new forms of copyrighted material in distance learning lessons under the same terms and conditions under which they now access more traditional works, such as books and sheet music.

Non-Negotiated License Terms: the Collision of Contract, Copyright & Consumers

The current trend toward the use of "shrink-wrap" and "click-on" licenses to define the terms on which information consumers are permitted to use works of which they purchase threatens to undermine decades of work by the Congress and the Courts to define and maintain the vital balance of American copyright law. If the terms of a virtual contract of adhesion can dictate to an information consumer that copyright law notwithstanding she waives any fair use privilege as a condition for gaining access to a protected work, our intellectual property law will increasingly be made through contract cases decided under state law.

Unfortunately, recent case law, including the decision in ProCD v. Zeidenberg, suggests that this is no mere possibility, but a current reality. Ongoing efforts to revise the Uniform Commercial Code to provide for the easy enforcement of "shrink-wrap" and "click-on" licenses in sales to consumers threaten to further destabilize the foundations of our national federal intellectual property system. We believe that it is important that before this trend goes farther, the Congress reassert the primacy of federal law.

Obviously, agreements freely negotiated among parties with equivalent bargaining power may sometimes include terms constraining further use or reuse of licensed information. Such agreements, however, do not threaten to become de facto law of intellectual property. By contrast, "shrink-wrap" and "click-on" licenses do. Thus, the DFC urges Congress to amend the existing Section 301 of the Copyright Act, which deals with preemption, to make clear that "non-negotiated" license terms which contravene the provisions of the Copyright Act by restricting the use of unprotected material or abrogating limitations on exclusive rights should be unenforceable.

Conclusion

The issues of circumvention and copyright management information addressed by H.R. 2281do not, and cannot, stand alone. If Congress seeks to ensure continued balance in the Copyright Act as it is updated for the digital age, other issues of equal importance must be resolved at the same time. Accordingly, the Digital Future Coalition submits that any legislative package designed to implement the WIPO treaties should address the issues of service provider liability, fair use, distance learning, first sale, digital preservation, and non-negotiated license terms. Moreover, as in the past, formal ratification of the treaties should await broad agreement on such legislation.

The Digital Future Coalition, itself comprised of information proprietors and users, recognizes the need to modernize copyright to apply productively in cyberspace. As Congress undertakes the first major overhaul of the Copyright Act in over two decades, the DFC urges all Members to take the time and care required to honor and reach the Framers' goal of assuring "Progress in Science and the Useful Arts." The DFC looks forward to working with this Subcommittee, the full Judiciary Committee, and the Administration to enact comprehensive legislation that ensures balance in the Copyright Act into the next millennium.

American Association of Law Libraries
American Association of Legal Publishers
American Committee for Interoperable Systems
American Council of Learned Societies
American Library Association
Art Libraries Society of North America
Association of Research Libraries
College Art Association
Committee of Concerned IP Educators
Computer Professionals for Social Responsibility
Computer & Communications Industry Assoc.
Consortium for School Networking
Conference on College Composition

and Communications
Consortium of Social Science Associations
Consumer Project on Technology
Electronic Frontier Foundation
Electronic Privacy Information Center
International Society for Technology in
Education
Home Recording Rights Coalition
Medical Library Association
Modern Language Association
National Association of Independent Schools
National Council of Teachers of English
National Education Association
National Humanities Alliance
National Initiative for a Networked Cultural
Heritage
National School Boards Association
National Writers Union
Society of American Archivists
Special Libraries Association
United States Catholic Conference
United States Distance Learning Association
Visual Resources Association


APPENDIX

DIGITAL FUTURE COALITION

Detailed Analysis of Proposed 17 U.S.C. 1201 in H.R. 2281

Section 1201(a) concerns the circumvention of a technological protection measure that controls "access" to a copyrighted work. Section 1201(a)(1) prohibits the act of such circumvention; Section 1201(a)(2) prohibits the manufacture or importation of devices which achieve such circumvention. In plain English, Section 1201(a) seeks to prevent a user from gaining access to a work without paying for it. While the general principle is non-controversial, the language implementing it is far too rigid. It fails to acknowledge that there are legitimate reasons for unauthorized access. Section 1201(a) is not designed to implement the WIPO treaties, which address the circumvention of specific anticopy technologies; rather, Section 1201(a) is designed to prevent the circumvention of technologies designed to bar any unauthroized access, for whatever purpose, to copyrighted works.

The problems begin with Section 1201(a)(1), which is not limited to cases where a user has not paid for access to the work. Thus, even if a user does pay for access to the work, the content owner could still deny her access to parts of that work. The user, for example, might purchase a multimedia product which contains a bug. Section 1201(a)(1) prevents the user from circumventing the technology which controls access to the computer code underlying the multimedia product. This prevents the user from correcting the bug herself. The vendor of the product might elect to deny its purchasers access to the underlying code so as to force the purchasers to use the vendor's maintenance services. Moreover, Section 1201(a)(1) could operate to prevent a licensee from gaining access to a work to make a back-up copy of a software program, even where this would be permitted under Section 117 of the Copyright Act. Likewise, it could be employed to frustrate the operation of the "first sale" doctrine under Section 109.

Additionally, it would be easy to exploit this provision to obtain de facto perpetual copyright protection. If a novel were about to enter the public domain because the term of protection would soon expire, the content owner could attach a new foreword, and then protect the novel and the foreword with access control technology. Because the foreword is still protected under the Copyright Act, the user would be barred circumventing the access control technology, even though the text of the novel itself was no longer protected.

Section 1201(a)(1) would also chill encryption research. The field of cryptography advances by researchers attempting to crack existing security systems. Once a system is cracked -- once its weaknesses are identified -- researchers can find ways to strengthen it. Section 1201(a)(1) seems to permit this research activity only if the content owner permitted his encrypted work to be decrypted; that is, only if the owner of the content protected by the system agrees in advance to the research by the particular researcher. The research process will inevitably be retarded as the general counsels of universities and encryption firms prohibit researchers from proceeding until all necessary authorizations have been received in writing.

It would be a mistake to assume that only legitimate content owners would take advantage of Section 1201(a)(1). A prohibition on the circumvention of access control technology could prevent parents, for example, from supervising their children's use of the Internet.

That regime also could operate to restrict an individual's ability to protect his personal privacy. Once a "cookie" -- a tiny computer program which transmits information concerning the contents of a computer's memory -- gets implanted in a user's hard drive, Section 1201(a)(1) could prohibit the user from circumventing the cookie's access control technology in order to disable it. Cookies, after all, are arguably copyrighted works. This inability to disable a cookie would be particularly destructive if the cookie belonged to a criminal who was using the information it generated for unlawful purposes. Section 1201(a)(1) would in similar fashion prevent a user from disabling a virus -- another copyrighted work.

Section 1201(a)(2) compounds the problems identified with respect to Section 1201(a)(1) by prohibiting the manufacture of products which would enable these desirable acts of circumvention. Moreover, Section 1201(a)(2) has problems of its own unrelated to Section 1201(a)(1).

Section 1201(a) contains one provision targeting the act of circumvention and another provision targeting the manufacture of circumvention devices. Section 1201(b), by contrast, targets only the manufacture of circumvention devices. In earlier drafts considered by the Administration, Section 1201(b) also prohibited the "use" of circumvention devices. The Administration treats its deletion of the use prohibition as a major concession to the user community. It is, however, a completely empty concession, because the manufacturers are still prohibited from making the devices users might wish to use.

The fundamental flaw with Section 1201(b) is that it prohibits the manufacture of anticopy circumvention devices, regardless of the purpose of the circumvention. Like Section 1201(a), Section 1201(b) is based on two flawed assumptions. First, it incorrectly assumes that only bad actors -- pirates -- want to circumvent. Second, it incorrectly assumes that only good actors -- legitimate content providers -- would want to use anticopy technologies.

There are many legitimate reasons for seeking to circumvent anticopy technologies. These reasons are as numerous as the exceptions to copyright contained in the Copyright Act. The most obvious is fair use. A developer of innovative Internet software, for example, would not be able to purchase or develop the tools necessary to circumvent a software lock intended to prevent reverse engineering permitted under the fair use doctrine. By preventing this reverse engineering, a dominant vendor of Internet access software could limit the ability of the innovative software to interoperate with the vendor's software.

Section 1201(b) would also limit the exercise of privileges other than fair use. Libraries might not be able to obtain the devices necessary to make the preservation copies permitted under Section 108. Purchasers of computer programs might have no practical way to make back-up copies permitted under Section 117. In short, Section 1201(b) would render ineffective almost all the exceptions in the Copyright Act.

Finally, Proponents of Section 1201 assert that the savings clause in Section 1201(d) insures that fair use and the other limitations in the Copyright Act will not be curtailed by Section 1201. Regrettably, Section 1201(d) as drafted does not achieve this result. It simply says that Section 1201 will not "affect" existing limitations on the exclusive rights of copyright owners or existing defenses to actions for copyright infringement brought in connection with those rights. While Section 1201 will not as a formal matter prevent users and consumers from relying on limitations and exceptions to copyright, as a practical matter it will preclude the exercise of these limitations and exceptions by preventing the manufacture of the technologies necessary for their exercise.