Washington Brief - December 2002

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Dateline: October 4, 2002

The past few weeks have been very busy for us as Congress moves at a frenetic pace to complete its work, including the ongoing negotiations over the resolution authorizing the use of military force against Iraq and the Homeland Security legislation. The most reliable rumor here in the Capital is that the Senate will adjourn on October 11th and the House on the 18th, with no lame-duck session. We are watching the clock tick since there is a lot of opportunity for mischief in the waning days of any Congress. Here are the latest updates on several issues of key concern to AALL.

S. 487, the TEACH Act
There have been some breathless moments during the past week over whether or not there would be time to move the Technology, Education and Copyright Harmonization Act of 2002 this year. TEACH passed the Senate in June 2001 and was sent to the House Judiciary Committee where a hearing and mark-up were quickly held that July. However, the bill was not reported out of committee and sent to the House floor until September 25, 2002. With leadership's support, it was added as a rider on the conference report on the DOJ Appropriations Authorization Act (H.R. 2215) which passed both the House and Senate this week. It is expected that President Bush will sign the legislation at which time we can all celebrate our first proactive legislative victory of the 21st century!

H.R. 5544, the Digital Media Consumers' Rights Act
We hope that the Digital Media Consumers' Rights Act (DMCRA), introduced yesterday by Congressmen Rick Boucher (D-VA-9) and John Doolittle (R-CA-4), will be our second proactive legislative victory for the new millennium. At a standing room only press conference on October 3, 2002, Rep. Boucher made a lengthy statement on introducing this important legislation that reaffirms fair use in the digital world. Noting that the Digital Millennium Copyright Act of 1998 (DMCA) dramatically eroded the historic balance in copyright law among users, creators and owners, Boucher affirmed that the DMCRA would restore that balance. There are three components to the new legislation:

First, it will amend Section 1201 of the DMCA to provide that the circumvention of a technological protection measure is prohibited only when the purpose is to infringe the copyright of the work. An act of circumvention for fair use purposes would be lawful. Additionally, a manufacturer, distributor, or someone who traffics in a technology that enables the circumvention of a technological protection measure will no longer be held liable under the DMCA if the technology is capable of substantial non-infringing uses. This change will allow manufacturers to continue to develop useful multi-purpose consumer electronics and computing devices, and will ensure that the public has access to technologies that allow them to make fair use of copyrighted works.

Second, it will expand the narrow encryption research exemption of DMCA Sec. 1201 to include "research on technological protection measures."

And third, it will direct the Federal Trade Commission to do a rulemaking so that record companies must provide adequate notification to the consumer on any copy-protected CD. Such disclaimers are generally difficult to locate on the CD case and often do not state clearly that copies may not be made and that it will not play in various devices. Such notice must be obvious and easy to understand.

Our new "DMCRA coalition" will start work next week on developing aggressive congressional and grassroots strategies. A large and diverse group spoke in support of the DMCRA yesterday, including: Intel, the Philips Corporation, Verizon, Sun Microsystems, Gateway, the Consumer Electronics Association, the Home Recording Rights Coalition, the Computer and Communications Industry Association, the Association of American Universities, AALL and our sister library associations, the Digital Future Coalition, the National Writers Union, the Consumers Union, the Electronic Frontier Foundation, Public Knowledge and the American Foundation for the Blind.

Your help in getting cosponsors during the election cycle and as the 108th Congress gears up is crucially important. While having the support of so many business interests is great, as a membership organization we have the ability to run a successful grassroots campaign that will be essential to move the DMCRA into a stronger position when the new Congress convenes in January. For more information, see the joint library statement on the introduction of the DMCRA. In addition, you'll find Rep. Boucher's press statement, an overview of the legislation, the bill and a section-by-section analysis.

Hearing on the Nomination of Bruce James to be Public Printer
The Senate Committee on Rules and Administration, chaired by Sen. Mark Dayton (D-MN), held a hearing on October 3rd on the nomination of Bruce R. James to be the new Public Printer. Mr. James, a graduate of the Rochester Institute of Technology, is a very successful businessman who has spent his career in the printing industry and has vast knowledge of and experience in the digitization of information. Mr. James was the CEO of Barclays Law Publishers until his 1993 "retirement" to Nevada where he pursued a number of public service interests. Lured into government service by President Bush, Mr. James' challenging goal is to re-engineer the Government Printing Office (GPO) so that it remains viable and relevant in the future. We are very impressed with Mr. James' energy, enthusiasm, and commitment to the GPO and the Federal Depository Library Program, and we look forward to working with him on many different issues once he is confirmed by the Senate.

End-of-the-Year "Unresolved" Issues
Database Legislation: Having working hard to negotiate a database bill since the beginning of the 107th Congress, the House Energy & Commerce and House Judiciary Committees seem to have been unable to reach any consensus. On the Senate side, Reed-Elsevier's efforts to get their version of database legislation, which we oppose, introduced late this session appear not to have been successful.

S. 2395, the Anticounterfeiting Amendments of 2002: In last month's column, I noted that S. 2395, the Biden bill, would create liability for trafficking in illicit authentication features on a hologram, watermark, certification, symbol, code or other means of designating that the product to which the authentication feature is affixed is authentic. The bill would pose major problems for anyone exercising fair use. Negotiations with Sen. Biden's office are ongoing although there continue to be substantive disagreements on key provisions of his legislation.

S. 803, The E-Government Act of 2002: We worked arduously with Sen. Lieberman's staff throughout 2001 in helping to craft important public access provisions in S. 803, including a mandate for the development of comprehensive Federal court web sites; a move forward toward no-fee public access to PACER; and progress on the critical issue of permanent public access to and preservation of electronic government information. By the time S. 803 reached the Senate floor, where it easily passed by unanimous consent in late June, the provisions we cared most about had been substantively watered down. A subcommittee of the House Government Reform Committee voted the House version, H.R. 2458, to the full committee on October 1st but with two amendments, including the full-text of the Digital Tech Corps Act that is very controversial. Whether the full committee will have adequate time to deliberate the merits between S. 803 and H.R. 2458, get a bill reported out and to the floor before adjournment is dubious.

OMB Memo on Agency Procurement: Congress and the Administration continue to battle over the May memo from OMB Director Mitch Daniels stating that the FAR regulations will be amended so that agencies no longer will have to procure publications through the GPO. In President Bush's September 30th statement on signing the first continuing resolution, he objected to Section 117 that prohibits all executive branch agencies from spending any funds made available under the continuing resolution to violate Sec. 501 of Title 44 that mandates agency procurement through GPO. Bush referred to the May 1996 opinion by the Department of Justice that Sec. 501 violates the constitutional principles of separation of powers and therefore is not binding on the executive branch.

JCP Chair Mark Dayton had a great deal to say about this in his opening statement at the James nomination hearing on October 3rd. He expressed annoyance that "�when it comes to how you resolve matters of disagreement between one branch of Government and another and who has the authority to decide that something is unconstitutional and to act accordingly, I find it far more distressing that someone at the level of the Director of the Office of Management and Budget would take the position that it is his prerogative or an Assistant Attorney General's prerogative to determine what is unconstitutional, and then have the Executive Branch, especially at that high level, act according to its own dictates."

Given that none of the 13 annual appropriations bills has been passed to date, I suspect that Congress will continue to insert into all future continuing resolutions the same prohibition language against spending any agency funding to violate Sec. 501. In the meantime, we remain in communication with staff of OMB's Office of Federal Procurement Policy as they continue to work on the draft FAR amendment.

Possible Elimination of PubSCIENCE: The Department of Energy has not yet announced a decision on the fate of PubSCIENCE, a service similar to PubMED that was targeted by the Software and Information Industry Association for elimination because it purportedly competes with two no-fee commercial services. We have heard that several hundred comments were submitted, the vast majority in favor of continuing this important service.



Mary Alice Baish
Associate Washington Affairs Representative
Edward B. WIlliams Law Library
111 G Street, N.W.
Washington, DC 20001-1417
202/662-9200 * FAX:202/662-9202
email:baish@law.georgetown.edu