Washington, D.C.
October 18-20, 1995
Peter Jaszi, Professor of Law
Washington College of Law
American University
My topic is the Report of the Working Group on Intellectual Property Rights of the Information Infrastructure Task Force — the White Paper. In the analysis that follows, I’m going to take the White Paper seriously — that is, focusing not only on its specific legislative recommendations, which have been introduced in Congress as S. 1284 and H.R. 2441 — but also devoting attention to the narrative out of which those recommendations grew and which forms the bulk of the document. There is both a practical and heuristic reason for proceeding in this way. The concrete legislative recommendations of the White Paper are as important for what they don’t say as for what they do say. The significance of the gaps and the silences of the legislative proposals can best be understood by examining the supporting text. Moreover, I’m convinced that the two parts of the White Paper, taken together, express a visionary role of intellectual property (IP) in general — and copyright in particular — in a networked digital information environment. And, I should say at the outset, the appropriateness of that vision is one about which I have profound doubts. In what follows, I will try to detail that vision — and its shortcomings — as I see them.
In the White Paper, copyrighted works are conceptualized as though they were equivalent to physical packages of information, produced to be sold as integral units to end consumers. In the context of print technology, of course, such a conceptualization had a certain, albeit incomplete, logic: a book is a physical container, produced by industrial processes not unlike those which produce a ball or a jacket — even though the value it contains is immaterial in nature. But this view of the copyrighted work is obviously particularly inapt to works in digital form. Thus, throughout the White Paper, the immateriality and fluidity of digitized information appear as a problem to be solved through the imposition of new legal safeguards, prohibitions, and penalties, rather than the source of opportunities to be embraced. Put another way, the White Paper struggles to put the genie of digital information technology back in the bottle of the copyright system originally devised to regulate the traffic in printed books — something which can be achieved, if at all, only by enlarging and strengthening the bottle.
The ironic result is that, in the regime of intellectual property law envisioned in the White Paper, the digital information consumer actually has less assured access and fewer use privileges than does the consumer of works in “hard copy” form.
First, however, I want to take a moment to put the White Paper into the context of copyright history. Copyright law began almost three hundred years ago in England, as part of an effort to impose regulatory discipline on the increasingly unruly market in printed books. From its inception, the authors’ (or publishers’) interest in copyright was always of a special, qualified kind, of private rights, limited in various ways, which express and implement the public interest in an increasingly accessible store of knowledge. These rights are limited in duration, scope, and intensity by such doctrines as “first sale,” “fair use,” “idea/expression merger,” and so forth.
The peculiar character of copyright “property” was recognized in the Art. I, Sec. 8, Cl. 8 of the U.S. Copyright Act and in a long line of important Supreme Court decisions which stress the public purposes for which the limited monopoly of copyright is conferred on individuals — well summarized on pp. 19-23 of the White Paper itself. The notion of “balancing” proprietary interests against user interests — including the interests of the next generation of creators, who progress by drawing on the accomplishments of the last — has been prominent in the rhetoric surrounding every major revision of the U.S. copyright laws, including the most recent general revision in 1976.
One thing the 1976 Act did not address was the challenge of digital technology — and for good reason. Difficult as it is to remember, there was real doubt to begin with as to whether “machine-readable” works like computer programs expressed in digital code were even the appropriate subject-matter of copyright. This threshold question was resolved — in favor of protection — as a result of the judicial interpretation of amendments enacted in 1980 on the (1978) recommendations of a Congressionally-established Commission On New Technological Uses of Copyrighted Works (CONTU). But other questions remained, such as, “How much protection is a computer program entitled to receive?” Another round of court cases were required to begin to resolve this question. In them, the pendulum swung first in the direction of providing extremely strong protection — even stronger, in effect, than that available for works in conventional formats. Now it has swung dramatically in the other direction, toward providing less protection — what some would say is too little protection — for software programs. Notably, however, Congress and the courts have had little to say to date about the copyright status of works in digital form other than programs, and even less (if that is possible) about copyright in the networked environment. That is where the National Information Infrastructure (NII) Working Group and the White Paper come in.
What are the objectives of the project which gave rise to the White Paper? One claim of the document is that stronger protection is needed because “[T]he full potential of the NII will not be realized if the education, information and entertainment products protected by intellectual property laws are not protected effectively when disseminated via the NII. Creators and other owners of intellectual property rights will not be willing to put their interests at risk if appropriate systems — both in the U.S. and internationally — are not in place to permit them to enforce the terms and conditions under which their works are made available in the NII environment.”
The invocation of international legal systems in the preceding quotation is no mere passing reference. Indeed, in a very real sense, the White Paper is addressed to a global as well as to a national audience. It was released simultaneously in the United States and at a meeting convened by WIPO in Geneva, one of a series intended to lay groundwork for new treaties to supplement the Bern Convention. In these meetings, the United States has been energetically and effectively pressing a “digital agenda,” and very recently our delegation submitted draft treaty language which parallels the recommendations of the White Paper. A diplomatic conference to conclude the new treaties could be held as early as summer 1996.
At the domestic level, in any event, the White Paper — in its legislative recommendations and in its sometimes controversial interpretation of the meaning of current law — succeeds in outlining a program well calculated to raise the comfort level of “content providers.” If this were the only stated goal of the enterprise, it would have to be judged, at least on its own terms, to be an unqualified success. But it is not the only stated goal. Another claim of the White Paper is that “[t]echnology has altered the balance of the Copyright Act” and that action is needed to “accommodate and adapt the law to technological change so that the intended balance is maintained and the Constitutional purpose is served.” Whether its interpretations and recommendations actually restate the traditional balance in copyright law is another question.
What, then, does the content of the document amount to? I’d like to try to address this question under three headings: rights, limitations, and liability.
Where rights are concerned, the White Paper envisions a legal environment in which the copyright owner of a work in digital form has the exclusive right to license — or to decline to license — practically any electronic use of that work, whether it involves sending the work, receiving it, reviewing it, storing it, or altering it. And, as is generally true of the technique of the White Paper, this environment is presented, in effect, through the interaction of a tendentious interpretation of existing law and a proposal for legal change.
Under Section 106 of the Copyright Act, the owner of a copyrighted work enjoys the exclusive right “to reproduce” it. In the White Paper narrative, we are told that “[i]t long has been clear under U.S. law that the placement of copyrighted material in a computer’s memory is a reproduction of that material (because the work in memory then may be, in the law’s terms, perceived, reproduced, or communicated... with the aid of a machine or device).” But, as we know, there is memory and memory. It is obvious that the copyright owner has an exclusive right to download a copy of his or her work to ROM (or some other permanent storage medium); the legal status of the “ephemeral copy” which is generated when a program or other digital work is loaded in RAM is unclear. The White Paper’s assertion that the law is “clear” turns out to be based on an ambiguous passage in the 1978 CONTU Report and a small handful of recent court decisions, some of them controversial in their own right. No mention is made of a passage in the legislative history of the 1976 Copyright Act which can be read to suggest an opposite result.
The net result of this interpretation, of course, is to make any act of “reading” a digital work acquired online or through a network, including the everyday act of browsing information accessible over the Internet, a potential infringement of proprietary rights.
The White Paper’s interpretative gloss on the scope of the reproduction right has other consequences as well. The legislative proposals of the White Paper include a suggestion that Sec. 106 should be amended to make it clear that sending a digital work over a network should be regarded as a “transmission” — and that the making of such transmissions should be considered as an aspect of the copyright owner’s right of “distribution.” A proposed new definition in Sec. 101 would state that “[t]o ‘transmit’ a reproduction is to distribute it by any device or process whereby a copy or phonorecord of the work is fixed beyond the place where it is sent.” It follows that if a RAM copy of a work is a “reproduction,” and therefore fixed, any network communication of a digital work, no matter for what purpose it is undertaken, may result in infringement liability for its sender as to well as its receiver. Where the sender’s liability is concerned, the White Paper offers the comforting information that “[t]he case law interpreting ‘publication’ provides guidance as to what constitutes distribution to the public. If a distribution would not constitute a publication of the work, then it would likely be found to be outside the scope of the copyright owner’s distribution right.” But the case law seems to be less than generous in this area — since even the gratuitous transfer of a single copy may count as a distribution “to the public.”
Indeed, the existing exemptions for certain uses of copyrighted works now available to educational institutions under Sec. 110(2), which provide a privilege for the performance or display of a work by transmission, but not for its the distribution of copies, would no longer apply. This conclusion, by the way, casts doubt upon the legal status of present and future projects in the area of “distance education” by digital means.
There is no doubt that there is a synergy between the interpretations and legislative proposals in the White Paper, and this may be advantageous in terms of the way network transactions can be policed — no doubt, that is, that the vision of rights articulated in the White Paper is one that would, if adopted, provide additional security for copyright owners. It is less clear if the White Paper’s vision of rights is one which truly restates or restores the traditional balance in copyright law. To the contrary, the net effect would appear to be one that would prohibit or chill a variety of routine practices of network information users today.
This brings me to my second topic, limitations on the rights of the copyright owners. And, except for an amendment to Sec. 108 under which libraries would be entitled to make digital preservation copies of protected works under certain circumstances, the White Paper’s legislative proposals do not address the issue of exceptions or exemptions specifically applicable to works in digital form. From this silence, one might draw the conclusion that, in the vision of the White Paper, traditional limiting doctrines will continue to apply, with full force, in the digital environment. The narrative of the White Paper, however, suggests otherwise.
One example is the treatment of one of the most important “pro-access” rules of traditional copyright — the so-called “first sale” doctrine. Originally a judge-made limitation on copyright ownership, first sale has, over time, given us such institutions as public libraries and video rental stores. The draft report of the Task Force on Intellectual Property Rights — the “Green Paper” released in August 1994 — had suggested that legislation might be required to curtail the operation of the doctrine, now codified in Sec. 109, in the digital environment. In its final form, the White Paper doesn’t include such a legislative recommendation — but only, it would seem, because its authors concluded that none was necessary. In their view, first sale was largely inapplicable to digital information transactions in any event — even when the transmission of a lawfully acquired work in digital form occurs simultaneously with its deletion from the system of the person transmitting it. The report concludes that,
It seems clear that the first sale model — in which the copyright owner parts company with a tangible copy — should not apply with respect to distribution by transmission, because transmission by means of current technology involves both the reproduction of the work and the distribution of that reproduction. In the case of transmissions, the owner does not dispose of the possession of that copy or phonorecord.
Elsewhere, of course, the White Paper expands upon — or analogizes to — the rights that copyright owners enjoy in the print environment as it addresses the circumstances of a new technology. But here, rather than taking the opportunity to restate the first sale doctrine in terms which would translate its objectives into the digital information environment, the White Paper narrative chooses to interpret the doctrine narrowly — even formally — so as to read it substantially out of the law where new information technology is concerned.
Where the fate of an even more important limitation on the rights of the copyright owner, fair use, is concerned, the White Paper is somewhat more ambiguous — more ambiguous, certainly, than the Green Paper which preceded it. The Green Paper was widely criticized for ignoring the cultural values expressed in the Sec. 107 fair use doctrine and instead analyzing it exclusively as a mere artifact of the relatively high cost of obtaining copyright clearances in the print environment, arriving at the conclusion that, where digital uses were concerned, the speed and ease of electronic licensing transactions might render fair use obsolete. In light of these critiques, it would have been some comfort to find in the legislative proposals of the White Paper, or even in the supporting narrative, clear language to the effect that traditional notions of fair use continue to apply, with full force, in the digital networked environment. Again, however, the section of the report devoted to legislative proposals is silent, and the content of the narrative is less than wholly reassuring.
In a telling passage describing the ongoing and still inconclusive deliberations of the Conference on Fair Use convened by the Working Group, the White Paper states that “[s]ome participants have suggested that the United States is being divided into a nation of information ‘haves’ and ‘have nots,’” and that this could be ameliorated by ensuring that the fair use defense is broadly generous in the NII context. The Working Group rejects the notion that copyright owners would be taxed — apart from all others — to facilitate the legitimate goal of “universal access.” This novel description of fair use as a “tax” on the defined preexistent content of proprietary rights — rather than an inherent part of the definition of those rights themselves — and the stern impatience with which it is conveyed is revealing about the underlying assumptions of the White Paper where the balancing of interests is concerned.
Equally disconcerting, the White Paper recites that, “for the most part, ‘mere reproduction’ has fared rather badly in court under the Copyright Act,” citing various cases dating back to 1983, but making no mention whatsoever of what is arguably the most directly relevant judicial precedent — the Ninth Circuit Court of Appeals 1993 decision in Sega v. Accolade, which held that reproduction of a copyrighted computer program could be a fair use when undertaken for purposes of “reverse engineering.” And — like the Green Paper before it — the White Paper appears to endorse the view that “technological means of tracking transactions and licensing will lead to reduced application and scope of the fair use doctrine,” a proposition for which the 1994 Second Circuit decision in American Geophysical Union v. Texaco is given as authority. Since a substantial part of the White Paper is devoted to advocating the importance of developing just such “technological means” — and that of modifying the law of commercial transactions to permit information sellers and buyers to enter into instant, binding electronic licensing agreements — it is difficult not to see the just-quoted passage, coming as it does in the ultimate paragraph of the White Paper narrative on the general law of fair use, as having a special relevance to the document’s overall vision of copyright in the digital information environment.
In sum, fair use receives no reaffirmation in the legislative recommendations of the White Paper. A naive reader of the narrative would never guess that the doctrine is, from the perspective of many, one of the indispensable features of American copyright. Maintaining the survival of fair use in a robust form, should be among the first objectives of any exercise in copyright law revision.
In any intellectual regime property, the balance of rights and limitations on rights are implemented through rules of liability. So the White Paper’s treatment of liability for copyright infringement in the networked environment is of special importance to a fuller understanding of the vision of that document. Once again, the full vision of the White Paper emerges only when the narrative and the legislative proposals are read in close conjunction with one another.
Obviously, no matter how generously rights are defined, or how restrictively the limitations on those rights are interpreted, effective enforcement of intellectual property requires that the rightsholders be able to hold some particular individual or company liable for violations that do occur. In the networked environment, where many of the individuals who make and receive transmissions may be difficult to trace and even more difficult to proceed against, this requirement poses special challenges. So it isn’t surprising that one of the topics most widely discussed and debated in the months between the issuance of the preliminary Green Paper and the finalization of the White Paper was that of secondary liability. That is, to what extent should online service providers, large and small bulletin board operators, and others who maintain spaces for electronic information exchange — whether they are businesses or non-profit entities — be held liable when those who make use of their services engage in unauthorized exchanges of copyrighted information? Fairly obviously, there is good ground for secondary liability in cases where a BBS operator (for example) somehow invited users of its service to engage in exchanges of copyrighted material — and profited as a result. But what about the many cases in which (for example) the service provider has no such direct knowledge — although it might be able to acquire such knowledge through more intrusive monitoring of the electronic traffic it routes and relays? Obviously, the answer to this question is a matter of some consequence, not only for the future of copyright law enforcement in the networked environment, but also for the future of the privacy interests of those who use digital networks as a communication tool.
From the perspective of service providers and their clientele, clarification of the law on “third-party liability” could hardly be more urgent. But, despite its obvious importance, the White Paper makes no specific proposal on third-party liability. Instead, the White Paper narrative states that for now, the issues should be left to the courts rather than made the subject of legislation, stating that “[i]t would be unfair — and [would]set a dangerous precedent — to allow one class of distributors to self-determine their liability by refusing to take responsibility” and that “exempting or reducing the liability of service providers prematurely would choke development of marketplace tools that could be used to lessen their risk of liability and the risk to copyright owners....” And perhaps to give the development of such “tools” — including indemnification agreements with customers, collective licensing arrangements with copyright owners, and “technological protections, such as tracking mechanism” — the White Paper narrative seems strongly biased toward a broad definition of the liability of service providers under current law. Although conceding that there are “colorable arguments on each side” of the issue, the discussion in the White Paper, read as a whole, could serve as an effective brief for holding providers to an extremely high standard of care — one which would, in practice, make the continuation of many of their existing practices impossible.
In the vision of the White Paper, then, third-party liability — or the specter of third-party liability — plays an important part in the enforcement of intellectual property rights in cyberspace. So does technology. A good deal of the space in the report is devoted to detailing various technological means — so-called “copyright protection systems” — which could serve to harden works in digital form against unauthorized copying or redistribution, and among the most significant of the White Paper’s legislative proposals is one which would make it a violation of law to abet efforts to avoid or disable these new technological methods of protection.
How, then, might one sum up the “vision” of the White Paper where the role of copyright in the networked information environment is concerned? I would say that it is one in which the security of information owners is given paramount importance, while the claims of information consumers accordingly receive only a secondary recognition. More generally, I would say that it is a vision in which the economic engineering issues in the development of the NII are emphasized almost to the exclusion of what might be called “cultural” issues — such as the quality of the user experience — the resolution of which ultimately may be just as important, if not more important, in determining whether the promise of the NII is realized. And, I would say that it is a vision which focuses more on the past than the future, one in which digital information technology is represented as a continuation of the information technologies of the print era rather than an innovation which is in many ways discontinuous with what has gone before. But I would also concede that it is a powerful vision — just as the White Paper itself is a powerful piece of advocacy. As skeptical as I am about both its methods and its conclusions, I welcome it as the opening of the most important intellectual policy debate of our time.