Subject: Re: WIPO treaty
From: John Gilmore <gnu@toad.com>
Date: Sun, 28 Jun 1998 18:00:26 -0700

Bob asked:
> Do you have a capsule summary of this issue?  Something along the 
> lines of "call your congressman and tell him to vote for HRxxx and to 
> vote against HRyyyy because...".  in order to turn it into a blue 
> ribbon-type web campaign?

Here's what I gave to my own Congresswoman.  Feel free to shrink it.
The bills to vote for, or the modifications required, are mentioned a
few paragraphs down.  I hate to tell people to "vote for X, vote
against Y" without giving them reasons they can understand, so I can't
quite shrink it to a paragraph yet.  But I'd be pleased if you figured
out how to do so.

	John

Speaking about the WIPO bill at Harvard last week taught me something
very important about it.

It should be legal for users to circumvent technological protections
on intellectual property WHEN THOSE PROTECTIONS ARE MISTAKENLY APPLIED
BY THE EQUIPMENT TO THE USER'S OWN INFORMATION.

HR 2881 is a continuation of the trend from the Audio Home Recording
Act of 1992, which required digital audio products such as DAT
recorders to contain technological means to prevent copying of
intellectual property.  The effect in the market of this experiment in
technological protection is clear.  Their protection is not limited to
actual cases of copyright infringement.  They provide "protection"
against copying to essentially ALL works that they record -- including
original works created and owned by the end-user.  Our board member
John Gilmore used such a recorder to record his brother's wedding
ceremony, only to discover that he needed a "circumvention device" in
order to make digital copies of his own recording to give to his own
family.

The nub of the problem is that the machine cannot, as a matter of law,
determine whether an individual act of copying or performance is
legally permitted (e.g. the material is owned by the end-user, or the
end-user has permission from the owner), versus when a copyright is
being violated.  It's just a machine and doesn't know the material,
the parties, the contracts between them, or the extent of rights
granted to all users by the Copyright Act.  Knowing that the machine
will make errors in this determination, manufacturers have uniformly
and deliberately chosen to make those errors IN THE DIRECTION OF
RESTRICTING LEGITIMATE COPYING rather than IN THE DIRECTION OF
ALLOWING OCCASIONAL INFRINGING COPYING.  (It's no wonder -- the
intellectual property protection constituency has been loud with legal
threats against manufacturers who choose the other way, despite the
clear Supreme Court ruling in the Sony v. Universal ("Betamax") case.
DVD video equipment is a clear and recent case in point.)

HR 2281 would make it illegal for an end-user to circumvent these
technological protections, even when they impede the user's legitimate
use of their own material.  It would make it illegal for anyone to
sell "circumvention" equipment that assists the end-user in their own
legitimate use of their own material.

We believe that HR 2281 should be discarded and that the alternative
bill, HR 3048, should be passed.  HR 3048 only outlaws circumvention
of intellectual property protection WHEN ACTUALLY USED TO INFRINGE A
COPYRIGHT.  This would permit a robust market in equipment that
allows end-users the freedom to record, play, copy, and perform their
own material.  The market envisioned by HR 2281 would deny end-users
these freedoms in an overzealous effort to protect the rights of 
other intellectual property owners.

If nothing else, HR 2281 should be modified to require that in cases
where a device applies technological protection to intellectual
property whose ownership is not clearly known (such as analog
signals), its protections must default to assuming that the end-user
is the owner of the property, permitting the material to be played,
copied, and otherwise manipulated without restriction.

We would also argue that in cases where a device can record original
material and potentially apply technological protection to it, HR 2281
should require the device to permit the originator to specify
(e.g. with a switch) whether the owner DESIRES that restrictions be
applied to the work, or whether the owner desires that the work be
usable without technological restriction.  The device must record this
desire along with any protection it applies to the material, and it
and other interoperating devices must honor the expressed desire, in
determining the level of technological restriction to apply to
subsequent uses of the material.

These two provisions would reverse the "default" that pressure from
intellectual property owners has created, permitting ordinary
end-users to record their own material, and to choose whether to apply
technological protection to it or not.

	John Gilmore
	PO Box 170608
	San Francisco, California, USA  94117
	+1 415 221 6524	voice
	+1 415 221 7251	fax
	gnu@toad.com