July 15, 1996

Yet another new Internet law, this one governing copyright on
the global computer network, has found its way into the
legislative sausage grinder on Capitol Hill. But it looks as though
this one might not make it into the frying pan any time soon.

Bruce Lehman, the commissioner of patents and trademarks, whose
agency drafted the bill, acknowledged in an interview last week that
the bill, known as the National Information Infrastructure Copyright
Act, was stalled in Congress. But many people in the information
industry and in public-interest groups are hoping it never moves
forward.

The bill was drafted as a minor, necessary tweak to copyright law
similar to other revisions made over the years to accommodate new
technologies. The bill assumes that existing copyright law
can handle most situations that arise on the Internet.

But opponents say that the bill’s continued reliance on
existing copyright law is dangerous, because it ignores
the unique issues that arise when information is
transmitted over computer networks.

These critics fear that conventional copyright law, if
strictly interpreted for electronic transmission of
information, could subject Internet users to legal liability
much harsher than that found in other media forms.

But Lehman sees nothing unique about the Internet, and
no need for sweeping new legislation. “Copyright law
covers vastly different technologies,” he said. “It has
adjusted to cover a lot of new things that have come to
existence.”

The bill has recently been under debate in subcommittees of both chambers of Congress. In the
House it was sponsored by Patricia Schroeder, D-Colo., and Carlos Moorhead, R-Calif.; in the
Senate it was sponsored by Orrin Hatch, R-Utah and Patrick Leahy, D-Vt.

The legislation’s overall goal is laudable: to amend existing copyright law so that information
providers can reasonably expect to be compensated when selling their wares on the Internet.

Its provisions are hardly earth-shattering. It asserts that copyright law is as valid for electronic
media as it is for physical media, makes it illegal to remove copyright identification from
electronic media, and bans unauthorized use of devices for deciphering copyrighted information
that has been electronically scrambled.

But the bill’s lack of specific language clarifying what new liabilities
may exist on line has brought it under attack by on-line service
providers and consumer-electronics manufacturers, which are doing
their best to block the bill.

Given the ease with which information moves electronically, those
groups have serious concerns about their liability, under the
proposed law, for illegal copies created and distributed by customers over whom they have no
control.

They are joined by several organizations that have formed a group called the Digital Future
Coalition.

The coalition contends that the bill is “a much broader agenda to shift the balance of power in
copyright in favor of publishing-industry interests,” said Pamela Samuelson, a member of the
group’s steering committee who is also a professor of intellectual property law at the University
of California at Berkeley.

One of the best examples of this, according to Ms. Samuelson, could be a rigorous interpretation
of what copyright lawyers call the “first-sale” rule. Under current copyright law this rule means a
copyright holder controls only the first sale of his or her work to the public.

When I buy a magazine at a newsstand, for example, it becomes my personal property through
the first-sale rule. I can legally redistribute it, but only in certain ways. I can lend it, give it away
or rent it out, as long as I don’t make copies of it.

But when I use a computer on the Internet, if I paid to download a magazine article and decided
to pass it along to a friend, this action would technically require me to make a copy, which would
be stored temporarily in my computer’s memory. I might conform to the spirit of the first-sale
rule by deleting my version of the article after sending the copy.

But, Ms. Samuelson said, I would still have violated the law because I did not have the owner’s
permission to make the temporary copy.

Ms. Samuelson said that the ease of making electronic copies of computer data was of
paramount concern to Internet publishers developing systems that will enable them to sell
individual articles to customers. But she argued that this concern did not justify putting tighter
restrictions on the flow of information.

“People should be able to share on a noncommercial basis,” she said. “That’s the ultimate purpose
of copyright — to promote knowledge and discussion, not just to maximize rewards to copyright
owners.”

Though congressional subcommittee members are apparently not ready to vote on the measure,
Lehman intends to present the bill’s main provisions at a meeting in September of the U.N. World
Intellectual Property Organization. He wants it to be adopted as part of the organization’s Bern
Convention for the Protection of Literary and Artistic Works.

“If this issue is placed in an international context,” Lehman said, “it certainly should be more
persuasive” to Congress.

But as with so many other economic facets of the Internet, copyright may be an issue that still
needs to define itself, as users and commercial ventures continue to experiment with the
computer network.

Lehman seems to tacitly agree. “If the market is going to demand a freer or less commercial
environment,” he said, “nothing in our law is going to stop that.”

Ms. Samuelson questioned the wisdom of pushing legislation that she believes is doomed to fail.
“If this law passes, it may prove to be unenforceable,” she said. “We have to make laws that are
sensible, so that ordinary people will respect them.”

Denise Caruso

Copyright 1996 The New York Times Company