TeleRead Update #4
TeleRead Update #4 
The Copyright Czar and the White Paper, by Mark Voorhees,
Information Law Alert
The Clinton Administration's Green Paper--on electronic books and other intellectual property in a networked era--enraged many librarians and educators. Tech-savvy law professors saw it as an advocacy statement for copyright holders. Now the final version, the White Paper, is about to emerge. So what's the news? Here are my thoughts, followed by those of Mark Voorhees. - David H. Rothman.
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Bruce Lehman, Bill Clinton's intellectual property czar, has supervised the writing of the White Paper. He's a former lawyer-lobbyist who once helped represent the intellectual property interests of Hollywood and software companies--including Lotus and Microsoft. As a Commerce Department official and as head of a working group on intellectual property rights, can he now watch out for the public as a whole? His White Paper may be more library- and school-friendly than the Green Paper. But don't expect miracles. Lehman the former lobbyist is still very much in control even though more people are speaking out. The Library of Congress just is not as influential on copyright matters as during earlier revisions of the laws.
Below are some observations on the Lehman-dominated White Paper from Mark Voorhees, who publishes Information Law Alert, a newsy, plain-English newsletter that explores copyright controversies and other intellectual property issues. His opinions are not necessarily mine, and vice versa--he has no connection with the TeleRead proposal. People interested in TeleRead, however, should welcome his intelligent reportage. He was writing for his May 12th issue; but obligingly D.C. has delayed the White Paper long enough for many if not most of his observations to remain timely. The latest scuttlebutt is that we'll see the new Paper around September.
Some personal opinion from me: Nothing is sacred about the Green Paper, White Paper, Purple Paper, whatever. People on the Hill will be the ones with the most say. Utah's Sen. Orrin Hatch chairs the Judiciary Committee chairman and is one of the key players here, and legend has it that his state is home to a few software companies. Let's hope that in his eagerness to watch out for the copyright concerns of Novell and the rest, he won't neglect those of Utah's families. Bring those e-books home, Senator. Don't just confine networked, copyrighted books to the library. Let children read them in the presence of Mom and Dad.
Usual reminder: The hyperlinks are mine, no one else's.
Attention copyright-policy fans: I'd love to hear the latest rumors about Bruce Lehman's hopes for a Department of Intellectual Property, should the Commerce Department fade away. Too, I'd welcome information on any efforts to use political donations to influence copyright policy. Email me at rothman@clark.net.-David H. Rothman
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By Mark Voorhees
At a recent copyright law conference, Terri Southwick, the ghost writer of the Administration's eagerly awaited "white paper" on intellectual property in an electronic environment, said she was starting to use the J-word to describe when it would be released.
Someone in the audience piped in, "Do you mean Joctober or Jovember?"
The joke was not lost on those in the creative, user, and online communities who anxiously await a report originally scheduled for release early in the year. "It may be yellow by the time it comes out," said a lawyer at a major trade association.
Industry's willingness to place bets on the future will turn on how securely and vigilantly their books, musical works, motion pictures, and other copyright works will be protected in the easy-to-copy/hard-to-detect electronic environment. Librarians and plugged-in consumers worry that they could actually lose ground if use of electronic works is precisely metered and there isn't the ability to browse.
These tensions are the focus of the report being written by Southwick, a top aide to Patent Commissioner Bruce Lehman, who is the chairman of the Administration's working group on intellectual property rights. The group consists of representatives from several agencies.
The broad outlines of the report have been known for some time. Many of the proposed changes to copyright law floated in last year's draft green paper, such as creation of a new "transmission right," will be scaled back. Further, it is unlikely that the report will recommend limiting the exposure of online service providers like CompuServe and America Online to bad deeds committed by their users. ("What do you mean? I shouldn't have scanned and uploaded that Playboy centerfold to my 15 best buddies?")
Yet the report is much more than a collection of its recommendations, which undoubtedly will be bended, spindled, and mutilated by Congress. It is a foundation document on which the debates between creators and consumers, and law and technology will be built. In that sense, the report's interpretations of law, reasoning, and structure are paramount.
Several members of the working group went along with the language in the green paper because it was a draft. Mary Beth Peters, register of copyrights, told a recent law gathering in Washington that members, when they expressed concerns last year, were told:"Don't worry about it. It's just a draft." (As a member of the legislative branch of government, Peters participates in the working group as an observer but does not have an official say.)
Now, they want to be heard--and it's not always easy.
Lehman, who considers himself the Administration's intellectual property point person, is keeping a tight wrap on the process of cobbling together the final report.
In recent weeks, a flurry of faxes of drafts of the final report has been broadcast from the patent office to the two dozen or so members of the working group, who offer their comments and fax them back. But there aren't any meetings or skull sessions among the group to hammer out the final report. "Lehman wants control of the process and control of the final paper," says an insider.
Southwick says that the report, which is about 200 pages including proposed legislation, would never get written by the full committee sitting down in a room. But, she added, with both the green paper and the white paper there has been ample opportunity for members to suggest changes. Each section has been circulated for comments for at least a week.
Others agree that Lehman is acting responsibly. "Maybe Lehman is a control freak, but he knows exactly what he's doing," says one of his supporters. "A group edit with federal officials is a horror show."
Even Lehman's detractors concede that his activism has raised the visibility of intellectual property in the national debate. The proof of that is in the pudding. Members of the working group have had three thick volumes of public comments to digest.
A spokesman for Lehman says that final sections of the report were being circulated yesterday and today. He emphasized that the commissioner has tried to run a open and deliberative process. "We are at the point of the process where these sorts of comments are being dealt with," the spokesman said. "It's been an extremely open process."
The target date for release of the report is now mid-June, the spokesman added.
There are at least two views within the working group that were not fully explored in the draft. The first concerns the draft report's fixation on copyright protection as the be-all and end-all of the solution. A copyright lawyer by training, Lehman understandably focuses on what he knows best. Thus, the draft report read like a copyright primer and its recommendations focused on tinkering with copyright law.
There was little ado about plenty of the alternative tools and mechanisms that could help protect works as they travel from place to place. The draft report, for example, glossed over the capacity of encryption to seal and protect works and meter their usage. Nor did it give as much weight to the rich possibilities of many-to-many electronic communications, as some members of the group would have preferred.
The draft's major technological recommendation generated wild passions among the engineering, fair use, and user communities. That recommendation was a prohibition of devices that defeat copy protection mechanisms. Critics see this proposal as a close cousin to the minority view in the 1984 Supreme Court case, Sony v. Universal Studios, which would have found the makers of videocassette recorders to be liable for copyright infringement, and as a reversal of the Vault v. Quaid Software decision, a 1988 Fifth Circuit case.
One lawyer who knows Lehman says the patent commissioner has an unduly harsh fear of the dangers of technology, such as rampant infringement, without a corresponding appreciation for its upside.
The final report will likely deal in greater detail with these technological issues, Southwick said. She declined to reveal what the report would say precisely. "It hasn't been cleared," she said.
The second difference of opinion concerns the decidedly pro-proprietor orientation of the draft report. This has distressed those members of the working group who see copyright law as a delicate balance between the public and publishers.
Fair use, for example, is relegated in the draft to something of concern only to the library and academic communities but of little relevance in the real world. There is little mention of the role that fair use may play in allowing users to browse or sample works before deciding whether they want to buy.
(The final report is unlikely to make any sweeping recommendations on fair use since those issues are now being worked on by an ongoing conference of creators, users, and academics that is being overseen by the patent office. But there's likely to be more than the passing reference in the draft report.)
Discussion of court cases in the draft also seems filtered through the lenses of a copyright owner rather than users. There was one phrase, in particular, that irked many: "It has long been clear under U.S. law that the placement of a work into a computer's memory amounts to a reproduction of that work." In fact, that is a recent and controversial aspect of U.S. law.
One reality of government (or any group dynamic, for that matter) is that people want to get their hands dirty at the end of the day, not the beginning. In other words, it's more difficult for Lehman to keep control today than it was yesterday. Lehman's "power is based on knowledge," says a lawyer who is in touch with him. "But it decreases as more and more people come out of the woodwork."
Between now and whenever the report is finally released, the woodwork will be crawling. If the white paper follows the path of its predecessor, it will pass from the working group to the Information Policy Committee, the group's parent within the Administration's Information Infrastructure Task Force, and then the task force itself. Finally, it will go through OMB clearance. Southwick said she was uncertain whether the report would be follow the same routine.
The clearance process is the last chance for opponents both inside and outside of government to throw darts before the final release of the report. "There will not be as much deference as some people think," says one lawyer who actively followed the working group's deliberations.
CODA
An old story too good to ignore: The draft green paper was delayed last year partly because the laptop computer holding the only copy was stolen in a break-in at the patent office, according to a patent-office insider.
(c) 1995 Mark Voorhees. Unauthorized duplication prohibited by law. Reproduced here by permission. (Thanks, Mark!)
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