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TechTalk Transcript
 Judith Boettcher [JB] |
 Howard Strauss [HS] |
 Laura Gasaway [LG] |
Digital Millennium Copyright Act
October 7, 1999
[Audio]
|
Judith Boettcher [JB] |
Howard Strauss [HS] |
Laura Gasaway [LG] |
Digital Millennium Copyright Act
October 7, 1999
[Audio]
|
[Top of Page] JB: Welcome to the CREN TechTalk series for Fall of 1999 and to this session on the Digital Millennium Copyright Act, often known as DMCA. This session is partially supported by Compaq's Higher Education Group. You are here because it's time to discuss the core technologies in your future. This is Judith Boettcher, your CREN host for today, and I'm pleased to welcome the technology anchor for TechTalk, Howard Strauss of Princeton. Princeton -- I'm sorry -- Howard is a well-known Web and all-around information technology expert. I was almost not going to say that, Howard, which is why I ended up tripping here. HS: That's okay. It's in the archive anyway. JB: I know! Well, I thought everyone probably knew that about you already, so at any rate -- but welcome, Howard, to today's session. HS: Thank you, Judith. I'm Howard Strauss, the technology anchor for the TechTalk series of technology Webcasts. As technology anchor, my job is to engage our guest expert in a lively technical dialogue that will answer the questions you'd like answered -- and ask those very important follow-up questions. You can ask our guest expert, Laura Gasaway (whom most people call Lolly) your own questions by sending e-mail to expert@cren.net anytime during this Webcast. If we don't get to your question during the Webcast, we'll provide an answer in the Webcast archive. For the second time in this TechTalk series of seminars, our guest expert is a lawyer instead of our more usual computer systems guru. Despite our best attempts to do our most creative technical work without any interference from the realities of the outside world, increasingly we find we must deal with accountants who give us tighter budgets, bureaucrats who give us zillions of forms to fill out and lawyers, who insist we know and obey the law. Increasingly, the laws we need to know rival in complexity our NT or enterprise-wide distributed dynamic online transaction object-oriented applications and systems. One law that is of particular interest to colleges and universities is the copyright law. Not long ago, when nearly all information was in books, journals, manuscripts and other printed formats, the only modern invention we needed to fear was the office copier. Of course, the copier is often used legally to make fair-use excerpts of text, but sometimes it was used in violation of authors' rights. Still, copying an entire book with a copier was a slow process that was actually quite expensive and inconvenient, and the copies were always of much poorer quality than the originals. Today, all that has changed. The Internet, the World Wide Web, digital transmission, distance education, CD-ROMs and a host of other digital electronic formats have made it possible to make zillions of copies of complete works from the four corners of the earth that are indistinguishable from the originals. And almost everyone can do this quickly and at very little cost, in the privacy of their own homes or offices. In October of last year, after five years of planning, the 1976 Copyright Law was amended to account for these dramatic changes in technology. The amendment is called the Digital Millennium Copyright Act and is today's topic for discussion. Chances are, you didn't even know this law existed. I certainly didn't, and surely you didn't know about the Sonny Bono Copyright Term Extension Act that was part of it. Yet the Digital Millennium Copyright Act affects every one of us every time we build a Web page, put something online, teach a course that uses any digital media, show a movie to any group at a university, repair a computer or engage in almost any activity involving digital or analog information. I promise not to read you the entire text of the act, which would take us far into tonight, nor will I suggest you read it as a prerequisite for listening to this Webcast. But we will try to give you an overview of how this act changes copyright law and what you can and can't legally do. Keep in mind as you listen that this law affects every student, faculty and staff member on and off your campus and that ignorance of the law is no excuse. So for about the next 45 minutes, pull yourself away from designing your new Web application integration server porta. In that short time, we'll try to tell you enough about the Digital Millennium Copyright Act to keep the long arm of the law a long way away from you on today's edition of TechTalk. Judith? JB: Well, thank you so much, Howard. As we know, the deeper we do get into IT, the more impact legal and copyright issues have for us. And so we're very fortunate today to have Laura (or as you mentioned, Lolly, as she is more popularly known) as an expert on the issues of intellectual property within higher education with us today. Lolly is the director of the Law Library and professor of Law at the University of North Carolina at Chapel Hill. Lolly, thanks so much for being here and welcome. LG: Thank you so much for having me. This is an exciting thing to do -- and get to use the new technology in doing it, so I'm glad to be here. JB: Well, thank you. HS: Lolly, maybe you can start by explaining us what the Digital Millennium Copyright Act is. I understand it's not a complete rewrite of the Copyright Law, but just an amendment to it. LG: That's correct, Howard, and I think many people have really been sort of fooled because it has the name "Act," thinking that it totally replaced the Copyright Act of 1976. But it did not. As you said, it is an amendment. One of the things it tries to do was to bring the United States into compliance with various intellectual property treaties. And it also deals with some issues that perhaps are not so clear in the digital world. It was set out to kind of preserve the rights of owners, but also to recognize that "fair use" exists in the digital environment. It was signed October 28 and became effective immediately. Often there is a little period in which it's not yet effective, when you get an Act and you have a little time to think about compliance, but this is one that we just jumped into all at once because it was effective immediately. HS: So it applies to all of us right now. In fact, you're saying it's applied to all of us for a year already. LG: It already has -- just a few days short of a year, that's correct. HS: Hmm. Could you talk about the main areas that the new Act covers? What's new in here? LG: Sure. The new areas are two real specific ones. It adds a section on Online Service Provider liability. HS: Okay, that's -- these Online Service Providers are what I think a lot of our listeners call ISPs. LG: That's right. HS: Okay. So folks, when you hear OSP, we really mean ISP. LG: And I'm not quite sure why Congress adopted this broader term -- or maybe it's a more narrow term, but anyway, they liked OSP better. So it added a provision to the Act that deals with whether an OSP is liable when the user of a system infringes copyright, so that the OSP maybe would be either contributorily or vicariously liable. It also -- HS: Could we just -- one thing about this OSP question that I was surprised about when we chatted about it, and I think we ought to make the point to folks tuned in here. And that is that, as I understand it, if your university provides online service, you are the OSP. LG: Absolutely. HS: So every campus that does -- provides Internet access really has an OSP buried in the basement of some building. LG: Exactly, if you provide e-mail services, Internet services, host Websites -- you know, all of that kind of activity. And what's been interesting is that there are also many public and private elementary and high schools who are now OSPs and certainly never considered themselves to be. I think universities maybe thought we might be, but the whole K-12 issue has been one that's been a big shock to those folks -- that they are OSPs. JB: Well, actually, I'm surprised to hear you say that as well, Lolly, because I had really thought it was only those folks that were really providing access to the network who were considered OSPs. But you mentioned providing Websites and just a host of -- LG: Not just providing Websites but hosting them on the server. JB: Okay, all right. HS: So if somebody owns a server that has anything on it except their own stuff, that's an OSP? LG: Then they will be an OSP, yeah. It's not absolutely positive, but they may well be. HS: Okay, and so all these rules -- all these rules that sound like they only apply to America Online -- LG: Right. HS: -- actually apply to all kind of folks. LG: Much broader, much broader than America Online and the other commercial Internet providers. JB: Hmm! Okay. LG: Yeah. JB: Wow! LG: The other two major provisions, and maybe we can even group those together, is there is a provision called Anti-Circumvention which talks about and creates liability if a copyright holder has implemented any kind of technological device that controls either access or the ability to copy their work. And interfering with that will be infringement. And then as a sort of corollary or second part of that. It's called Copyright Management Information or CMI, and this is in a way a technological device, but it's -- we usually think of it more as digital watermarking or something of that nature. And if you remove that information from a work, then there is liability. So those are the major new things that were added, but there are also many areas in which there are just simply changes that have been added by this new amendment. HS: How does this new amendment affect libraries? Is there some specific stuff in there? LG: Oh, yes, yes, very definitely. Libraries, you know, have their own section of the Act, Section 108, which is referred to as the Library Exemption. HS: Listeners should beware. There may be a quiz at the end! That was Section 108? JB: And that was Section 108 he said -- HS: Put that in your notes. LG: Yeah, lawyers always speak in these sections. But I wanted you to realize that there really is like a separate section of the Act that really applies to libraries and archives. And there were changes made in a couple of sections real specifically -- and one sort of minor one, but two real specifically that added in the ability for libraries to make digital copies of works under certain circumstances when the purpose is either preservation of an unpublished work or when it is to replace a lost, damaged, stolen, deteriorating or obsolete work after the library first tries to buy a copy in this new format. HS: This preservation thing, if you could just say a few more words about that. LG: Sure. HS: I mean, once we preserve something, doesn't that mean -- or does it mean that we can circulate it then? LG: You know, there's something very peculiar in the DMCA. For example, let's just deal with the unpublished works. That's a separate subsection. So now we're talking about manuscripts, unpublished photographs, that sort of thing. And the Act says now that a library may make up to three copies of a work, but if the copy is digital, that digital copy may not be used outside the premises of the library. JB: Meaning the physical premises? LG: Yeah. I mean, it doesn't ever say so, but premises really means physical, really means building. JB: Yeah. LG: Doesn't even mean campus. And this is very odd because one of the benefits of the digital world is we're no longer place-bound, and all of a sudden we have this premises-idea inserted. Now, what a library could do is -- say you have a manuscript that you need to preserve. You can make a digital copy, and that cannot circulate and could be put on the network that's only accessible within the building. But you could also print a copy. Now you've made two of the three, and that printed copy could circulate. JB: But then you can only have one printed copy circulating? Except, does that go into the "fair use" -- making a copy for patrons? LG: It says you may make up to three copies for preservation and one of them -- you would want one to be digital because that's your sort of long term, but you could make up to two print copies. Now, this is not for the user. This is for the library to maintain in its collection. JB: Okay. LG: So that what you would loan would be this reproduction as opposed to the original manuscript. HS: You said when we talked before that the Act was going to address in some way, I believe, something to do with distance learning. Could you talk about the Act's relationship to distance learning? LG: Sure. We were very hopeful that there would be some addressing of distance learning because the existing Copyright Act is very restrictive when it comes to transmitting copyrighted works for any kind of distance learning. When you have face-to-face teaching in a classroom, the Act is very broad, you know, and allows the performance or display of any work as long as it's a part of instruction and not for entertainment. But for distance learning, the Act says that only non-dramatic literary and musical works may be performed. You can still display any work, but only non-dramatic literary and musical works. So this eliminates any audiovisual work. It eliminates musical comedy, opera and any drama. HS: So distance learning is going to be kind of dry. LG: Yes, going to be very dry. And you know, it's really counter-intuitive to a teacher to tell them, "Well, for your face-to-face students, you can show this videotape, but as soon as you have students located at a distance who are seeing it on videotape or, you know, live over the Web or whatever, all of a sudden you can't transmit this audiovisual work without payment of a license." And we are seeing some very high fees quoted for licenses. JB: Now, Lolly, you were saying you were very hopeful that this Act would address some of these use restrictions -- LG: Yes. JB: But that sounds like maybe that didn't happen. LG: Well, it has a strange provision in it that calls for the Register of Copyright to conduct a study on distance learning and to produce the report within six months. And indeed, the Register of Copyright did do this. She didn't quite make the six months, but she made seven months, which I think is a pretty amazing -- HS: Oh, for the government, that is so close! JB: That is wonderful! LG: Especially considering that this was from October 28 until the end of May when the very comprehensive study was conducted, and that dealt with the holidays and, you know, all of that sort of stuff. So what the Act had called for -- the DMCA had called for -- was this comprehensive study that would consult content providers, it would consult librarians and educators and it would look at technology issues. And the Act specified a long list of issues that the Copyright Office was to address. Things like:
HS: But does it have the force of law, since it's just a report? LG: Oh, no, no, no! No, this was just a report to Congress! HS: So this is somebody saying, "Here's some interesting things that we're discussing"? LG: Right. And here's some recommendations. And the Register does recommend that the law be amended to expand the categories to include dramatic literary, musical and audiovisual works; that we would remove those restrictions on the place of instruction; that we would retain this nonprofit educational institution or government-body restriction because the Copyright Act simply recognizes there is a difference in for-profit and nonprofit educational institutions. (There never were too many for-profit until distance learning, by the way.) JB: That's true. LG: Yeah. And another recommendation is that coverage be expanded to meet the technological necessity so that, you know, when you have to make a digital copy in order to transmit it, that that's just considered an incidental copy and that it not be problematic. On the other hand, the educational institution (under the Register's recommendations) would also have some responsibilities like applying measures against unauthorized access and working to stop downstream copying and to educate the campus community about copyright. Now, that is showing up several places. There was a hearing held in June of 1999 before the House Subcommittee on Intellectual Property -- really looking at whether it was time to amend the law. Nothing really has come of that yet, but I think the education community is very hopeful that there will be changes in the law. The content providers, specifically the Association of American Publishers and the Motion Picture Association of America, testified that they thought everything was working fine, the licenses were fine, you know -- it was a smooth-running system despite all the evidence we can bring to the contrary. HS: Going back to the OSP issue, could you talk a little bit about what the obligations of universities are with respect to OSPs in this Act? What does the Act say that OSPs have to do, can't do? LG: Sure! Now, this is going to take a little bit to do because this a long provision in the Act. HS: But of course, you'll give us the Executive Summary. LG: Oh, absolutely, but I bet even the Executive Summary will be kind of long. What the Act is looking to do is to exempt OSPs that simply act as a passive conduit, and create safe harbors for those folks so that when an individual uses the system and infringes copyright, the individual will incur liability but the OSP will not. But it has several things it has to do in order to escape liability. HS: But these individuals -- we're imagining these individuals are students, faculty and staff. LG: Right. HS: Right? LG: Right. HS: Okay, but the people who are doing the OSP stuff themselves, I mean, some of those folks are going to put stuff out there, right? I mean, like, here at Princeton, we provide service but we also have a central Website, so a lot of the same people who are providing the service also are putting out the university Web pages and things. LG: Okay. Let me -- HS: So they're really acting in two roles. LG: They're acting in two roles, but it's not the technology staff that provides the service who's considered the OSP. It is the university itself. JB: So these are responsibilities on behalf of the institution itself. LG: Of the institution itself. That's -- HS: Can I just hop around a little, now that you've brought that up? LG: Sure. HS: Is it true that then it's the university that's liable, no matter what happens? I mean, if the student or faculty or staff violates this act, who's liable? The student, faculty or staff member, or the university, or both, or it depends? You're going to -- LG: Let's take the lawyer's tack: It depends. For the university to escape being liable, it must have policies that say it will terminate users. I always like that. I think it means terminate users' privileges who violate -- HS: It's like when airplanes land and they talk about your final destination. I always feel it's not my final destination. LG: You hope! JB: Okay. LG: They don't have a responsibility to monitor or affirmatively access what's going on, but they must not know that the material is infringing that's passing through the system or get a financial benefit from it. And then there's a little safe harbor in there for system caching that's necessary for the system. And then, the next statement in the Act says, well, okay, given all that, then the OSP is exempted if it's just transmitting and it doesn't initiate or direct the material, it doesn't select the material that's sent, it doesn't select the recipients. (It's really the user that's doing all of that.) And it doesn't copy material or keep it for longer than is necessary, and it doesn't modify the content of the material that's transmitted. Now we get to your question about whether the institution or the individual might be liable. There is an exemption in there for nonprofit educational institutions, but I find it a little bit amusing.
It begins by saying that faculty members and graduate students who are teaching and researching are not considered to be the institution, and their knowledge is not considered to be the institution if their infringing activities don't involve putting online or creating online access to instructional materials that were recommended or required within the preceding three years. So in other words, what they're putting on their Website is just extraneous stuff -- it doesn't relate to teaching. But if you require it or assign it, then it falls outside of this exemption where faculty would not be considered to be the university. Two more requirements dealing with faculty and grad students: then the institution has not received more than two notices of claimed infringement by these individuals -- I hope a court would interpret that two valid claims -- and then the institution provides all users of the system or network materials that accurately describe copyright and promote compliance. So we don't have an absolute exemption for faculty, even in their teaching roles. In addition, first thing in order to take advantage of this OSP liability exemption is the OSP must identify an agent to receive complaints from copyright holders. And the Act does not tell us who that needs to be and I -- HS: Who is it typically, on campuses? I mean, I don't know if we have one here. LG: Okay, it's typically -- HS: I know probably after this Webcast I'm going to be called by the person who it is and they're going to tell me it is them. LG: "It's me!" JB: And then you'll know, right? HS: Then I'll know. But otherwise, I'm not sure I know. LG: Right. It really simply has to be someone to receive and process complaints -- maybe getting them out to the right person. It varies. I know some institutions where it is the head of Computer Security. I know some where it's someone in the legal department, in the Office of Legal Counsel, and some where it's someone in the library who is receiving the complaint. HS: And what's the university's obligation to let people know who this is? Because for example, I'm not sure who it is here. LG: Right. And the Act says, actually, that first of all, you have to register the person with the Copyright Office and they, on their Website, have a list of all of these agents. JB: Aha! So we could actually go the Copyright Office Website perhaps. LG: Yes. Yes, and look there. HS: We could? So I could find out who our agent is by going to the Copyright Office URL? LG: Yes. But it -- HS: I'll be astonished. LG: Right. Well, I mean, if they're registered, it'll be there. But here's the other thing is, it also says in addition to registering and putting it on the Copyright Office, that the Copyright Office will put it there, you as the institution are supposed to put it on the institutional homepage so that someone can find it. HS: So it's going to identify the person as the person you would report copyright violations to? LG: That's right. Now, you might not have to identify them as an individual, but there might be an e-mail address that says, you know, complaints@princeton.edu or something like that, rather than naming a human being. It could do that on the page. JB: Okay. But that's the responsibility of the institution, then? LG: That's the responsibility of the institution. HS: Okay, I think that you mentioned that earlier in the week, and so I went out and I started looking at homepages of universities. LG: And you didn't find it. HS: But perhaps I was just looking at the wrong university. LG: No! HS: But the ones I was looking at seemed not to have anything that I could identify, so that means that these folks are not taking advantage of the OSP liability exemption. LG: Well, it means that they haven't met one of the requirements in order to do it. They may think they're taking advantage of it. I actually talked to our agent today because we looked at the UNC homepage and found the same thing. HS: That you're not in compliance with that particular -- LG: No, we weren't. Now, it is on the homepage, but you would have to know that it is someone in the Office of Computer Security and go to the Security homepages. HS: But it sounded like you were saying the law requires that the name of the person be there. LG: Well, but how would you even know to go to the Security homepages? I think it needs to be on the first or second page of the university pages, you know, so that it's open and obvious as to who it is. And that's really a regulation from the Copyright Office that does that. JB: And we may want to go on, then. Once an institution has an agent identified, then -- LG: What happens then? JB: What happens then? What's the response? What does that agent actually do? LG: Okay, then a copyright holder contacts the agent and says, "Okay, we've noticed that on one of the Websites that your institution is hosting, there's a full copy of the new Star Wars movie." JB: Um-hum, okay. LG: And so then, the responsibility is to do what's called -- you've gotten the notice, now you have take it down. And there are two things you can do. You can either investigate immediately so that you determine (you as a university) whether it's a "fair use" or not -- and I mean really immediately -- or you take it down and then do the investigation. HS: Okay. Betty Layden at Duke University has a question that relates to just what we're talking about right now. I think we actually answered a good part of her question, but the rest of her question talks about the fact that if you really decide to take down a user's access to the Web because they put something bad up, for a lot of students who need to use the Web for a course, they're out of the course. They might even be out of the university because using computers today is such an important requirement. How do we deal with that? LG: Well, that's true. Now, it doesn't say you have to take down their access. You just take down the pages that are infringing. So if a student has a personal Website, and on it they happen to have copyrighted music, you just take down the copyrighted music part. So you don't necessarily have to deny them complete access upon the first complaint. But I think as universities, we're going to be developing some policies that will say, you know, "first offense this, etc." I remain very concerned about denying Internet access, because as more of our courses have some sort of computer and Web-based component, that just won't work to completely deny that to students. I've also heard some instances of, you know, where just like any other sort of Honor Code violation, students might have to do community service and go around to all the dormitories and talk about copyright infringement and "look what I did" and "I'm sorry, I'm sorry, and don't let this happen to you." That sort of thing. HS: And we would be obligated to do this if the owner of the copyrighted material complained to this agent that we have identified on our homepage. LG: That's right. HS: That's how that process should work. LG: That's how that works. Now, who does the investigation is not necessarily that agent. You know, the agent may or may not do the investigation. The agent may just receive complaints. HS: How does the agent determine that, in fact, this is a valid complaint? Because obviously, there could be complaints that aren't valid. LG: Certainly. Well, they're going to have to use the Office of Legal Counsel for some of it, clearly. But suppose it is a full copy of the new Star Wars movie. HS: Okay, yeah. LG: We'd know that's infringement, right? HS: But so in terms of student, faculty and staff putting stuff out there on the Web, what kind of copyright clearance should they be doing, or should the university be helping them do. LG: Well, they should be getting permission. But let me tell you that an awful lot of copyright holders simply say no when you seek permission to do that. They simply are going to say no. They do not want their work scanned and put on the Web. Of course, I think we can help by password-protecting course Websites, for example, so that they're not on the World Wide Web. They're really very limited as to who can get access to them. But some copyright holders are asking for considerable royalties and some are just simply denying the right to put it there. HS: Is there any rule about having a link to something rather than the thing itself? So if I have a link on my Web page that points to some proprietary site that anybody could get to, does that violate anybody's rights? LG: No, the good news is that it really doesn't. You'd like -- you hope that where you're pointing to is not an infringing site. On the other hand, most of us who are doing this are going to be trying to point to ones that we can trust and we feel are good and accurate sites. And that's really like a cross-reference. HS: But suppose, for example, to give you almost a real example -- LG: Okay. HS: I'm just, you know, hiding the names of people here so that we don't get any prosecutions. But suppose we discovered somewhere on the Web a calculator that calculated home mortgages and things like that as part of a large Website and what we did is we were building a site and we thought, "Boy, it would be really nice to have such a thing" but we knew it was illegal to steal it. But we built a link that pointed to just that little part of a Website, which you can often do. LG: Sure. HS: I mean, sounds like we're getting the use of that little thing that somebody built without them, you know, looking at the rest of the Website. LG: That's right. HS: But that's completely legal? LG: That is, right today, completely legal. There are sites that say, "If you want to link to us, please link to our first page," and, you know, that's just sort of courtesy that you would do that. HS: But no legal requirement to do that? LG: No legal requirement to do it. The reason is, the site that has the calculator has the total control. They can password protect that sucker so you can't get to it. So it's like putting out a public broadcast and then saying, "But we don't want these six people to listen to it." You know? So if you've got it out there, doesn't mean copy it, but linking to it is not much of a difficulty. HS: Okay, we have another question in from the Hunter Law Library from Laurie Uriquiaga, and Laurie is asking, "What about digital copies of digital works in a different format? For example, the original is a floppy and the copy is made into a CD-ROM. Is there a limitation on circulating the duplicate of the original, if the original has been lost or destroyed?" LG: You're asking the very question that has puzzled me so much in this library preservation piece, and I sort of got sidetracked and forgot to say that. I think what Congress meant, although there's no legislative history so we're not really sure, but I think what Congress really meant was when you make a digital copy of an existing work, that you shouldn't put in on a network, but that's not what they said. They said you can't circulate a digital copy. And so when the original work is a CD and it's lost or damaged, you've tried to buy it, it's no longer available, you've done all the things that the Act requires and you now duplicate the CD, should you be able to loan it? Common sense says yes, because the original work was digital in format and was something that we loaned, but the exact words of the Act say if one of those copies is in digital format, no. What would I do in my library? I'd loan it. I'd loan it, because I really think what they were talking about was putting it on a Website so that it's accessible from all over the world. HS: The Act is called the Digital Millennium Copyright Act, and yet there's still lots of stuff -- though I guess some people won't believe it -- there's still lots of stuff around that's in analog format. LG: You bet! HS: Does this Act provide the same provisions for analog recordings, analog media, that it does for digital media? LG: It does. And it doesn't even really mention it, but the library sections are a good place to look at that because it really says, you know, replacing a lost, damaged, stolen or deteriorating work -- whether that work is analog, print, video, whatever -- and when you try to buy the replacement and it's not available at a fair price, then one of the options is to make a copy of it and you can make that a digital copy. So it's looking at digital but it's also covering analog work. JB: All right, in this moment, I would like to remind all of our participants that they may send questions in to Lolly at expert@cren.net. Okay. HS: Lolly, a lot of the stuff that's done in universities is international in nature. LG: Yes. HS: Stuff freely -- especially on the Internet -- moves across international borders. Does this Copyright Law -- it seems like it obviously doesn't apply to folks in France or Britain or whatever. How do we get control of this thing internationally? LG: Well, actually, what has happened over the past 25 years or so is that copyright law has become more international. And when I say that, I don't mean that we have, you know, like the United Nations promulgating the law. But what we have are a series of treaties that the majority, the huge majority of the countries in the world have signed onto. And one of the things they do is offer reciprocal treatment, you know, that we will treat works from France just like we treat our own works, and France will treat works from the United States just like they treat their works. And indeed, we sort of have these minimum levels of protection that have become very much the same, very much. HS: So if one of our students, faculty, staff, whatever, takes something from a Website that originated in Britain or France or whatever, one should assume that it's going to be treated as though the Digital Millennium Copyright Act applies to it. LG: Yes, that's the safest thing. Just make that assumption. One thing we should look at a little bit, though, is that the term of copyright was life plus 50 in Europe long before it was life plus 50 here. We only added that with the 1976 Act and then, on October 27, with the Copyright Term Extension Act, it went to life -- HS: That was the Sonny Bono Copyright Extension. LG: The Sonny Bono Act, right, that's life plus 70. And that -- it had also gone to that in Europe a few years ago. So they are sort of running a little bit ahead of us in extending these terms of protection, so that's the only thing to be a little concerned about. There's also another treaty provision. We had, when our terms was life plus 50 and theirs was life plus 70 -- you know, what could have happened is that we would have said, "Okay, well, in this country, this particular work would now be in the public domain because it's 50 years after the author's death," and part of our treaty obligations say we had to restore the copyright in those foreign works so that it complied with the term that existed in the foreign country. It won't be much of a problem in a few years. It was just sort of this little hiatus and which we were trying to adopt the life plus 70. HS: And that copyright thing, was that ever renewable? LG: It was, but only under the 1909 Act. Copyright renewal was 28 years plus a renewable term of 28 years under the 1909 Act. When the 1976 Act was passed, and beginning then at its effective date of January 1 of '78, there was only term and no more renewals for new works. But for works that were still under the old Act, there were renewals. But in 1992, Congress passed an amendment that said no longer do you have to renew copyright, and so for works that were published between 1964 and 1977, they got an automatic term extension and they gave them an additional 47 years, which made a total of 75. Now, with Sonny Bono's Term Extension Act, we added another 20 years, so they get a total of 95 years from date of first publication. HS: Okay, we have another question in from Bob Kowal at Ohio State University talking about safe havens. He says, "When we reviewed the ISP" -- of course, he means OSP. Bob, haven't you been listening? He says, "When we reviewed the OSP safe haven issue with legal counsel, it did not appear that it was advantageous for us to use this mechanism. Can you briefly talk about why it would or wouldn't make sense?" LG: You know, institutions are making their own decisions on this. Many of us really believe that it is advantageous and others thought -- well, you know, the main thing that's happened here are these course-related things from faculty, and there's no exemption for those. So some people have made the other assumption. You know, I think it's just a risk assessment and it doesn't mean there's a right and a wrong. But it does mean that institutions at least need to make a decision. Don't let it just happen that you're not taking advantage of it because you didn't file and list your agent. But I know my institution certainly decided that it was advantageous because as long as we were in that passive situation, especially with students, we were not liable as long as we -- once we got a complaint and investigated, we would take down their material if we found it to be infringing. (By the way, if when we investigate, we find that it's not infringing, we can return it to the Web.) HS: Is the problem really that, although the penalties aren't very bad, that it's a matter of bad publicity for the university? LG: It certainly is a matter of bad publicity. But there's another thing I'm worried about and that is that we may drown in complaints. And when that begins to happen -- and, you know, there has to be a lot of investigations going on -- the answer may be let's just take it down. Let's not even investigate. And we will give up a lot of "fair use" if that happens. I hope it doesn't happen, but, you know, we have to be realistic at that time. HS: What are the penalties? LG: Well, the penalties are a little bit odd. They're not the normal copyright remedies. There were new remedies that were added in just for the Digital Millennium Copyright Act and for especially these two provisions that deal with Online Service Provider liability, etc. And what they have done is to adopt a kind of damage, it's actual damages basically, but that comes more from the Patent Act and from the Trademark Act, which also says if you've got willful violations, you can even get up to treble damages, which means three times the actual damages. And there are criminal provisions, and the criminal provisions say if you've got willful infringement for commercial advantage or private financial gain, you can be fined a half million dollars and up to five years in Federal prison for the first offense. And then for subsequent offenses up to a million dollars in fine and not more than ten years in jail. I'll tell you something that I find really amusing. There is an exemption for nonprofit libraries, archives and educational institutions which says that the jail term and fine shall not apply to a nonprofit library, archives or educational institution. It doesn't say librarian or education, it says the school won't go to jail. LG: How do you feel about that? You're head of the Law Library, right? LG: Right. So, yeah, individuals might be liable but the school won't be hauled off to Federal prison. We weren't too worried about that, I don't think. JB: We've talked, then, about the institutions' responsibilities in the OSP arena and we've also talked a bit about faculty responsibilities in the areas of instruction. Lolly, if you were going to bottom-line some of this stuff, are there some easy, practical advice that you would give to faculty? LG: Yes. I mean, I think there is and maybe to universities generally. But just whether you're going to take advantage of the OSP liability or any of that, you know, things are changing a great deal. And because we are so much more aware, perhaps, now about copyright because of the digital environment, then universities need to really do a better job about educating their communities -- students and faculty and staff -- and developing some policies. And then when faculty do their best to follow those policies or staff, they need to stand behind the faculty member and support them, you know, when what the faculty member has done is a "fair use". And we believe it's a "fair use", and not just cave in. I think sometimes it's tempting for university attorneys to say, "When in doubt, seek permission," but once you seek permission, you've given up "fair use". you know? It's no longer -- you know, this whole goodie about "fair use" is you don't have to seek permission. So I think we need to be, you know, cognizant that I think as educators, we want to push the envelope. I don't mean infringe, but take full advantage of what's available to us. HS: Lolly, looking at the law, from your point of view, are there things that they missed? Are there things that you'd like to see added to the thing, or things in there that you think don't belong there? LG: I definitely would like to see the distance learning changes. I think this is a huge need. Distance educators and those of us who do some of both are really just begging for help in this area. And we have some powerful folks in Congress who are interested in this, you know. For example, the western governors, and so the senators -- HS: Like the big virtual university in the west. LG: Right, and so those senators from those western states. In the House side, you know, we have some -- Boucher from Virginia who's from a part of rural Virginia that's doing a lot of distance learning. And these folks need to really help us because, you know, we look at this and say, "This is the future of education and the distance learning situation and an online course is the modern equivalent of face-to-face teaching." And in fact, I think as technology progresses, we'll do more than we do now with the little tiny cameras so we are face-to-face but at a distance, And so that, to me, is the major thing that needs to be fixed. I would also like in that library section for us to get clear the question that came in. When the work that needs to be preserved was already a digital work, if we could loan that original digital work, why can't we loan the copy that we've made of it?
And I think there are a few little things like that. But I don't see other major changes that I think are needed right away. Although there is one that will be coming down the pike, and that is database legislation. There was a provision that was embodied in the DMCA that got taken out at the last minute because of lack of agreement on it, and that was to protect databases outside of the Copyright Act -- basically, to protect them as an article of commerce, for example. And there are two bills pending in the house, HR 354 and HR 1858. The first one, 354, is from the House Intellectual Property Subcommittee, and that bill has passed the subcommittee. The HR 1858 is coming from the Commerce Committee and it has passed the full Commerce Committee. So what we have is a turf war in the House over who's going to be dealing with this sort of commerce issue when it involves a database. HS: The House is fighting over database provisions? LG: Yes! HS: That's great. That's much better than the normal stuff I hear about the House fighting over. LG: That's right. But I suspect in the next year, if we don't get it before the elections, we will get it soon after because the big database providers are hot after this, you know -- protection of databases whether they are copyrightable or not. JB: There was kind of a chink in the application of that law, wasn't there, that there was a ruling that -- well, I shouldn't even try to begin to talk about it, Lolly, why don't you mention that? LG: Okay, the case was Feist vs. Rural Telephone which is the case that dealt with white pages of the phone book. And of course, that's a database that could be in print or maybe it's an electronic version. And the court, the Supreme Court said (the US Supreme Court) that there are factual compilations like the phone book which fail to meet the constitutional requirement of originality, which has embodied in it at least a little bit of creativity. Because when you've got a factual compilation arranged in a very straightforward alphabetical fashion, it just doesn't meet that creativity standard, even though it's a low standard. It doesn't meet it. JB: Um-hum. LG: And so there are databases which are purely factual compilations that may be running into difficulty. And you know, you can be real creative with the phone book, but if you get too creative, then it's not useful. JB: Right. Let's see, we have one other question that is coming in from the University of Portland. David Lowell, and he mentions that -- has a question regarding the "fair use" guidelines that were, as he mentioned, circulating a few years ago that provided a very specific percentage or time limits in different media. Something like ten percent or three minutes or whatever. And so he has a question about are these included in the new statute, and are they eliminated if one uses a secure network? LG: The aspects of using them on a secure network -- no, they're not eliminated, but the guidelines are not part of the Act and they have not been generally accepted. They were developed as a part of the CONFU process, which was the Conference on Fair Use. They sort of had a joint development, CONFU plus the CCUMC, the Coalition of College and University Media Centers. And they were negotiated guidelines that had all of these portion and time limitations. And the copyright holders agreed to the guidelines. The major universities and library associations said, "We do not agree to these. We think they are far too restrictive and we believe you ought to just be applying 'fair use'." These portion limitations, by the fact that all the content providers agreed to them, ought to be telling you something about how restrictive they are. And so they've never been generally adopted, although sometimes the Media Center of a university signed on. But they were certainly not signed onto by anyone who had the authority to commit the university, like the president. HS: Wouldn't it be good to have "fair use" guidelines that are not guidelines, but have the force of law, so people would actually know what to do? LG: Well, it might be, but you see, the trouble with "fair use" is the answer is always "It depends," because the courts are directed in Section 107 to look at four factors in making the determination, and they sort of weigh the different factors. s And for example, a portion limitation would talk about one factor. But what portion is fair might depend on the other three factors, so there's not a bright-line rule that can be easily applied. And yes, it would be easy if we had those. On the other hand, it would be the strictest it could be, you know, rather than more liberal or more looking at all the circumstances. and I think those of us who are educators really prefer that we have, you know, some models of good practice, something like that, rather than guidelines that get converted in people's minds to law. JB: So in other words, are we saying that perhaps the ambiguity is better for "fair use" at this time? LG: Absolutely. And a lot of folks don't like to live with ambiguity. Those of us who are lawyers live with it every day and we like gray areas! HS: Well, because it keeps you in business! Right? It'd be like programmers without bugs. What would we do? LG: Or students busy, anyway. Yeah. JB: Well, Howard, I see that our time by my atomic clock connection here to the network has about, you know, managed to -- HS: That nuclear clock still ticks. JB: Right. Gotten us to the end here. Would you like to have any wrap-up question, a final question? HS: Yeah. I think, you may have said this already, Lolly, but here's one more chance to say it. LG: All right. HS: For folks out there, this law has been in place for about a year. What should folks who've been ignoring it for the last year do right now? LG: I think the first thing they should do is to look at the Copyright Office homepage and print off the summary. HS: I'm sure we have the URL out on the CREN Website, but could you just tell it to us again? LG: Umm. HS: No, you can't. JB: If not, we will -- if it's not there, we will make certain it is. Maybe, Lolly, you could send it to us and we could make certain it there. LG: Any search engine will pull it up with just "US Copyright Office." JB: Okay, all right. LG: Because I do that often. My copy for some reason didn't print the URL on it, I guess because it was an Adobe file on the Website. But it's a nice summary, it's easy to read. The full Act is about 70 pages long and is not easy to read, and you have to have both the old Act and that new one together to really understand it. But that's what I would do, and to look at the pieces of it that relate to you. The part on Online Service Provider Liability would be one part that I think your audience ought to look at and look at carefully. Also the part on anti-circumvention would be one that I think the technology people really need to look at, because those of us who are not technology folks wouldn't know how to go about breaking into these systems and decrypting. I mean, that's not just something we know how to do. HS: Right, and we don't plan to have a TechTalk on how to do it! JB: Well, I was going to say! LG: No, no! JB: Let's not and say we did. LG: That's right. I mean, there are some exemptions even there, like for legitimate encryption research and some things, but I would say that the technology people ought to look at those pieces of it at a minimum. But of course, because I spend my life doing this, I think that summary is very easy to read. But I think Howard read it and you felt the same way -- that it was a good summary and helpful. HS: Yeah, it was very good. We never got, in this talk today, on the part about boat hulls that is just thrown into the middle of the thing, but it is strange to read some of these legal things. LG: That's right. If any of you are designing boat hulls, you'll need to know about the Boat Hull Provision that's tacked on here. HS: It's right in the middle of the Copyright Act. LG: Right. JB: However we won't ask or recommend it as a priority. HS: Right, and we will not accept questions on it right now, either. JB: Okay, all right. Well, let me say, then, thanks to all of our Web participants for being with us here today for this time with Lolly. And that you are welcome to send a few follow-up questions to expert@cren.net and we'll get those answered individually or on the Web. I'd like to invite you all to be sure and mark your calendars for October 21, just two weeks from today, and this TechTalk will feature Alex Hills -- a return visit from Alex from Carnegie Mellon with an update on his campus-wide and Wide Area Network wireless implementation. This session is an excellent complement to the UCF wireless of about a month ago. Also, be sure and check the Website for upcoming events, and as always, we welcome suggestions and feedback on what you would like to see and hear on TechTalk. Thanks to all who helped to make this event possible today: to Vince Vezza of Compaq, the Higher Education group; to the Board of CREN; to our guest expert, Lolly Gasaway; to Howard Strauss, technology anchor; to Terry Calhoun, our event page producer; to David Smith, Patty Gaul of CREN; to Julia O'Brien, Jason Russell, Carol Wadsworth and the whole support team at the Merit network; to Susie Berneis, our audio file transcriber; to Laurel Erickson, our transcript editor and indexer; everyone doing a great job, and finally, thanks to all of you for being here. You were here because it's time. Bye, Lolly. Bye, Howard. HS: Bye, Judith. Thank you, Lolly. LG: Bye. JB: Bye, everyone, and see you all next time. LG: Bye-bye.
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