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[FYI] (Fwd) Article: How to Lance Copyright Bureaucracy for Inte

------- Forwarded Message Follows -------
Date:          Tue, 1 Dec 1998 08:03:18 -0500 (EST)
From:          Andy Oram <andyo@oreilly.com>
Subject:       Article: How to Lance Copyright Bureaucracy for Internet Services
To:            gilc-plan@gilc.org
Reply-to:      gilc-plan@gilc.org

While this week's article concentrates on a U.S. problem,
note that the law implements an international (WIPO)
treaty. So other countries may have to face similar problems
in the near future.

                             by Andy Oram
                    American Reporter Correspondent
        CAMBRIDGE, MASS. -- The new Copyright Act was meant to promote
electronic networks by protecting content placed online. It was not
meant to erect barriers against site administrators and service
providers by imposing extra requirements on them. But its "directory
of agents" section, barely noticed by interested parties before
passage of the act, could create an annoying and -- in my judgment --
unnecessary burden on a wide range of Internet services.
        The framers of the Digital Millennium Copyright Act of 1998
wanted to increase the penalties for electronically distributing
software, music, and other mass-market content without permission. But
at the behest of librarians, educators, researchers, service
providers, and other people who depend on the dissemination of
information over the Internet, the bill picked up a number of sections
over time to protect legal, innocent copying.
        For instance, it would be unfair to sue a university because a
student put unlicensed software up for file transfer, or to sue a
service provider because it rented a Web site to someone who was
offering commercial music recordings for downloading. Indeed, any
content that appears on the Internet crosses a number of systems whose
owners know nothing about it, just as an infringing book passes
through distributors, retail stores, and public libraries.
        So a "safe harbor" was created in the copyright act for sites
that host content put up by other users. But Congress thought that it
might be difficult to determine the owner of a site from its URL or
other identifier (an assumption I will challenge later). So they
inserted clause 512(c), which requires the Copyright Office in the
Library of Congress to maintain a "directory of agents" that lists the
owner for each Internet service provider, and allows them to charge a
fee to cover costs.
        What is a "service provider"? If it's simply a business
offering Internet service, like the familiar dial-up access most of us
use, the registry would contain about 5000 agents and would burden
only a narrow range of people. But the law defines "service provider"
in relatively vague terms: "a provider of online services or network
access, or the operator of facilities therefor." An analysis by the
law firm of Lutzker & Lutzker in Washington, D.C. says this definition
"is intended to be broad."
        The law could be interpreted to cover a school or university
that gives Web sites to students, or a non-profit community network
that gives free accounts to low-income people. My own company, the
publisher O'Reilly & Associates, allows its employees to put up
personal Web sites and even at times to run servers of their own under
the oreilly.com domain.
        Will all these myriad organizations have to register with the
Copyright Office? And could it handle the onslaught of registrations
if we did?
        Sometimes the chain of ownership extends through several
levels. For instance, an Internet service provider may provide a
section of its Web site to a community group. That community group may
then offer its users accounts and posting privileges.
        If a user posts something infringing on copyright (say, an
internal document from the Church of Scientology), who should be
liable? The user, the community group, or the service provider? The
Copyright Act protects the community group and service provider -- but
only if they register.
        But this is not the worst of it. Suppose you put up a Web page
with links to sites you like -- and unbeknownst to you, one of those
sites has an unlicensed recording or piece of software? Could a link
on a Web page be considered contributory copyright infringement?
        The idea is by no means ridiculous. People have been sued for
making links to other sites without those sites' permission. The legal
status of Web links is still unclear in the courts, but according to
my (legally untrained) reading of the Copyright Act such links are
protected. (You are transmitting the material without modification,
and are not making a copy.) But still, you may have to be registered
with the Copyright Office to be protected!
        Robert Raben, Democratic counsel on the House Judiciary
Committee, says that registration is required in order to be protected
by the new Copyright Act, but that site administrators could take
their chances by not registering. They would then depend on whatever
protections are offered by common law and tradition.
        The registration section was added fairly late in the life of
the Copyright Act -- first in the Senate version, then on the floor of
the House -- and seems to have escaped the notice of all the affected
parties, such as service providers and universities. This oversight is
not surprising because those institutions were busy fighting so many
other provisions. The Copyright Act was a controversial bill opposed
by communities ranging from librarians to cryptography researchers; it
changed considerably during the two years it needed to pass Congress.
        The Copyright Office is now trying to disentangle the rules
and find the least burdensome way to implement section 512(c). But
their interim regulations, for starters, lead one to groan. They
provide a (mercifully short) form that must be sent in to the Office
with $20 for handling.
        Twenty dollars doesn't seem like much of a burden for any
organization that offers Internet accounts to users. But the law is
just one more burden that they don't deserve.
        Furthermore, the United States is only the first of countries
to adopt such laws. The 1998 Copyright Act was passed in order to
bring us into compliance with an international treaty. So other
countries are sure to follow in our path -- and fees for registration
in those countries may truly be a barrier to sites going online.
        Bookstores don't have to register with the Copyright Office in
case someone puts pirated books there for sale. Nor do television and
radio stations have to register just in case they broadcast a pirated
film clip or recording. The Copyright Act places a unique burden on
one of the most democratic media, one that has historically faced no
regulations at all.
        Enough griping -- what can we all do to fix this problem? The
Copyright Office is open to suggestions and will soon start a formal
comment period before making a final ruling.
        In my opinion, tracking down copyright infringement online is
by no means as hard as the people who wrote 512(c) think. I would like
to modestly propose a solution that grew out of an exchange I recently
had with a lawyer colleague.
        One of his clients had a copyright problem: some employees
left to start a competing business and placed online some documents
they stole from the client. Using the simple advice I gave him, he
found the infringers and resolved the problem within a few hours.
        What I told him to do was take the host name of the site (for
instance, www.american-reporter.com), strip it down to the last two
parts (american-reporter.com) and enter a whois query on a machine
offering standard Internet commands ("whois american-reporter.com").
This command would reveal the administrative and technical contact
people, who can find out what user owns the infringing files.
        Different databases have to be searched for different domains,
but the contact people of any domain can be found. And since these
contact people give out user accounts, they can find out who put any
document or program on their systems.
        Using this principle, the Copyright Office could offer a
"directory" that is simply a Web-page form leading to a program that
interfaces with the "whois" command. They may thus be able to follow
the letter of the law while almost completely eliminating
administrative costs for themselves and Internet services.
        Such a solution would require a questionable definition of
"service provider" as "owner of a domain name." It may not fully
protect administrator in the middle between the domain name owner and
the users -- for instance, the community group mentioned earlier.
        But we all need to work together and think creatively to
prevent this law from running away with us. Nobody wants to put
unnecessary barriers in the way of offering Internet content. And it
would be anathema to most Americans to force anyone to register just
in order to provide information.


Andy Oram is moderator of the Cyber Rights mailing list for
Computer Professionals for Social Responsibility, and an editor at
O'Reilly & Associates.

This opinion piece appears today in the American Reporter,
and can be found online starting tomorrow (along with
suitable hypertext links and an index of related articles)


The article can be redistributed online, with author and newspaper
attributions intact, for non-profit use.  For printing or commercial
use, please contact Joe Shea, publisher of the American Reporter, at

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