Congress probes digital copyrights

Publisher Angela Adair doesn't think twice about asking Net service providers to remove Web sites she alleges are illegally posting her copyrighted works.

In the past few months, Adair said she has stumbled upon a handful of Net sites containing unauthorized copies of articles from her magazines the Write Markets Report and National Writer's Monthly. Just yesterday she asked free Web-hosting community XOOM to investigate yet another site.

"Immediately upon finding out that they have illegal copyrighted material on their services they should remove it or liability should kick in," said Adair, who is the owner of the Deep South Publishing Company in Shoreacres, Texas.

Intellectual property owners like Adair--and the companies she now frequently approaches to mediate her copyright squabbles--are at the center of an international debate that is coming to a head in Congress today.

The Senate Judiciary Committee today will mark up the WIPO Copyright Treaties Implementation Act, which aims to strengthen copyrights for digital works and makes it a crime to create technology that could be used to break copyright protection devices.

Although the current copyright law is murky on the issue, Adair for one said if a Web hosting company fails to act after learning about a customer's infringement, she will go after the provider, too.

"With the Internet it's easier for people to copy my material, but it's also easier for me to catch them," she added. "But I do think additional legislation is needed to cut down on electronic copyright infringement because the laws were invented before the Internet."

Earlier this month, the House Judiciary Committee cleared the bill introduced by Rep. Howard Coble (R-North Carolina) and Sen. Orrin Hatch (R-Utah). In addition, the committee merged the legislation with Coble's Online Copyright Infringement Liability Limitation Act, which limits Net access providers' accountability for copyright infringements made over their networks--unless they have knowledge of such activity or gain economically from it.

As reported earlier, the Coble-Hatch bill is expected to be amended today to establish more safe harbors for ISPs in return for their support of the legislation's controversial provisions--primarily the condition that makes it illegal to create or sell any device that could be used to crack technologies that safeguard copyrighted material.

According to a draft of the liability amendment, ISPs will be exempt from responsibility when they are simply passing data over the Net automatically; caching temporary copies of material; if a customer stores an infringing copy on the service provider's system; or if the provider links to a site that contains infringements.

But the safeguards only apply if ISPs act "expeditiously" to remove illegal copies of intellectual property when they have knowledge of or are made aware of the infringement.

"We already are doing this, but we'd be in favor of this type of legislation," said Jeff Shafer, a spokesman for Sprint Internet. "If we get a complaint we tend to send a letter to the person who appears to be in violation. As appropriate, we take down the content until the issue is resolved."

Still, the expanded ISP protections, and the entire WIPO bill, stand to be derailed because of the so-called black-box provision, which opponents argue will outlaw reverse engineering and also prevent libraries and schools from accessing material they are entitled to use when it is protected by any anticircumvention technology.

This issue is a major linchpin in the Senate committee's negotiations.

"The provision allows a copyright owner to put a digital fence around its information, and then prosecute someone who wishes to walk through the fence in order to use information that the current copyright law deliberately makes legal--such as 'fair use' for schools and libraries," said Adam Eisgrau, legislative counsel for the American Library Association (ALA).

"The provision creates a practical environment in which 'fair use' won't have applicability--that has to change," he added.

Groups such as the ALA also are seeking new protections for distance learning programs that use the Net. For example, educators now can use portions of copyrighted material to teach via television, but the same allowance isn't clearly laid out when it comes to using video clips or passages from books in a multimedia environment.

However, the software and recording industries insist that passage of the black-box provision is pivotal in giving the legislation teeth. Otherwise, they argue, the law will be no different than the status quo.

Legal experts agree that copyright laws need to be updated for the digital age.

Although the Telecommunications Act of 1996 deems ISPs conduits of information and not publishers , the copyright liability issue for providers is still unclear.

Even if ISPs don't throw support behind the black-box provision, Congress should still clarify their liability for customers who violate copyrights, argues Michael Overly, special counsel to the information technology group at the firm of Foley & Lardner.

"There are going to be problems, such as how quickly does an ISP have to remove the content?" Overly said. "But the law still needs to be tweaked to protect online providers.

"For now, if an ISP gets a complaint from somebody, they should ask for evidence that the person owns the copyright material," he added. "Then it is incumbent upon the ISP to tell their client they have a complaint and they're going to have to pull the material."

Despite all the interests being weighed, proponents of the black-box provision are optimistic that it will pass.

"We've been engaged with a lot of people to resolve all of these issues," said Mark Traphagen, vice president of the Software Publishers Association. "I think it's really, really promising."