Friday, August 31, 2001

Libraries Criticize Federal Report on Digital-Copyright Law By ANDREA L. FOSTER Advocates for libraries are criticizing a U.S. Copyright Office report, released late Wednesday, that recommends against revising copyright law to assure that libraries and consumers can lend and archive software and other electronic material they purchase. The report concludes that the 1998 Digital Millennium Copyright Act, which updated copyright law for a digital environment, has not significantly undermined what is known as the first-sale doctrine. The doctrine allows purchasers of books, CDs, and software to give them away or sell them. "Given the relative infancy of digital rights management, it is premature to consider any legislative change at this time," the report states. The Copyright Office is required to issue the report to Congress so that lawmakers can decide whether there are holes or flaws in the digital-copyright law that need to be fixed. Library groups and scholars have long argued that the act's anticircumvention provision and nonnegotiable license contracts with software vendors have been undermining the first-sale principle. The anticircumvention provision forbids breaking the encryption on digital material. Decrypting the data would allow consumers to make a copy that could be lent out or sold. The Microsoft Corporation has stoked libraries' concerns by configuring its new Windows XP operating system so that one copy cannot be used on different computers. Acknowledging that linking software to hardware equipment threatens the first-sale doctrine, the Copyright Office report states that "the practice of tethering a copy of a work to a particular hardware device does not appear to be widespread at this time, at least outside the context of electronic books." Noting Windows XP, Arnold P. Lutzker, a lawyer for five national library groups, said: "There is tethering, and now what do you say?" The groups argued last December in a hearing at the copyright office that a new digital first-sale doctrine should be added to copyright law. Such a law, they said, would supersede onerous license agreements with software and database vendors that limit interlibrary loans and archiving of documents. A spokesman for the Copyright Office referred calls to the office's legal department, which was not available for comment late Thursday. Many library groups said Thursday that they were still digesting the report and declined to comment on it. But the American Library Association offered a comment through Frederick W. Weingarten, director of the office for information-technology policy. "We're disappointed," he said. "I can't say we're terribly surprised. It's consistent with things the Copyright Office has said in the past." Last year, the Copyright Office ruled that the digital-copyright law should not be revised to expressly permit copying of portions of electronic literary, musical, and video materials. Despite its conclusions about the first sale doctrine and archiving, the Copyright Office recommended some legislative changes. It recommended revising the digital-copyright law to clarify that temporary "buffer" files made while broadcasting videos or music on the Internet should be exempt from infringement liability and extra royalty fees. The office also advised that the law be clarified to say that backup copies of electronic data are prohibited from distribution under the first-sale doctrine. Mr. Lutzker said he could support these recommendations, but that they were minor compared to what the library groups had requested. "They miss real evidence," he said. "The report is already outdated, and it just came out." The full text of the report is available online (requires Adobe Acrobat Reader, available free). Easy-to-print version E-mail this article

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