Promoting Electrotechnology Careers and Public Policy

April 2, 1998

Representative Howard Coble
Chairman
House Judiciary Subcommittee on
Courts and Intellectual Property
2239 Rayburn House Office Building
United States House of Representatives
Washington, D.C. 20515

Dear Chairman Coble:

On behalf of the Institute of Electrical and Electronics Engineers - United States of America (IEEE-USA), and its 220,000 U.S. electrical, electronics and computer engineers we wish to comment on Section 3 Copyright Protections Systems and Copyright Management Information of the WIPO Treaties Implementation Act (H.R. 2281).

We believe that we can contribute a unique perspective to the bill since the IEEE-USA Intellectual Property Committee is made up of practicing engineers, entrepreneurs and intellectual property attorneys who are U.S. IEEE members with expertise in the field of information technology.

As one of the world's largest publishers of technical material, we realize that without a copyright protection system in place we could conceivably stand to loose a great deal of IEEE's intellectual property revenue. The technology that is presently available allows users to reproduce material with great speed and accuracy. Without a copyright protection system in place, hundreds even thousands of copies of IEEE's intellectual property could be reproduced and disseminated for free throughout the world.

However, IEEE-USA believes that Section 1201, Circumvention of Copyright Protection Systems, of H.R 2281 will have the following negative impact on our members since it will:

1. prohibit Internet users from protecting themselves against outside viruses, worms, or other breaches of security or privacy. With the development of new Internet technologies, copyrighted works could include executable programs that run on the user's machine when viewing a web page. This internet technology, known as applets, could be used in a way that would be considered a copyright protection device and therefore the removal or modification of such technology would be in violation of Section 1201 of this bill. This same technology could also be used to damage a user's computer data and invade one's privacy.

   Internet users need to be permitted to look at, modify, or disable anything that executes on their own system. Since copyrighted works are starting to include executable code that might not only implant viruses but can gather information from the user's system, the public must have a mechanism to protect themselves without being held liable for a "protection-defeating" device violation.

2. impede "legal" copying or legal forms of reverse engineering of computer programs as defined by the 9th Circuit Court of Appeals in Sega v. Accolade. Copying a computer program at least for the purpose of interoperability was defined as legal fair use the 9th Circuit, as well as two other U.S. circuit courts. Frequently engineers must reverse engineer software so that they can write a different but compatible piece of software that will operate on that particular system. Without copyright fair use, software monopolies will grow in power, and start-up companies will die. IEEE-USA believes that decryption of encrypted material for purposes of fair use of encrypted copyright material should not be a violation.

3. inhibit research and testing in this area by private entrepreneurs. Encryption has become a big business in the U.S. The U.S. has become a world leader in the sale of this technology. Testing one's decryption resistance becomes very important as the technology improves and the speed of computers increase. This bill would discourage such third party product testing by the market place. We would lose our leadership role in encryption technology if decryption devices are considered punishable under this bill. There are commercial businesses working with quasi-standard encryption methods and new "unbreakable" ones are being developed. The only way to test the strength of encryption technology is to attempt to decrypt the encryption through decryption devices that may be prohibited by this bill. Although we do not believe that the intent of the bill was to prohibit product testing we do believe that it would have that effect.

4. make it possible for an organization to take government data, that was once available to the public, and republish the information. Once it was published, perhaps with minor changes in format, this organization would hold the copyright to this information, under H.R. 2281 as a compilation, and lock up this data using a copyright protection device. If the original data was not easily accessible, the general public would be deprived of this information that was once available to them. Under this bill a copyright protection system could not be circumvented to show a lack of originality, thereby making government data, paid for by the U.S. taxpayer, inaccessible to the public even under the Freedom of Information Act (FOIA).

5. impose criminal sanctions upon innovators who may not be infringing copyright rights. Section 1204 of H.R. 2281 condemns the mere act of circumventing copyright protection systems--whether or not the act is infringing. We believe this will stifle innovation in the United States and therefore do not believe that criminal sanctions are appropriate. IEEE-USA believes that innovators of new technologies should not have to live under the threat of criminal sanctions--civil remedies are sufficient to deter those people who would violate sections 1201 and 1202.

As an alternative, IEEE-USA believes that Section 8 Copyright Protection and Management Systems of the Digital Era Copyright Enhancement Act (H.R. 3048) goes a long way to address our concerns listed above. Accordingly, IEEE-USA urges you to substitute Section 3 of H.R. 2281 with Section 8 of the Digital Era Copyright Enhancement Act (H.R. 3048). IEEE-USA believes that Section 8 of H.R. 3048 is the correct approach since it acknowledges the important link between technology and infringement.

We thank you for the opportunity to comment on this important bill, and we would be happy to provide you with addition information. Please contact us if you have any further questions regarding these recommendations.

Sincerely,

John R. Reinert
IEEE-USA President

Daniel E. Fisher, Chair
IEEE-USA Intellectual Property Committee

The Institute of Electrical and Electronics Engineers - United States of America
1828 L Street, N.W., Suite 1202, Washington, DC 20036-5104
Office: (202) 785-0017 * Fax: (202) 785-0835 * E-mail: ieeeusa@ieee.org * Web: http://www.ieeeusa.org

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Last Update: April 2, 1998

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