Promoting Electrotechnology Careers and Public Policy

June 11, 1998

Honorable Tom Bliley
Chairman
House Committee on Commerce
2125 Rayburn House Office Building
Washington, D.C. 20515-6115

Dear Chairman Bliley:

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 the internet service provider (ISP) liability issue related to 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. IEEE-USA also represents the interests of the internet user community.

We are aware that there is a possibility that the U.S. House of Representatives might adopt the language of the Digital Millennium Copyright Act (S. 2037)--which includes a comprehensive section on internet service provider liability (ISP). Although IEEE-USA believes that the extensive compromises made between the ISP and content provider community went a long way toward improving S. 2037, we believe the internet user community's concerns were not addressed. IEEE-USA still has serious concerns about the lack of recourse for web developers who are wrongly accused of infringement as well as those people who use the web and have incurred damages due to their denied access to a particular web page.

The Senate bill states that,

"Any person who knowingly materially misrepresents under this section (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by the service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it."

IEEE-USA believes that the Digital Millennium Copyright Act (S. 2037), as presently written, does not adequately provide recourse or protection to an accused party if they are wrongly accused of copyright infringement other than by a "knowing material misrepresentation." The accuser has merely to believe that someone is infringing their copyright in order to escape liability. The copyright owner or his/her agent, under this bill, can contact the ISP and request that the ISP "take down" the accused material or the entire web site of an internet user. The ISP escapes all liability by "taking down" the accused person's web site immediately. Often times, a complainant may believe that someone is infringing and later they are proven to be incorrect. In this instance the accused user has incurred economic harm and has no effective recourse.

Therefore, IEEE-USA recommends that the complainant must:

1. sign an oath under penalty of perjury in accordance with 18 USC 1001 with respect to the notice. (See appendix A). The complaining party shall supply the name and address of the complaining party's legal representative in reasonably sufficient detail to permit the user to contact the complaining party. The accusing party must have made a reasonable inquiry to find out whether the material under question is infringing.

2. have registered or have applied for registration of the subject copyrightable work under scrutiny at the time of notifying the ISP;

3. notify Copyright Office that they have already notified or are about to notify the ISP of the alleged infringement on their ISP service;

4. notify the ISP if the work has not been registered that an application has been filed.

Even if the House Commerce Committee chooses not to adopt the Digital Millennium Copyright Act language at its markup, IEEE-USA believes that it is essential to adopt legislative language that will provide some recourse to the wrongly accused web developer.

We would be happy to meet with you to discuss this matter further.

Sincerely,

John R. Reinert
IEEE-USA President

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

Appendix

TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 47 - FRAUD AND FALSE STATEMENTS

Sec. 1001. Statements or entries generally

Statute

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -

1. falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

2. makes any materially false, fictitious, or fraudulent statement or representation; or

3. makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title or imprisoned not more than 5 years, or both.

(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party's counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.

(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to -

1. administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or

2. any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.

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Last Update: June 11, 1998

Staff Info Contact: Scott Grayson, s.grayson@ieee.org