Protest Letter of 100+ Law Professors

Subject: Protest Letter of 100+ Law Professors
From: Emanuella Giavarra (
Date: ti 04 kesä   1996 - 21:47:05 EEST

The CNI discussion list reported yesterday that more than 100 law
professors signed an Open Letter addressed to the USA
Administration to warn of the serious constitutional threats of the
USA "White Paper on Intellectual Property and the National
Information Infrastructure".

See for a fascinating
exchange between the Clinton Administration and one of the
professors. I have copied the Open Letter to this message.

The discussions in the USA are very relavant for Europeans. Most
of the arguments we are using to fight for the "user rights" under
copyright are tested in the USA at the moment. Besides this the
USA Administration is trying very hard to get what they want via a
backdoor: the new Protocal to the Berne Convention. Since
February the discussions in the World Intellectual Property
Organization (WIPO) have been speeded up and this is certainly
due to the determination of the USA to get regulation in place before
the next election. The danger of it all is that the Berne Convention
sets minimum standards for implementation in the national laws of its
members. The Berne Convention counts over 80 members of which
all EU countries. This means that the USA legislation will effect also
your own situation.

I am very interested to know if anybody of this list already follows
the discussions in the USA and what their views are. I know that in
Finland there is a broad discussion on the implications of the
Information Society. Could anybody report on that?

Thank you!

Emanuella Giavarra
ecup-list moderator

Dear Sirs:

We are a group of over 100 law professors, concerned about the
Administration's "White Paper"
on "Intellectual Property and the National Information
Infrastructure." Some of us are teachers or
scholars of intellectual property, but many of us are not -- instead
focusing on constitutional law,
the First Amendment, law and economics, private law, education
policy or some other area. All
of us, however, are concerned about privacy, about free speech,
about access to information and
about the structure of the information economy. We write to you as
the legislators and high
executive officials most closely concerned with this area of the law.
As you know, Senators
Hatch and Leahy have just introduced the legislative
recommendations of the White Paper as
Senate Bill 1284 and an identical Bill has been introduced in the
House. We urge that these Bills
be withdrawn for further study, that there be an open and public
debate of this important area of
information policy, and that the Administration not take any action
on the international front which
would effectively commit the country to a set of rules without a real
domestic or legislative


The White Paper says it is just a "minor readjustment" of the law. In
fact, it is a radical measure
which has negative implications for public, journalistic and scholarly
access to information, for free
speech and for privacy. In economic terms, the Report's
recommendations seem to be designed
around the imagined needs of the largest current right holders, with a
corresponding negative
effect on future innovation and competition. Finally, the Report's
inversion of fair use doctrine and
its maximalist stance toward intellectual property rights seem to
presage a country divided among
information "haves" and "have-nots" in which the Clinton
Administration's promise of universal
access would be lost. The radical quality of the White Paper's
suggestions and interpretations of
current law can be seen from the fact that they;

      Through a far-fetched and formalistic interpretation of copying,
would make reading a
     document on the screen of your Web browser a copyright
      Privatize much of the public domain by overturning the current
presumption of
     "fair use" in non-commercial copying. Instead, wherever the same
material could instead
     be licensed by the user, the use would be presumed to be an
infringement. Fair use is a
     crucial part of copyright law, providing as it does the raw
material for much of scholarly
     research, news reporting, and public debate. This provision,
coupled with others in the
     White Paper, has the potential to cut those who cannot afford to
"license" information off
     from the information highway, in dramatic contrast to the Clinton
     expressed commitment to "universal access."
      Make on-line providers -- America On-line, for example --
strictly liable for
     violations of copyright by their members, making it necessary for
them to monitor
     what their users are doing, with obvious negative effects on
privacy and on
     affordable access to on-line services.
      Make you civilly liable for attempting to attempt to tamper with
any copyright
     protection device or system (such as encryption of programs and
other digital
     products or the on-line equivalents of caller I.D. ) even if you do
so, not with the
     intention of illegitimately copying the product but for entirely
legitimate purposes, such as
     protecting your own privacy. This provision would also allow
software companies to
     circumvent the current law on decompilation; by locking up their
programs they could deny
     other companies the right they hold under current law to
"decompile" those programs so as
     to achieve "interoperability." In doing so it would confer an
enormous advantage on the
     current large players, increase the monopolistic tendencies in this
market and undermine
     innovation and competition.
      Make it a Federal crime to remove, for whatever reason, any of
the copyright
     management information embedded in any document,.

There is more, but we think that this makes the point that the issues
here go beyond the purview
of "intellectual property" narrowly defined. The White Paper has
effects on privacy, on the
potential for informed democracy, on public education, on scholarly
research, on future
innovation, on market power; on the very structure of the
information economy. Though these
points were made during the Hearings, they are nowhere seriously
discussed in the Report itself.
We need a more inclusive and deliberative legislative process to
decide such issues -- in which
the voices of those who wish to protect the public domain, or who
simply believe that there has
been a rush to judgment, can be heard. The idea that "emergency"
action is necessary to save the
Net or to save the "digital" high tech economy generally, hardly fits
with the astounding growth of
both over the last three years.

To all of these substantive concerns we would add a concern with
the process. The
Administration has pursued a "dual track" strategy with the White
Paper, lobbying for it both as
the basis for both domestic legislation and international agreement.
Intellectual property treaties
generally only allow the citizens and corporations of a state to claim
particular intellectual property
protections abroad if their own State recognizes those same
protections at home. Thus, an
Administration which proposes expansive intellectual property
protection abroad can, by getting
other countries to accept these protections, put overwhelming
pressure on the Congress. Only by
voting for restrictive rules at home, the argument will go, can we
assure that our companies can
compete on a level playing field abroad. This "bootstrapping"
technique obviously has disturbing
consequences, both for the separation of powers and for citizens'
ability to participate in
democratic decision making.

For all of these reasons we would ask that;

      Senate Bill 1284 and House Bill 2441 be withdrawn for further
      Hearings be held in which there are representatives of all views,
and not merely those of
     the largest rights-holders.
      An open, public deliberative process can be conducted in which
participation is not
     effectively limited to the copyright bar;
      We also ask Secretary Brown and Vice President Gore that,
consistent with the principle
     of the separation of powers, the administration not take any
action on the international
     arena which would effectively commit the United States to a
particular set of intellectual
     property rules without domestic debate.

Whatever happens, the addressees of this letter will be remembered
for drawing attention to the
need for new ground rules for the information society. It would be a
tragedy if those ground rules
smothered the economic, political, educational and cultural potential
of the information highway
under a regulatory apparatus set forth with unnecessary haste. The
digital environment is currently
a thriving area of both economy and culture; emergency action
intended to "save" this flourishing
environment might actually harm it. We would respectfully ask you
to slow the process down --
and open it up -- before that harm comes to pass.

I have been following for a while the discussion in the USA on the
White Paper on Intellectual Property and the National Information
Infrastucture. The reason for this is that the discussion on fair use
and privacy has

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