On Tue, 4 Jun 1996, John Raffetto <raffetto[_at_]podesta.com> wrote:
>
> The White Paper was a starting document -- NOT LAW -- and since its
> publication there have been countless hours of MEANINGFUL discussion
> on how to protect intellectual property in cyberspace. These
> discussions continue to this day. I would not classify the above
> banter as "meaningful".
--John Raffetto, Podesta Associates, presumably speaking for the
his baby, the Creative Incentive Coalition
I myself would consider the flawed white paper to be mere "banter" on behalf of the copyright interests, especially the clients of John Raffetto's influential bosses (see more details below for the White House connections).
Alas, however, this bizarre paper--and yes, I'll tell why it is on the wacky side--is already being cited in court and is influencing legislation.
The paper is, after all, copyright policy from the Clinton Administration, which is seeking to promote a similar philosophy overseas. Given the international nature of copyright law and the passion for standardization, the battle to an extent could already have been fought by the time Congress gets around to passing laws. The Administration's use of the paper may well be an invasion of the turf of the legislative. If nothing else, the NII process as a whole has invaded the turf of educators and librarians, whose concerns, compared to the past, have received minimal attention.
For analysis of the white paper, list members needn't trust me, a nonlawyer. They can read top IP professors' banter at http://www.clark.net/pub/rothman/boyle.htm and learn how the paper treats existing case law.
Here is a direct quote from an Open Letter signed by the 100+ professors: "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 violation.
"--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....
--"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."
> continue to this day. I would not classify the above banter as
> "meaningful".
As CNI folks can see, my summary was very much in the spirit of the letter from the 100+ professors. If this is mere banter, why did the late Sec. Brown forward the professors' letter to Bruce Lehman, the Clinton IP czar, for a response?
> Charles Kennedy, a law professor at Catholic U., has done an excellent
> job of outlining the truth about what affect copyrights will have in
> cyberspace (published in LA Times). It is repreinted with permission at:
Obviously, scads of top IP professors see things in a different light, and are horrified by the legal analysis in the white paper. In a separate letter--to Bruce Lehman--James Boyle of American University says:
"I would argue that the analysis given here demonstrates that the White Paper is wrong about the law, again and again, and always to the same effect. The direct contravention of controlling Supreme Court precedent in fair use, the minimization of specific legislative history over RAM copies, the turning of widely criticized opinions from two circuits into the legislative framework for the Net, the Response's failure to mention the Netcom case, all of this is troubling."
May I raise the suggestion that politics just might be overpowering law? One of the leading groups defending the paper, the Creative Incentive Coalition, for which John Raffetto works, enjoys some most interesting connections. It's a creation of Podesta Associates, whose chair, Tony Podesta, "was a member of the Clinton for President Finance Committee since its inception in 1991 and served on the Presidential Transition until January 20" (http://www.podesta.com/bio.html). John Podesta, "Of Counsel," "served in the Clinton Administration as an assistant to the president and staff secretary at the White House. He managed the paper flow to and from the President, including coordination of White House Senior Staff advice on Presidential decision memoranda and approval on all Presidential documents" (http://www.podesta.com/bio.html). Among Podesta's strengths--free ad for John Raffetto's bosses!--are:
--"Extensive bipartisan lobbying expertise with the Executive and
Legislative branches and independent regulatory agencies..." (http://www.podesta.com/podesta.html)
--"Creation and management of issue-based coalitions and grassroots
organizations..." (http://www.podesta.com/podesta.html)
Coming soon: "Welfare Mothers and Law Professors for Draconian Copyright Policy"?
The big frustration here is that the hardworking and well-connected folks at Podesta are missing out on a chance to help their clients and the true grassroots types at the same time. I, for one, think that publishers and writers are getting far, far less than they should. In a $7-trillion economy, all the book writers in the country earn perhaps $4 or $5 billion in royalties, or less than the annual sales of Microsoft alone. And schools are spending maybe $125 per child per year on intellectual property of all kinds, a pittance, and none other than the Association of American Publishers has released a fine report showing how the quality of education is suffering. See "Two in Five Teachers Says Kids Don't Have Enough Textbooks: Many Say They Can't Assign Homework" (http://www.publishers.org/news/releases/school.html) for the details from AAP. Bravo to this CIC member for at least recognizing the basic problem!
Perhaps instead of trying to carve up the IP pie in a way that harms the schools and libraries, CIC could "stand up for children" (to quote a popular expression among some Clinton types in D.C. nowadays) and devote its considerable influence to lobbying for a slowly phased in and well-stocked national digital library (with ample linking opportunities for local and university libraries, and with protection of the fair use tradition).
Hey, John, just think what CIC could do *together* with educators and librarians.
Cheers,
David Rothman | rothman[_at_]clark.net | 703-370-6540
[Reproduction of the above encouraged. No permission needed.] Received on Wed Jun 05 1996 - 17:45:50 GMT
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