Mr. ROACH. Well, I would love to go there, and I think with your popularity we can convince them that this is really the best solution. Mr. COBLE. Oh, he is a charmer. Isn't he a charmer? [Laughter.] Mr. COBLE. Thank you, gentlemen. Thank you, Mr. Chairman. Mr. HUGHES. Thank you. I just have a couple more questions. In the few short years that hardware-based copyright restriction has been pursued and advocated, we have seen one system scrapped after another as tests revealed serious defects. My question is is rapidly changing technology likely to make this legislation obsolete and, perhaps, even counterproductive in the next few years? Mr. Roach or Mr. Nimiroski. One or the other. Mr. ROACH. It would appear to me that the legislation really is broadly construed from a technology perspective, and it, unlike some other legislation that was proposed that was limited to very specific formats, this is a very general piece of legislation that encompasses really all of the digital domain which is likely to be introduced into the technology for the foreseeable future. And so I think the bill does do an adequate job of making future technologies legal. Mr. HUGHES. Is that what distinguishes the bill that was developed just 2 years ago? Mr. ROACH. Yes. Mr. HUGHES. Because those that talk to us today about that technology indicate that it would have been obsolete if, in fact, we had passed that legislation 2 years ago. Mr. ROACH. Yes. The last bill was specifically a DAT-digital audio tape the technology that Sony demonstrated earlier. This bill will encompass DAT, digital compact cassette, recordable CD, minidisk, even firmware type of distribution of digital music which could conceivably come about in the future. So it is not really limited as to the media, but really to the specific intent and purpose of the recording for music purposes. Mr. WEISS. Excuse me, Mr. Chairman? Mr. HUGHES. Mr. Weiss. Mr. WEISS. Isn't it nice that this is such a comprehensive bill that you won't have us coming back to you every year or 2 years asking, please solve this new problem for us? Mr. HUGHES. Mr. Weiss, it is a pleasure to see you back. [Laughter.] Mr. HUGHES. It is a pleasure to see you before the committee. Imagine a store and forward system under which recording music is supplied by broadcasters, telecopiers, et cetera, on demand to consumers at home who are listening and taping. Would the home taping authority in this bill still apply and be effective, in your judgment? Anybody? Ms. SHERMAN. Voice and storage equipment that would be at a commercial level would not be covered by this legislation because this legislation basically covers devices used by individuals for individuals. It would not cover transmission equipment and other equipment that would be in commercial enterprises. Mr. HUGHES. But I am talking about a technology where you could access that, let's say by a home device, computer device or other device. Where the accessing is done in one's home. Ms. SHERMAN. To the extent that the equipment at home comes within the definition, then it would fall within the legislation. The offering of that kind of service raises other issues which are not the subject of this legislation, but the home equipment would be covered. Mr. HUGHES. I see. I think that is all the questions that I have. The panel has been very, very helpful to us today, and we are indebted to you for your tremendous leadership. I know each of you have been very key players in arriving at this consensus. We particularly appreciate having a constituent from my district so prominently playing a role in this important area. We are delighted to have Barry Manilow with us, and we can understand why he has made so many folks around the world happy for so many years. And we are delighted to have you with us. And, Mr. Weiss, I am familiar with many, many of your songs. I was going through the list of them and you have shared with Americans likewise, and people around the world, some treasures, and we thank you. In particular, thinking about "I'll Never Be Free" brings back so many pleasant experiences. Mr. WEISS. You know that one? [Laughter.] Mr. WEISS. You are one of the four people that remembers that. Mr. HUGHES. Because I wonder if I'll ever be free. [Laughter.] Mr. HUGHES. In any event, thank you very much. You have been very helpful to us today. Mr. ROACH. Thank you, sir. Mr. HUGHES. I would like to welcome now our second distinguished panel of witnesses. I wonder if those that remain in the room will attempt to try to keep it down as you either go back to your seats or leave the hearing room, so we can bring our next panel up. Our distinguished second panel this morning consists of three individuals with expertise in the areas of copyright law and digital technology. First is Jessica Litman, a professor of law at Wayne State University, who has written extensively on copyright law and has taught intellectual property law for much of the past decade. Second is Dr. Irwin Lebow, a physicist who has worked in computers and satellite communications. He recently published a book, "The Digital Connection: A Lawman's Guide to the Information Age." Our third witness is Dr. Wayne Green, publisher of CD Review, as well as a number of other publications dealing with music and technology. Dr. Green is also the secretary of the Independent Music Publishers Association. We thank you for being with us today. We have your statements. We have read them. And, without objection, they will all be made a part of the record. We hope you can summarize for us, but you may proceed as you see fit. Why don't we begin with you, first of all, Ms. Litman. Welcome. STATEMENT OF JESSICA LITMAN, PROFESSOR OF LAW, WAYNE STATE UNIVERSITY Ms. LITMAN. Thank you, Mr. Chairman, members of the subcommittee. You have clearly read my statement and I won't go back through it. I am just here to help. I raise in my statement some of the difficulties that I think this bill raises that I think you must take very, very seriously before enacting it. Private copying is a fundamental problem for the entire field of copyright, and sooner or later Congress is going to have to bite the bullet and resolve it. This might be one step toward trying a solution and seeing whether or not it works. I do want to make just a couple of very short comments in response to earlier testimony. The Register of Copyrights talked about this bill as applying only to high-end audio, very expensive digital machines for the audiophile, and that is certainly true today. Ten years from now, it is my expectation that all tape recorders will be digital tape. We are talking about a solution not for the next 2 years or 10 years, but a permanent feature of the copyright law, although I would urge you to add a sunset provision to the bill. Second, the suggestion that we could resolve some of the ambiguity in the bill by replacing the term "phonorecord" with the term "audiogram" will indeed remove one potential ambiguity from this bill only to introduce another ambiguity back into the copyright law as a whole. If an audiogram is not a phonorecord, then phonorecord no longer means what the courts have thought that it meant. If you decide to pursue that course, you might amend the definition of phonorecord, rather than adding in another term and generating litigation over what Congress now says that phonorecord means. Finally, the last panel talked about how the technology in the bill will not become obsolete because instead of simply covering one medium or one format it covers all digital media, all digital format; "now known or later developed" is the language. The difficulty I see is that while the coverage of the bill is for all digital media "now known or later developed" the technological solution that all of those digital formats must incorporate is terrifically specific. The technical reference document is very specific, very detailed. We don't know whether that technological solution is going to make sense for products that haven't been developed yet. It might be more sensible simply to tell Commerce what it is you would like the standards to accomplish, which is to prohibit a second generation copying in digital recording technology, and leave it to Commerce to try to generate regulations that keep up with technology, with some more breathing space to adjust as technology develops faster than any of us can ever predict. Thank you. Mr. HUGHES. Thank you, Professor Litman. [The prepared statement of Ms. Litman follows:] Statement of Professor Jessica Litman on H.R. 3204 Before the Subcommittee on Intellectual Property and Judicial Administration of the House Committee on the Judiciary, 102d Congress, Second Session February 19, 1992 Mr. Chairman, members of the Subcommittee, my name is Jessica Litman. I am a Professor of Law at Wayne State University. I have taught, and written about, copyright law for eight years. Thank you for inviting me to testify on the Audio Home Recording Bill. I should say at the outset that I neither support nor oppose this legislation; I wish only to raise some issues for your consideration. This bill results from the negotiation of industry representatives. No member of Congress drafted it or was even involved in its drafting. Instead, private parties negotiated a compromise of their ongoing dispute, embodied their understanding in proposed statutory language, and handed the bill to Congress, saying "Here. We've all agreed on this. Now, you enact it." That process is, in fact, the same process you have used for drafting and enacting copyright legislation throughout this century. Indeed, the negotiations that led to H.R. 3204, like the negotiations that led to previous copyright statutes, were strongly encouraged by members of this Subcommittee and the Senate Subcommittee. So there is nothing unprecedented in enacting a copyright bill that was devised and drafted entirely by private industry. Because the substance of the bill was worked out and the language of the bill was drafted with little or no Congressional input, however, it is very important that Congress, in deciding whether to enact the bill, make an independent assessment of whether it serves the public interest. Industry representatives are just doing their jobs when they propose legislation that they believe will benefit their industries. Your job is to ascertain whether that legislation will benefit the public at large. Those inquiries are not the same. My hope is to raise some of the issues that might be relevant to your determination. First, because this is a negotiated bill that tries to resolve disputes among a number of industry actors, it shows some of the hallmarks of negotiated legislation. For one thing, the bill is very, very long. This is not a bill to curl up with in front of the fire for a good read: when combined with the technical appendix, it may, all by itself, double the number of words in title 17 of the United States Code. Like most privately negotiated bills, it is numbingly specific in some instances, where the parties compromised on very detailed specifications, and frustratingly vague in others, where the parties glossed over their disputes. I would not want to be either of the three administrative agencies charged with administering the statute, nor the court asked to review those agencies' compliance with the statutory mandate. Second, because this bill is a result of negotiations among private industry representatives, it is important to think about who was not at the bargaining table, and to ask whether their interests are adequately addressed by the resulting proposal. The most obvious absent parties were the members of the general public who engage in home taping of recorded works. The removal of the cloud surrounding whether home taping is fair use is not much of a direct benefit to these consumers, since any rights to prevent their home taping, if they exist, are essentially unenforceable. On the other hand, consumers, by virtue of this bill, will get the opportunity to buy DAT machines and media without the manufacturers being sued, and are asked to pay relatively modest royalties in return for that privilege. Another unrepresented group includes the musicians and artists who -2 |