IP: Washington Update 4-10-98

[Dave Farber <farber@cis.upenn.edu>]

FARNET'S WASHINGTON UPDATE --- APRIL 10, 1998	


FARNET (http://www.farnet.org) is a non-profit public interest
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and related communities.




IN THIS ISSUE:




FEDERAL JUDGE RULES NSF DOMAIN NAME FUND ILLEGAL; NGI FUNDING SOURCE PUT IN
JEOPARDY


HOUSE JUDICIARY COMMITTEE APPROVES WIPO COPYRIGHT TREATIES IMPLEMENTATION
ACT; ADDS LAST-MINUTE OSP LIABILITY PROVISIONS
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FEDERAL JUDGE RULES NSF DOMAIN NAME FUND ILLEGAL; NGI FUNDING SOURCE PUT IN
JEOPARDY


U.S. District Court Judge Thomas Hogan ruled Wednesday that the
"Intellectual Infrastructure Fund"(IIF) fee collected as part of every
Internet Domain Name registration is an illegal tax. Judge Hogan's decision
could prevent the National Science Foundation from spending the $23 million
authorized by Congress for Next Generation Internet
(NGI)(http://www.ngi.gov) research for fiscal year 1998. (NGI research is
coordinated among several federal agencies, each with a specific
Congressional-approved NGI budget. See FARNET's  NGI appropriations table
for FY 1998: (http://www.farnet.org/contents/update/funding.html )


Judge Hogan recognized the intent of Congress to authorize the NSF to use
the IIF funds, but held that more explicit legislation is required to
express its intentions. Judge Hogan also ruled that the non-IIF balance of
the registration fee charged by NSI was legal; it compensated the company
for services provided. 


The Court also noted that, in spite of its holding, Congress can allow the
NSF to use the funds in question by passing legislation that ratifies the
IIF fee as a tax.  If Congress does not choose this option, it is possible
that the $30 IIF portion of each domain name registration fee collected so
far (totaling about $45 million) will be refunded to the registrants (with
a substantial portion going to the attorney for the case, William Bode). 


HOUSE JUDICIARY COMMITTEE APPROVES WIPO COPYRIGHT TREATIES IMPLEMENTATION
ACT; ADDS LAST-MINUTE OSP LIABILITY PROVISIONS


The House Judiciary Committee last week marked up H.R.2281, the "WIPO
Copyright Treaties Implementation Act." 
(http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281:)


Introduced by Rep. Henry Hyde (R-IL) and supported by the Clinton
Administration, the stated purpose of the bill is to ensure that U.S.
copyright law complies with the World Intellectual Property Organization
(WIPO) copyright treaties
(http://www.wipo.org/eng/diplconf/distrib/94dc.htm), passed in December 1996. 


The Business Software Alliance (BSA), whose membership includes Microsoft,
supports the bill and its strong copyright protections for software
authors.
(http://www.bsa.org/bin/show.cgi?URL=pressbox/enforcement/e_press_4.1.98_c.h
tml)


In an attempt to clarify the bounds of online service provider liability,
Rep. Bob Goodlatte (R-VA) announced an 11th-hour compromise agreement among
"all interested parties".  Originally a separate bill (H.R. 3209), the
Judiciary Committee chose to add Rep. Goodlatte's OSP liability provisions
to the WIPO Copyright Treaties Implementation Act (H.R. 2281) as an


amendment. 


Although H.R. 2281 states that existing tenets of fair use will be
maintained, the education and library communities are actively concerned
that fair use is not adequately protected.  For instance, the bill
prohibits the creation of any technology that may be used to circumvent
"technological protection measures" designed to prevent unauthorized
copying and distribution of copyrighted works.  Critics say that the bill's
focus on technology, rather than the conduct of the individual, may stifle
innovation and may inhibit educators' and researchers' fair use rights for
accessing information on the Internet. 


During the committee markup, Rep. Rick Boucher (D-VA) proposed substituting
H.R. 2281 with a bill he co-sponsored with Rep. Tom Campbell (R-CA).
H.R.3048, known as the "Digital Era Copyright Act") has wide support from
the education sector. Like H.R. 2281, this bill implements the WIPO
copyright treaties, but at the same time proactively supports the fair use
provisions of existing U.S. copyright law and supports the use of computers
for distance education. The Boucher-Campbell bill's language addresses
copyright owner concerns by penalizing the conduct of copyright
infringement rather than the development of circumvention technology.  


The House Judiciary Committee strongly defeated the Boucher substitute bill
this time around, and sent the WIPO Copyright Treaties Implementation Act
(with Rep. Goodlatte's OSP liability amendments) to the House floor.         


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