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August 22, 2001
The Honorable Robert B. Zoellick
U.S. Trade Representative
600 17th Street, NW
Washington, D.C. 20508
Dear Representative Zoellick:
I am the Chief Executive Officer of the Association
for Computing Machinery (ACM). ACM is the world's
first educational and scientific computing society
with 80,000 members internationally --over 60,000
in the Americas alone. I am writing to express ACM's
concerns regarding the draft Free Trade Area of the
Americas (FTAA) treaty's intellectual property provisions.
We are particularly concerned that the draft treaty
requires nation-signatories to enact local copyright
legislation that mandates strict anti-circumvention
measures similar to or even expanding similar restrictions
imposed in the U.S. by the Digital Millennium Copyright
Act (DMCA ). The anti-circumvention provisions of
the draft FTAA treaty included in Article XX [Obligations
concerning technological measures] unjustly harm the
freedom of computer scientists to engage in research
fundamental to the progress of innovation.
ACM and other scholarly organizations have consistently
opposed the anti-circumvention provisions of the DMCA
(Sections 1201--1204 of title 17 U.S.C). In our view,
the overly-broad provisions impede the progress of
research in cryptography and other computer security
areas by criminalizing multi-use technologies rather
than narrowly penalizing infringing behavior. Absent
some clear criminal intent, technologists should not
be penalized for conducting research that is crucial
to developing, testing, and improving copyright protection
systems, security software, and software engineering
tools. This should be of special concern in countries
with developing IT industry: overbroad restrictions
on research may result in their being shut out of
developing markets and technologies.
During consideration of the DMCA by the U.S. Congress
and the subsequent rulemaking process, ACM and others
recommended that the anti-circumvention provisions
of the legislation be revised to restrict only circumvention
directly involved in infringement. Unfortunately,
our objections were not satisfactorily addressed as
the DMCA was enacted. As a result, scientists are
now finding themselves in a position where they must
consult attorneys to determine if their previously
legitimate research might be in violation of the DMCA.
In some instances, the threat of legal action under
the Act has deterred scientists from publishing scholarly
work or even publicly discussing their research. Certain
foreign scientists and international members of ACM
have indicated they will not attend conferences in
the U.S. while the law is in force. By enacting anti-circumvention
provisions in the FTAA, other American countries may
be bypassed for future conferences and development
activities, to their detriment.
Because its broad prohibitions on disseminating information
and technology restrict speech protected by the First
Amendment to the U.S. Constitution, the DMCA is currently
under legal challenge in the U.S. ACM, the Computing
Research Association, and numerous distinguished computing
experts have advised the court that the anti-circumvention
provisions of the DMCA have proven to have a chilling
effect on U.S. scientific and research enterprise.
We believe it would be a poor idea to include similar
restrictions in the FTAA treaty. Should the anti-circumvention
provisions of the DMCA be ruled unconstitutional in
the U.S., the U.S. would be unable to agree to the
treaty. These provisions may also contravene other
national rights and traditions of member nations,
and should be closely examined in that light. ACM's
mission is to advance the open interchange of information
concerning computing and related disciplines. In furtherance
of that mission, ACM is a leading publisher of scientific
information that promotes computer research, innovation,
and economic growth through the advancement of computer
technology. ACM's maintains an online Digital Library
- a complete electronic archive dating back to 1954
of all the articles published in ACM journals, magazines,
and conference proceedings. It currently includes
over 80,000 articles authored by leading researchers
and scientists in the computing field. The articles
in the Digital Library contain computer code, mathematical
equations, algorithms, and other means by which scientists
communicate technical information.
If the anti-circumvention provisions of the draft
treaty were to become law, ACM could not accurately
assess the risk involved in presenting and publishing
papers on computer security and on technologies used
to protect copyrighted digital works. Even if ACM
were willing to assume whatever risk were involved
in the presentation and publication of such papers,
our members may not be. We are concerned that some
of our members, intentionally or not, may censor their
submissions to avoid potential problems stemming from
over broad anti-circumvention restrictions. If that
were to happen, the quality of ACM papers and presentations
would be hurt and the scientific community as a whole
could suffer substantial damage.
We urge you to remove the onerous anti-circumvention
provisions from the FTAA treaty language. Please contact
Jeff Grove, Director of the ACM Public Policy Office
at (202)659-9711, if we can provide further information
on this important matter.
Sincerely,
Dr. John R. White
CEO and Executive Director
Association for Computing Machinery
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