Statement On Copyright Law Revisions
by Allee Willis
Songwriter

Before The House Judiciary Committee, Subcommittee On Courts And Intellectual Property - September 16, 1997

My name is Allee Willis and I am a songwriter. My biographical sketch is available to you. I would merely highlight that in 1995 I was nominated for an Emmy for my Number 1 hit "I'll Be There For You" (theme from the television program "Friends") by The Rembrandts, one of the best selling themes of all time. In 1985, I won a Grammy for Best Soundtrack for "Beverly Hills Cop." My songs have sold over 40,000,000 records, including "Neutron Dance" by the Pointer Sisters, and "September" and "Boogie Wonderland" by Earth, Wind And Fire. I currently am designing "willisville", a radically new approach to interactive entertainment communications and transactions. A story-driven, interactive online experience, willisville draws on and integrates multiple technologies, platforms and media (online, television, music, books, CD-ROMs, etc) to create one cohesive virtual world. The seed money for willisville was provided by Intel. I have been a consultant to Microsoft and the Walt Disney Company, have created virtual worlds for a variety of other technology and entertainment companies, and have worked with at least one major online service provider.

Mr. Chairman, and Members of the Subcommittee, I am honored to be here to testify before the Subcommittee on two very important pieces of legislation: H.R. 2281, the "WIPO Copyright Treaties Implementation Act," and H.R. 2180, the "On-Line Copyright Liability Limitation Act." On behalf of my fellow songwriters, I thank you for your leadership both in introducing these two measures and conducting these hearings. As a songwriter, I am pro-Internet. I have dedicated the past five years of my life working with hundreds of different technologies to figure out new mass media of entertainment and communication -- the hub of which is the Internet -- as well as the business models that will allow it to flourish. Speaking for all songwriters and composers, we welcome the opportunity for the new medium to flourish. However, songwriters and composers have some very serious concerns about the protection of our artistic creativity in any form on the Internet. In my case, my entire career is dependent on it.

The U.S. is the leader in Cyberspace -- from a technological, economic and policy perspective. Seventy percent of Internet traffic starts and stops within the U.S.

I appear before you today on behalf of Broadcast Music, Inc. ("BMI"). I would like to submit into the hearing record a preliminary review prepared by BMI of the two bills with specific drafting considerations and constructive criticisms, and would ask that it be placed in the record. BMI is one of this country's three performing rights organizations, and it represents the public performing rights of over 180,000 songwriters, composers and music publishers in all 50 states and throughout the world. BMI also represents many thousands of works created by foreign songwriters and composers when their works are performed in the United States. There are over 3 million musical works in the BMI repertoire. As this Subcommittee knows, BMI (under the leadership of its President and CEO, Frances W. Preston) has testified on numerous occasions about amendments to the copyright law to meet technological advances in the distribution and performance of music.

In considering BMI's position, I would ask that you keep two over-arching thoughts in mind:

First, songwriters' ideas are a part of the cultural fabric; our ideas are infectious and speak of and to people's lives. Songs are among the most all-pervasive forms of communication and information that exist. Music is an integral part of all entertainment product.

Second, please do not deprive songwriters of an income for that which we create. We are paid for our music through the Copyright Act, and particularly the public performing right.

On a much broader cultural and societal note, the finest minds must be encouraged to be excited about and actively create the future. Legislation concerning Cyberspace must be seen in the context of building a whole new world that increasingly is becoming a part of each and every human being's living space. Laws must contemplate this reality. We can breed brilliant, creatively inspired civilizations to come or we can breed really silly, robotic ones. Congress will provide the framework on which future civilizations will be built. It is imperative that Congress enact legislation that will attract and enable the "best of" artistic brains to design and develop Cyberspace. And that will not happen unless the financial incentives to creators of intellectual property are there.

Congress should encourage and protect songwriters and composers, for it is our music being danced to at your daughter's wedding; it is our music that keeps running through your head and comforts and excites you; it is our music that unites the world in mourning, as the deaths of Princess Diana and Mother Teresa so emotionally portrayed. And it is our music that has the power to lead the masses into Cyberspace and, once and for all, turn it into the thriving economy that it must become in order to survive as a new medium of entertainment and communication.

In a time of blinding technological change, Congress -- acting through this Subcommittee -- is attempting to pass legislation that will meet the needs of the digital future. It seems trite to observe that the Internet has moved from a military program in 1969 to approximately 9,400,000 "host" computers in 1996. The number of Internet households is expected to increase from 23.4 million in 1996 to 66.6 million by 2000.

However, H.R. 2281 and H.R. 2180 move in opposite directions. H.R. 2281 places copyright law on a firm foundation so that the United States can ratify two important new copyright treaties protecting the rights of creators of intellectual property in Cyberspace. H.R. 2180 strikes at the heart of the current copyright liability standards that are so important to enforcement of copyright rights in the digital era. Songwriters, composers, and creators of all intellectual property will be the losers and, on balance, that is a poor public policy for the United States to assume from an artistic, cultural and economic perspective.

I.

H.R. 2281 (WIPO Copyright Treaties Implementation Act)

Over the years, U.S. copyright law has been malleable in the face of the many changing ways in which Americans share the expression of their ideas: from photographs to motion pictures to radio to broadcast television to cable television to high powered direct broadcast satellite television to multimedia. The existing copyright law has provided protection for American creativity and commerce, benefiting the public good and the United States international trade position. Effective copyright laws are the responsibility of this Subcommittee and, Mr. Chairman and Members of the Subcommittee, thank you for a job well done.

Yet, copyright protection is under serious threat. Piracy, counterfeiting and unauthorized public performances are rampant in the new digital environment in which we must live. To create new, broad exemptions will only compound and exacerbate this unacceptable situation.

You already know how important the creative industries are to our country's economy and our leadership position in global trade. The U.S. copyright industries: (1) represent more than 5 percent of the United States workforce -- roughly equal to the U.S. auto industry; (2) are growing at 2 times the growth of the U.S. economy; and (3) represent more than 6 percent of Gross Domestic Product. Copyright industry foreign sales and exports are only exceeded in their generation of revenues from foreign countries by the automobile and automotive parts businesses and the agricultural sector. If you contest these numbers, just come to Southern California to dispel your doubts.

As part of a global economy, American music is the most popular in the world. American music generates substantial revenues for the United States through performances in foreign countries. Sales of CDs also generate substantial revenues for the United States. We cannot afford to undervalue performances via electronic transmissions in Cyberspace and other uses of our intellectual property assets. If we do not provide effective protection for copyrighted works in the United States, an incentive will be created for the owners of these copyrights to move their businesses offshore.

Public performances of musical works are valuable property. Songwriters, composers and music publishers depend for their livelihoods on being compensated for the use of their works. The core business -- moving digital data across networks -- of Internet access providers, online service providers, telephone companies, and soon, even cable television operators ("service providers") is directly stimulated by the quality and value of the content available. Content should be protected by these parties to help drive traffic through their networks.

As a personal aside, I have extensive experience working with and consulting for some of these service providers. Though they like to portray themselves as content nurturers, from all perspectives -- technology to creative and to business -- they by no means have our best interests in mind and therefore actually discourage great works of art from inhabiting their networks.

A new technology should not dictate the creation of sweeping exemptions from copyright liability that will change a working system of compensation for the content community that has worked well for many years. For these reasons, BMI believes that WIPO treaty ratification should not be held hostage to service provider liability reform.

BMI supports ratification of the two new WIPO treaties. As the world's primary producer of music, the United States has the most to gain from the expeditious ratification of the treaties. If Congress enacted the implementing legislation without delay, the United States could ratify both treaties in short order and then could exert forceful leadership worldwide to encourage every country to join the new treaties. And if we were to enact strong implementing legislation, we would provide a very powerful model for other countries to emulate in revising their own national laws. With quick action, we can move to end piracy in Cyberspace before it takes root, and the United States will be the big winner.

On the other hand, weak implementing legislation would set a dangerous precedent that would give comfort to our trade competitors and a big boost to foreign pirates. We would also make it very unlikely that the Internet will ever reach its full potential as an effective medium for mass entertainment or a broad avenue for scholarly discourse. A legislative framework that sanctions broad exemptions for key players will destroy the fail-safe security that we need to encourage robust commerce on the Net. If Congress builds a loose and open structure, we will: send a signal against self-expression (the power of the song); reduce economic investments in the creation of new works; promote piracy of American music in Cyberspace; and prevent copyright owners from being compensated for the exploitation of their works. The United States will be the big loser.

As you know, Mr. Chairman, the WIPO treaties require signatory countries to protect copyright owners against devices that defeat anti-copying circuitry, and to safeguard the copyright management information that the copyright owners embed in each work. The state of the art is advancing every day. We should encourage emerging software technology to protect the value of copyrights. BMI urges you to pass straightforward legislation that clearly establishes broad liability, but allows the courts to apply as appropriate well-established copyright principles of fair use, contributory infringement, and vicarious liability.

However, the Subcommittee may want to respond to the wishes of the equipment manufacturers and others for greater certainty on the question of liability for violations of both the anti-circumvention provisions and the copyright management information provisions of the legislation. The current draft provides some of that clarification. Nonetheless, in BMI's view, the legislation needs a bit more clarification to ensure that companies or individuals who want to use the system cannot abuse the system.

II.

H.R. 2180 (On-Line Copyright Liability Limitation Act)

Mr. Chairman, in your introductory statement for H.R. 2180, you stated that it was a "starting point" to stimulate debate. That goal has been achieved.

To highlight the negative consequences of H.R. 2180 to songwriters and composers, consider the following four real-life scenarios (bearing in mind that most service providers will qualify for the bill's liability exemption):

1. A bulletin board is created to retransmit music uploaded to it by user-fans of a particular rock band. The public performances of the music (both the uploading and the downloading) are unauthorized. Provided that the bill's minimal conditions are met, neither the service provider that hyper links to the bulletin board nor the bulletin board itself will fear liability. How will a copyright owner or its representative be able to protect intellectual property?

2. BMI licenses a web site. Provided that the bill's minimal conditions are met, service providers are exempted from copyright liability for promoting and hyper linking to the licensed site. In other words, a licensed site will become available worldwide at no cost to service providers yet the service providers will benefit from the intellectual property located on the licensed site.

3. A pirate (unlicensed) web site devotes itself to transmission of music. Provided that the bill's minimal conditions are met, hyper linking to the pirate site by and through service providers is permitted without fear of provider liability. How will a copyright owner or its representative be able to protect intellectual property?

4. An e-mail distribution system is created to transmit music in compressed or real-time to host computers. Because service providers are prohibited by law from accessing e-mail accounts, no liability will arise even if the service provider knows that the material is infringing and the service provider contends that it has no obligation to tell anyone the name or address of the sender of the infringing work without a court order. By the time a court order is obtained and the information about the sender is obtained, substantial damage will be done to the value of the copyrighted work or works. [At the same time, if a virus was contained in the e-mail, a service provider could remove the virus automatically before delivery.] How will a copyright owner or its representative be able to protect intellectual property?

H.R. 2180 substantially tilts towards the interests of service providers (including the behemoth regional and long-distance telephone companies) regarding their potential liability for copyright infringement when infringing material is transmitted through their services. The bill is far-reaching in its implications, not only in the digital realm, but in the analog world as well.

BMI would like to set forth four concerns about the proposed treatment of liability in digital transmissions as set forth in H.R. 2180.

1. First, and foremost, the bill simply does not work for effective collective rights management entities that work on behalf of copyright owners. It cuts to the heart of collective interests of music creators. It is unclear how the proposed legislation would work for the public performance of music, and whether a collective licensing organization would be able to file notice of its entire repertory of works on behalf of the songwriters and music publishers that it represents. It is clear that a "notice" of infringement under H.R. 2180, as drafted, would not include a "take down" of BMI's entire repertory.

2. Second, we believe that adopting a blanket immunity for online service providers from civil damages for vicarious liability and contributory infringement (as H.R. 2180 would do) would be a catastrophe for protection of copyrighted works in the U.S. given the rapid development of the Internet as a transmission medium. It benefits the huge entities, such as telephone companies and access providers, and takes away from protection which was needed in the analog world and is certainly needed, to an even greater extent, in Cyberspace.

3. Third, it seems unwise to attempt to fashion a more limited, technology-based exemption at this time due to the rapid evolution of the technology and the business models of online services. Any such technology-based exemption would spawn decades of litigation about who qualifies.

4. Finally, there should continue to be no knowledge requirement for either direct or vicarious liability of service providers. Nothing that they do is so fundamentally different from traditional media as to warrant overturning the bedrock strict liability principle of U.S. copyright law.

In BMI's more than 57 years of experience, there have been a long line of businesses that have attempted to evade vicarious liability while profiting from others' infringements. In BMI's view, online services are not unlike the swap meet organizers found liable by the Ninth Circuit in Fonovisa v. Cherry Auction, 76 F.3d 259 (9th Cir. 1996). In this case, a corporation leased space where pirated records were swapped without the corporation's direct knowledge. It was liable nevertheless. In U.S. law, the lower limitation on statutory damages for "innocent infringement" is the way for courts to handle situations where related parties are truly ignorant of the infringements.

In your deliberations on this matter, BMI, as a collective rights organization that licenses the public performing right, can offer a perspective that others may not have made. The Copyright Act defines public performances as transmissions to the public "by any device or process." Whenever an entity transmits or facilitates the transmission of a musical work to a member of the public from point A to point B, regardless of the number of transitory reproductions that may occur in packet switched networks, the resulting transmission can be viewed as a public performance requiring the permission of the songwriter or copyright holder. In this regard, BMI views online transmissions as not unlike broadcast and cable transmissions. Audience measurement data suggest that television is losing audience to the Internet. If the vast majority of the transmissions on the Internet would effectively be exempt (as the proposed legislation contemplates), without these revenues there would be no incentive for creators of intellectual property to permit their works to be transmitted over the Internet. Revenues currently being received by songwriters and publishers would be greatly diminished. Why should all public media that play the same song all compensate the songwriter, except for the Internet?

Cable systems are at the forefront of offering high speed modem access to the Internet. Imagine, if you will, that the cable industry signs each of its 60+ million subscribers to a $20 to $40 per month service. We are talking about over $12.5 to $25 billion per year in potential annual revenues that could be all but entirely exempt from licensing under H.R. 2180. This system will result in a windfall to cable television and other service providers at the expense of creators of intellectual property.

Furthermore, the liability law Congress enacts will be copied almost immediately, but with bigger loopholes, in China and other developing countries that are havens for piracy. Why send the wrong signal to our trading partners overseas when we have made so much progress in protecting our national treasure, American creativity and artistic expression?

Finally, the bottom line is if you want private copyright owners to continue to shoulder the burden of enforcing their copyrights, including collective rights licensing, we need strong civil damages and strong liability laws.

Conclusion

Mr. Chairman, and Members of the Committee, for the people to enter Cyberspace and successful business models to evolve, it must grow beyond the bland, corporately designed, inferior-level-of-artist designed world that exists now, doomed to forever elude the imagination of the public at large, never to reach its true potential. The Subcommittee, legislating at a time in history where the biggest changes that have ever happened to the human species are upon us, really needs to think about the 21st Century in 21st Century ways. Innovative ideas about the future are at the base of all our successes -- mine, yours, everyone's. Don't keep creative genius in a cage. Please ensure that the new world is constructed in the most innovative, inspiring and beneficial way possible and that means compensating the true visionaries, the creators of art and song, fairly.

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