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Wednesday, March 15, 2006
 
 

U.S. Senate Committee on the Judiciary

U.S. Senate Committee on Commerce, Science and Transportation

U.S. Senate Committee on Small Business and Entrepreneurship

U.S. Senate Committee on Foreign Relations

U.S. House Committee on the Judiciary

U.S. House Committee on Energy and Commerce

U.S. House Committee on Science

U.S. House Committee on Small Business

U.S. House Committee on International Relations

(Subcommittee recipients listed below)

Dear Chairpersons and Ranking Members:

Negotiations are currently underway at the World Intellectual Property Organization (WIPO) to develop a treaty giving broadcasters power to suppress currently lawful communications. The United States delegation is also advocating similar rights for "webcasters" through which the authors of new works communicate them to the public.

Some provisions of the proposed "Treaty on the Protection of Broadcasting Organizations" would merely update and standardize existing legal norms, but several proposals would require Congress to enact sweeping new laws that give private parties control over information, communication, and even copyrighted works of others, whenever they have broadcast or "webcast" the work.

The novel policy areas addressed by this treaty go beyond ordinary treaty-making that seeks worldwide adherence to U.S. policy. Instead, this initiative invades Congress’ prerogative to develop and establish national policy.  Indeed, even as Congress is debating how best to protect network neutrality, treaty negotiators are debating how to eliminate it.

The threat to personal liberties presented by this treaty is too grave to allow these new policy initiatives to be handed over to an unelected delegation to negotiate with foreign countries, leaving Congress with the sole option whether to acquiesce.  When dealing with policies that are related to copyright and communications, Congress's assigned powers and responsibility under Article I, Section 8 of the Constitution become particularly important.  We urge two important steps.  First, the new proposed regulations should be published in the Federal Register, with an invitation to the public to comment. Second, the appropriate House and Senate committees should hold hearings to more fully explore the impact of these novel legal restrictions on commerce, freedom of speech, copyright holders, network neutrality, and communications policy.

Americans currently enjoy substantial freedoms with respect to broadcast and webcast communications.  Under the proposed treaty, the existing options available to commercial enterprises and entrepreneurs as well as the general public to communicate news, information and entertainment would be limited by a new private gatekeeper who adds nothing of value to the content. Communications policies currently under discussion at the FCC would be impacted.  Individuals and small businesses would be limited in their freedom of speech.  Copyright owners would find their freedom to license their works limited by whether the work had been broadcast or webcast.  The principle of network neutrality, already the subject of congressional hearings, would be all but destroyed.

As able as the staff of the United States Patent and Trademark Office and the Library of Congress may be, it was never intended that they alone should stake out the United States national policy to be promoted before an unelected international body in entirely new areas abridging civil liberties. Congress should be the first to establish America’s national policies in this new area so that our WIPO delegation will have sufficient guidance to achieve legitimate objectives without impairing Constitutional principles such as freedom of speech and assembly, without impairing the value of copyrights, and without granting to private parties arbitrary power to suppress existing freedoms or burden new technologies.

We cannot afford for Congress to wait for the Senate to be presented with a fully formed treaty calling for the enacting of domestic law at odds with fundamental American liberties, foreign to American and international legal norms, and that would bring to a close many of the benefits of widespread personal computing and the end-to-end connectivity brought by the Internet.  We ask Congress to use its authority now to shape these important communications policies impacting constitutionally based copyright laws and First Amendment liberties.
 
 

Signed,
	(Affiliations for individual signers are for identification only.  Endorsing organizations are listed separately.)
	William Abernathy, Independent Technical Editor Anthony Aiello, Development Editor, Reference Division, Oxford University Press Moe Lawrence Aitel, PE, CEO A-TECH Engineering David G. Andersen, Assistant Professor of Computer Science, Carnegie Mellon University Scottie D. Arnett, President, Info-Ed, Inc. Jonathan Askin, Pulver.com John Bachir, Ibiblio.org Tom Barger, DMusic.com Fred Benenson, FreeCulture.org Josh Berkus, PostgreSQL Project Daniel Berninger, VON Coalition Eric Blossom, GNU Radio Joshua Breitbart, Media Tank Daniel Bricklin, bricklin.com, co-creator of VisiCalc spreadsheet Dave Burstein, Editor, DSL Prime Michael Calabrese, Vice President, New America Foundation Dave A. Chakrabarti, Community Technologist, CTCNet Chicago Steven Cherry, Senior Associate Editor, IEEE Spectrum Andrew Clausen, economics PhD student Steven Clift, Publicus.Net Roland J. Cole, J.D., Ph.D., Executive Director, Software Patent Institute Gordon Cook, Editor, Publisher and Owner since 1992 of the COOK Report on Internet Protocol Kees Cook, kernel.org Walt Crawford, Editor/Publisher, Cites & Insights Chris Dashiell, Film Critic, cinescene.com Cynthia H. de Lorenzi, Washington Bureau for ISP Advocacy Cory Doctorow, Author, journalist, Fulbright Chair, EFF Fellow Marshall Eubanks, CEO, AmericaFree.tv David J. Farber, Carnegie Mellon University, University of Pennsylvania Harold Feld, Senior Vice President, Media Access Project Miles R. Fidelman, President, The Center for Civic Networking Richard Forno  (bio: http://www.infowarrior.org/rick.html) Jim Fruchterman, President, Benetech Anthony W. Gallipeau, IT Specialist, Newell/Rubbermaid Laura N. Gasaway, Professor of Law, University of North Carolina Paul Gherman, University Librarian, Vanderbilt University Shubha Ghosh, Professor of Law, Southern Methodist University Paul Ginsparg, Cornell University Daniel Golding, Senior Industry Analyst, Burton Group, www.burtongroup.com Fred R. Goldstein, Ionary Consulting Robert Gregory, I. T. Manager, Community Action Opportunities Robin Gross, IP Justice Shaun Gummere, Director of Web Services & Lecturer in Web Design, Simmons College Michael Gurstein, New Jersey Institute of Technology Jon Hall, President, Linux International Chuck Hamaker, Atkins Library, University of North Carolina - Charlotte Charles M. Hannum, consultant, founder of The NetBSD Project Dewayne Hendricks, CEO, Dandin Group David R Hughes, CEO, Old Colorado City Communications, 1993 EFF Pioneer Award Paul Hyland, Computer Professionals for Social Responsibility David S. Isenberg, Ph.D., Founder & CEO, isen.com, LLC Charles Jackson, Adjunct Professor of Electrical and Computer Engineering, George Washington University Robert Jacobson, Ph.D., Independent Scholar and Editor, Information Design Saleem Jahangeer, Ph.D. Stuart Jansen, www.DevUtah.com Seth Johnson, New Yorkers for Fair Use Paul Jones, School of Information and Library Science, University of North Carolina - Chapel Hill Peter D. Junger, Professor of Law Emeritus, Case Western Reserve University Brewster Kahle, Internet Archive Cem Kaner, J.D., Ph.D., Professor of Software Engineering, Florida Institute of Technology Jerry Kang, Professor of Law, UCLA School of Law Dennis S. Karjala, Jack E. Brown Professor of Law, Arizona State University Ken Katkin, Associate Professor of Law, Salmon P. Chase College of Law Dan Krimm, Independent Musician Michael J. Kurtz, Astronomer and Computer Scientist, Harvard-Smithsonian Center for Astrophysics Bruce Kushnick, chairman, Teletruth Jonathan Lawson, Reclaim the Media Edward Lee, Assistant Professor of Law, The Ohio State University, Moritz College of Law Andrew Lippman, Senior Research Scientist, MIT Media Lab Michael Maranda, President, Association For Community Networking Kevin Marks, mediAgora Anthony McCann, www.beyondthecommons.com Sean McLaughlin, founder, Hawaii Consumers Kembrew McLeod, Associate Professor, Dept. of Communication, University of Iowa Sascha Meinrath, Champaign-Urbana Community Wireless Network, Free Press Wilson Michaels, Software Developer (Retired) Edmund Mierzwinski, Consumer Program Director, U.S. Public Interest Research Group Lee N. Miller, Ph.D., Editor Emeritus, Ecological Society of America Edward Mills, Independent Technology Consultant John Mitchell, InteractionLaw Tom Moritz, Chief, Knowledge Management, Getty Research Institute Milton L. Mueller, Internet Governance Project Andrew Odlyzko, University of Minnesota Ken Olthoff, Advisory Board, EFF Austin Andy Oram, Editor, O'Reilly Media Dave Pentecost, documentary television producer Bruce Perens (bio at http://perens.com/Bio.html) Ian Peter, Senior Partner, Ian Peter and Associates Pty Ltd Jan L. Peterson, Software Developer Steve Peterson, Independent Software Consultant Malla Pollack, Law Professor, American Justice School of Law Jeff Pulver, Pulver.com Tom Raftery, PodLeaders.com David P. Reed, contributor to original Internet Protocol design Jerome H. Reichman, Bunyan S. Womble Professor of Law Anthony Riddle, Executive Director, Alliance for Community Media Lawrence Rosen, Rosenlaw & Einschlag; Stanford University Lecturer in Law Bruce Schneier, security technologist and CTO, Counterpane Charles D. Seaman, Citizen of the United States, Marietta, Georgia Peter M. Shane, Ohio State University Clay Shirky, Interactive Telecommunications Program, NYU David J. Smith, Specialist of Distributed Content Distribution and Protocols, Michigan State University Michael E. Smith, LXNY Richard Stallman, President, Free Software Foundation Fred Stutzman, Ph.D. Student, UNC Chapel Hill Peter Suber, Open Access Project Director, Public Knowledge Jay Sulzberger, New Yorkers for Fair Use Penelope A. Swanson, Head, Cataloguing Division, SFU Aaron Swartz, infogami Bernard G. Tomasso, Librarian (Retired), Port Byron (NY) Central School Rahul Tongia, Ph.D., Systems Scientist, School of Computer Science (ISRI) / Dept. of Engineering & Public Policy, Carnegie Mellon University Stephen H. Unger, Professor, Computer Science Department, Columbia University Jennifer Urban, University of Southern California, Gould School of Law Eric F. Van de Velde, Ph.D., Director, Library Information Technology, California Institute of Technology Tom Vogt, independent computer security researcher Quinn Weaver, Fairpath Communications David Weinberger, Harvard Berkman Center Moshe Weitzman, Open Source Software Developer Frannie Wellings, Free Press Adam Werbach, President, Ironweed Films Stephen Wolff, igewolff.net Brett Wynkoop, Wynn Data Ltd. John Young, Cryptome.org
Endorsing Organizations:
	Association For Community Networking (AFCN) The Center for Civic Networking Champaign-Urbana Community Wireless Network Chicago Media Action Computer Professionals for Social Responsibility Contact Communications The COOK Report on Internet Protocol Cryptome.org Dandin Group Fairpath Communications FreeCulture.org Free Press Free Software Foundation Hawaii Consumers Illinois Community Technology Coalition Internet Archive Ionary Consulting IP Justice isen.com, LLC mediAgora New Yorkers for Fair Use Old Colorado City Communications Podleaders.com Prometheus Radio Project Pulver.com Reclaim the Media Rosenlaw & Einschlag Teletruth U.S. Public Interest Research Group Washington Bureau for ISP Advocacy Wyoming.com

Please contact:

Seth Johnson
Corresponding Secretary
New Yorkers for Fair Use
275 Fort Washington Avenue
Suite 3C
New York, NY 10032
seth.johnson@RealMeasures.dyndns.org
(212) 543-4266
 

cc:	Representative Rick Boucher Senator Byron L. Dorgan Senator John Sununu Senator Ron Wyden
	Members of the U.S. Delegation to the World Intellectual Property Organization:
	Michael Keplinger, Senior Counselor, Office of Legislative and International Affairs, US Patent and Trademark Office Jule Sigall, Associate Register for Policy and International Affairs, U.S. Copyright Office, Library of Congress Ann Chaitovitz, Attorney-Advisor, Office of International Relations, US Patent and Trademark Office Malla Poor, Attorney-Advisor, Office of Policy and International Affairs, U.S. Copyright Office, Library of Congress

Attachment: Why Public Scrutiny of the Proposed Broadcaster Treaty is Needed

This joint statement is available online at: http://www.nyfairuse.org/action/wipo.xcast/xcast.jointstatement.htm

Subcommittee Recipients:
 

U.S. Senate
	Committee on the Judiciary
		Subcommittee on Intellectual Property Subcommittee on the Constitution, Civil Rights and Property Rights Subcommittee on Antitrust, Competition Policy and Consumer Rights
	Committee on Commerce, Science and Transportation
		Subcommittee on Science and Space Subcommittee on Technology, Innovation and Competitiveness Subcommittee on Trade, Tourism and Economic Development
	Committee on Small Business and Entrepreneurship
	Committee on Foreign Relations
		Subcommittee on International Economic Policy Export and Trade Promotion
U.S. House of Representatives
	Committee on the Judiciary
		Subcommittee on the Courts, the Internet and Intellectual Property Subcommittee on the Constitution Subcommittee on Commercial and Administrative Law
	Committee on Energy and Commerce
		Subcommittee on Telecommunications and the Internet Subcommittee on Commerce, Trade and Consumer Protection
	Committee on Science
		Subcommittee on Research Subcommittee on Environment, Technology and Standards
	Committee on Small Business
		Subcommittee on Rural Enterprises, Agriculture and Technology
	Committee on International Relations
		Subcommittee on Oversight and Investigations