Publication Date

November 1, 1997

William Ferris May Head NEH

The president has announced his intention to nominate William Ferris, the founder and director of the Center for the Study of Southern Culture at the University of Mississippi, to be the chair of the National Endowment for the Humanities (NEH). Sheldon Hackney, who completed his four-year term as head of the agency, has returned to the University of Pennsylvania where he will teach history. Ferris, widely respected for his scholarly books and documentary films, has said the nomination was quite unexpected but that he was greatly honored and had the highest admiration for the endowment and its work. Senator Thad Cochran (R-Miss.), who has known Ferris for 30 years, said that he expects the confirmation process to move quickly.

Until the new chair is confirmed, Bruce tan, the Assistant Secretary of Commerce and the Commissioner of Patents and Trademarks, will be the acting chair of NEH. Because Lehman will retain his assistant secretary and commissioner responsibilities, Juan Mestas, deputy chair of the NEH, will handle the day-to-day management of the NEH. A recent interpretation of law by the Justice Department requires all acting heads of agencies to have been previously confirmed by the Senate.

Hearing on Electronic Copyright Piracy

On September 11 the House Subcommittee on Courts and Intellectual Property held a hearing on HR 2265, the "No Electronic Theft Act," which would expand current law to cover willful piracy that may cause serious commercial harm despite the infringer's lack of a profit motive. The bill would impose criminal penalties on any person who willfully infringes copyright by reproducing and distributing copyrighted works with a retail value of more than $5,000. In his opening statement, Rep. Barney Frank (D-Mass.) said that this is a nonpartisan, nonideological bill that intends to make clear that theft is not acceptable and that those who show off their ability to use the new technology, without seeking financial, gain but in a way that results in serious theft, should be punished. The bill also focuses on software piracy.

Several witnesses pointed out that this bill is a response to the 1994 decision in the U.S. District Court case of the United States v. LaMacchia, in which a young MIT student loaded a large volume of copyrighted material onto the Internet, making it available to anyone with a modern. Because the student’s conduct was considered “malicious mischief” rather than intended theft, he was not charged with violating the copyright law.

Mary Beth Peters, the register of copyrights, supported HR 2265, but noted that some clarifying language would be helpful to ensure that there are no "unintended negative consequences." She suggested more specific language to describe "serious commercial harm" so that the act would not criminalize minor, isolated instances of willful infringement. She noted that educational institutions with conscientious copyright policies in place could not be prosecuted for "willful" infringement of copyright.

Bill to Clarify Copyright Issues in the Digital Age

On September 3, Senator John Ashcroft (R-Mo.) introduced 51146, the Digital Copyright Clarification and Technology Education Act of 1997, which appears in the Congressional Record for September 3 on pages S8730-2. Ashcroft said in his floor statement that the administration’s legislation for implementing the World Intellectual Property Organization treaties does “not provide a comprehensive response to the many copyright issues raised by the flourishing of the Internet and the promise of digital technology.” He stressed the need to balance the protections for the creators of content with those for the users of copyrighted information. His bill deals not only with the liability concerns of the online providers but also with the use of digital technology for educational and archival purposes, with sections on distance learning and copying for preservation purposes. The Ashcroft bill makes clear that the fair use doctrine in the Copyright Act should apply regardless of the manner in which the material is distributed.

Plan to Open Nixon Tapes Stirs Criticism

The National Archives announced in the September 2 Federal Register its intention to open (on October 16) 154 hours of tapes comprising approximately 436 conversations that were recorded in the Cabinet Room of the Nixon White House from February 1971 to July 1973. While Archivist John Carlin has praised the Nixon estate’s cooperation, historian Stanley Kutler, who brought the suit that resulted in the negotiated settlement providing for the opening of the tapes, is not pleased with all of the current developments. Kutler points out that last November when the archives released 201 hours of the “abuse of governmental power” tapes, 200 segments, amounting to about one hour, had been withheld because they included classified national security information. Those 200 segments have recently been declassified under Clinton’s new executive order and were ready for release, according to the Washington Post. However, the Nixon estate lawyers objected. It now appears that the release of the additional one hour of “abuse of governmental power” tapes may be postponed for several years. Nixon lawyers are insisting that the remaining tapes be released in chronological order, despite the fact that the negotiated agreement calls for the “abuse of governmental power” tapes to be released first.

Decision on IRS Recordkeeping Appealed

On August 21 Judge June Green of the United States District Court for the District of Columbia ordered that the case of Tax Analysts, the American Historical Association, the Organization of American Historians, and the Society of American Archivists v. The Internal Revenue Service and the National Archives (CA No. 97-0260) be dismissed. This case challenges IRS’s compliance with the Federal Records Act and the National Archives’ oversight and enforcement of those laws. The plaintiffs charged that the IRS has not adequately preserved and managed its policy files and historical records and has not transferred them to the National Archives, making them available to the public. The IRS has placed almost none of its administrative and policy records for the 20th century in the National Archives and has not allowed the staff of the National Archives to see its records.

Judge Green's order to dismiss was based on the finding that the case was "not ripe for judicial review" because there is an ongoing interagency process to improve the IRS's record management program, and the issues may be resolved without judicial intervention. Furthermore, she asserted that the case does not involve the destruction of any records. In 1995 the National Archives conducted an evaluation of the IRS's existing records management system and made 58 recommendations for improvements. The IRS claims that 47 of the 58 recommendations have been met.

On September 3 the plaintiffs filed a motion asking the court to alter or amend the decision to dismiss the case. The plaintiffs stressed that the IRS should allow archivists from the National Archives to see IRS documents to offer ad vice on which records should be retained for their historical value. Judge Green's August 21 decision stated, “Under the Internal Revenue Code and case law, the IRS may not legally show such documents to NARA…." The plaintiffs contend that the IRS has held an overly expansive interpretation of this section of law, claiming that any records that mention tax returns are considered confidential even though they may be policy-related documents that include no information about a specific individual's tax returns.

A key portion of the plaintiff's motion to amend the August 21 decision cites a July 8, 1997, decision by the same court that concludes that the IRS has misused the law to shield information that the IRS itself admitted was not protected by the law. The plaintiff's motion states, “The law in this Circuit now squarely disapproves IRS's contention that the least smidgen of return information in a document infects it in its entirety and that IRS may refuse to disclose the non-return information in such documents.1J The plaintiffs are specifically asking to be permitted to continue research regarding the IRS's interpretation of the law and its efforts to comply with all of the National Archives recommendations for correcting the deficiencies of their recordkeeping policies. A response from Judge Green to this motion is expected in late September.

Disposal of Okinawa Films Contested

On August 29 Judge Ellis of the United States District Court for the Eastern District of Virginia held a hearing to consider whether the case of Seiko M. Green v. the National Archives (CA No. 97-0146-A) should go to trial. In this case Green, a historical researcher, was researching films obtained through an FOIA request on the U.S. occupation of Okinawa when the National Archives informed her that the records were being packed to give to the Okinawa Prefectural Archives. The motion picture film collection being used by Green consists of approximately 2,185 16-mm films contained in 55 boxes. Green claims that the National Archives’ decision to dispose of these records was inadequate and misleading because it was based on an erroneous description of the records, stating that there were duplicate; copies of the records and giving the wrong dates. The National Archives claimed that judicial review in this case was not appropriate and that the decision was “based on the considered judgment of the Archives’ professional staff.”

Judge Ellis dismissed researcher Green's complaints regarding inadequate notice in the Federal Register and claims of violation of the Freedom of Information Act and focused on the issue of the validity of the appraisal. The National Archives’ decision to dispose of the records was based on an understanding that these films were for the period 1944-61. Plaintiff Green contends that virtually all of the films are from the period 1960-72. The National Archive claims that the films simply depict local life on Okinawa and its neighboring islands, but the plaintiff argues that many of the films chronicle United States military and diplomatic activities, including chemical weapons operations, trials of political activists, and the United States Army’s control of a civil government and economy in an occupied territory for two decades. The plaintiff stresses that there are no duplicate films. Furthermore, the plaintiff’s brief states that the audiovisual archivist’s recommendation to dispose of the film was based on a review of only a few seconds and that the archive conducting the appraisal was not audiovisual archivist, had no experience or training in records appraisal, no expertise in the relevant historical period, and had difficulty understanding the Japanese language, which was used in the labels and soundtracks for many of the films.

The judge is focusing on whether the National Archives was properly informed and made accurate assumptions about the nature of the records. He said he does wish to evaluate the historical significance of the films. He asked each side to submit a brief by September 9 on whether the decision was “arbitrary and capricious and procedurally defective." At the conclusion of the August 29 hearing, the judge decided against having oral arguments and will make the decision based on the information provided by the additional briefs.

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