Barney Frank

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. I yield to the gentleman from California.

Mr. FRANK

Mr. FRANK. Mr. Chairman, as was pointed out by the gentleman from Florida, the amendment of the gentleman from Wisconsin, unlike that of the gentleman from Florida, abolishes the doctrines of vicarious and contributory liability here. What that means is that if one is not the one who is actually playing the music, even if one is facilitating that in various ways through one's economic arrangements with them, we cannot go after them and they may have deep pockets. Here is the problem. If the United States Congress, in this, so substantially diminishes this notion of contributory and vicarious liability and exempts people who are making money by playing other people's music, or maybe showing other people's movies, or in other ways using other people's products, if we exempt them in some ways, we drive a hole in our efforts to enforce American intellectual property rights overseas that is enormous. Think what the People's Republic of China could do with the amendment of the gentleman from Wisconsin. All they would have to do is say, okay, we are going to take these principles that the American Congress has adopted; there will be no vicarious and contributory liability. If you catch the individual, that is fine; otherwise, no, there is no liability. And if it is only incidental to some other use, there is going to be no liability. We severely threaten our ability to protect one of the major sources internationally by which America profits, and that is intellectual property.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, I think the gentleman is right. We are talking about an existing obligation. But I want to talk about what it is all about. What we are saying is, if one earns money in part by playing music, then one should share some of that with the people whose music one is playing. There was reference to the fact that well, it might be played on one television on the local station and the network will charge in the long term; yes, because they want to make money off of it. Yes, the network makes money off the program, they sell advertising, and then the local people do it. This notion that there should only be one source of revenue for each program does not comport with reality. This is the principle: If one is enhancing one's own money-making ability, which is a good thing, by playing music and increasing the attractiveness of one's place, one owes some small percentage. The gentleman calculated that it would only be about 5 percent of income. Well, I do not think any of us think a 5 percent reduction in income is a minor or trivial matter. If we were talking about .005, maybe we would be in that category, but a 5 percent reduction in one's income seems to me a significant factor, and we ought not to be doing it. I want to stress one other very important point here which will cause problems if we adopt the amendment of the gentleman from Wisconsin. We spend a lot of time, overwhelmingly supported in this Congress, in trying to enforce American intellectual property rights overseas.

Mr. FRANK of Massachusetts. I yield to the gentleman from California.

Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, I think the gentleman is correct. We are talking about enforcing the existing obligation, and I guess if we agreed with the gentleman, we would have to assume that if the amendment of the gentleman from Wisconsin would pass, restaurant prices would drop, because suddenly they would not owe as much. I do not think anyone in this building believes that.

Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, if the gentleman is simply playing it in his office. Let me put it this way to the gentleman. There is a commercial nexus here. No, not every time one turns on the radio and someone else listens does one have to pay the fee. If one turns on the radio in one's office and people wander in to talk, one does not owe them a thing, and that is the point that some of the opponents I think are missing here. This is a charge for people who are charging the public to come in. Owners of businesses are not irrational, they do not do things randomly, at least not as a whole. When the owner of a restaurant plays music, he or she does it to enhance the attractiveness of the restaurant; it is part of the package of things that bring people in. And what we are saying is, yes, if you are going to use other people's work product to enhance the attractiveness of your commercial establishment, you should pay them something. I was surprised to hear this referred to as a tax. I thought a tax was when one collected the money for the government. I do not think enforcing an obligation that one private owner owes another is a tax. People play the music in the restaurants or elsewhere because it brings in more customers. If not, there would not be a problem. People say, well, it would cost more for the consumer. That is true. And if one could get one's food for free, it would be cheaper for the consumer. If one could get people to work for free, that would be cheaper for the consumer.

Mr. FRANK of Massachusetts. I yield to the gentleman from Indiana. A microphone will probably help. The gentleman will not be charged for using it.

Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, to begin, I want to answer the question posed by the gentleman from Indiana about whether Members of Congress who play music when people are on hold are paying ASCAP. My understanding of this bill is that you incur that obligation if you are charging people, that is, if you are selling them a meal. So I assume those Members who have charged people to call them would owe ASCAP money. So if you have a separate line for contributors, then you better talk to ASCAP. For those of us who do not charge our constituents to call us, I think we are probably not in this situation. Although I do not play music on my phone, I do not sing or dance for my constituents, I have more mundane services I try to perform for them. But I would say to the gentleman, if you are charging people to call you, then you better be in touch with BMI and ASCAP.

Mr. FRANK of Massachusetts. Mr. Chairman, on this question about whether or not this is a compromise, and the gentleman has mentioned our late colleague Sonny Bono who worked so hard for this, he frankly thought this went much too far. He wrote a letter to the Registrar of Copyrights expressing his opposition to the notion of giving away on the square footage that he felt it might undermine our international negotiating process. I say that simply for those who would deny that this is a genuine compromise. There were people who were strong supporters of the original bill who thought it went too far. Mr. Chairman, I am supportive of it because I think it is a reasonable approach, but I do want to validate the point he made. This is a genuine compromise. Mr. Bono in fact thought it had gone too far.

Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield?

Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the last word. Mr. Chairman, the gentleman from North Carolina (Mr. Coble) is right. It is not controversial and there is no opposition.

Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself as much time as I may consume. Mr. Chairman, I am delighted to appear, along with the gentleman from North Carolina, chairman of the Subcommittee on Courts and Intellectual Property. I should note that this bill is also strongly supported by the chairman and ranking member of the Committee on the Judiciary. The responsibility to protect intellectual property is a very important one. As the gentleman from North Carolina has indicated, there are both cultural and economic reasons for doing so. The cultural reasons are probably more familiar to people, so we stress sometimes in this debate the economic reasons, not because we think the cultural reasons are less important, but the economic reasons are not always fully understood. In an evolving world economy, there are areas where Americans will do less than they have in the past. We will make unsophisticated products in far less amounts than we used to in an internationally competitive world. We all know that. People can lament it, people can support it, but it is an unchangeable fact. There is simply not going to be in the future, as there already has been, a diminution in American products of a relatively simple and uncomplicated era. On the other hand, America's comparative advantage in the world has been growing in the intellectual property area. We not only enrich much of the rest of the world culturally, but we enrich ourselves economically by the production of songs and movies and a whole range of other things. Much of our effort is, in fact, to protect our intellectual property against theft overseas. Members are familiar with this in the cases of piracy and counterfeiting. What we do here is to try to make sure, in part, that the people who do the actual creation share in these riches. And they are not people who are in the multibillion dollar category exclusively and, in fact, not even primarily. Frankly, for the wealthiest of the creators and performers, the additional copyright term is relatively unimportant. This becomes important precisely for those who make a living as a song writer, but do not get rich at it, who make a living in these areas. What we do here is to enhance the stream of income that goes to support their creative efforts. One part of this bill that is particularly important, that was worked out in a bipartisan way, in fact, says, in cases where the creative person, the song writer, the artist, the writer of the book, where for a variety of reasons that person may have signed away some of his or her rights, to the extent that we are creating a new set of values here in this 20-year extension, we have urged that this be renegotiated and that the creators be given a share of the additional 20 years. We will be monitoring that carefully. I am confident that we will see the creator is better treated. Yes, many people write songs and write books because of their love of the creative process. Love of the creative process is a great thing. But great as it is, it is kind of hard to support a family on it. It is kind of hard to sustain that. What we are saying is, we want to encourage creativity, not simply as a hobby, not simply as something that people who are independently wealthy can do on their own time, but as a way for people to earn a living to support themselves and their families. This bill is an important step precisely for those who are not in the wealthy category, precisely for those who are trying to earn a living day-to-day by writing songs, by writing books. This enhances their ability, and it particularly is relevant when we talk about the 20-year extension, about their obligation that they feel to deal with their families. We are talking here about people earning and then being able to transfer to their families, to later generations, this kind of writing. It is a very important piece of legislation. There is an overwhelming consensus on the part of the Committee on the Judiciary, which as some of you might have noticed is not always united. The Committee on the Judiciary has, indeed, recently been overdescribed as a source of contention and as a place for fighting. I must say that, having served on the Committee on the Judiciary for 18 years, I have yet to see the first pie thrown. I keep reading with some disappointment that it is a locus for food fights. They seem to have them when I am absent. I am going to insist that I be invited to the next one; I have got my own seltzer bottle, and I am ready to come. But precisely because the Committee on the Judiciary is composed of people who are prepared to engage in the most vigorous democratic debate when issues divide us, I think it is noteworthy that here there is an overwhelming consensus that for cultural reasons, for economic reasons, as a matter of fairness, as the gentleman from Florida was saying as I came in, we have come forward with a bill that protects the right of the creative people in our society, who so enrich the rest of us, to benefit some from that creativity. Mr. Chairman, I reserve the balance of my time.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, if the gentleman would allow me, as he is making clear from reading this, nothing in here deals with the ongoing responsibilities of the Department of Justice, which was the stated purpose for this funding from the chairman. Maybe the chairman thinks it is for one thing and the Speaker is, to use his phrase, saddling him with another purpose. There ought to be a public hearing. I would think the ranking minority member ought to have a chance to go before the committee and talk about that money, whether it is needed, what it ought to be used for.

Mr. FRANK of Massachusetts. I would ask the ranking minority member, has there been any conversation on the part of any member of the majority, from the Committee on the Judiciary or elsewhere, with the gentleman dealing with how we might respond to Independent Counsel Starr?

Mr. FRANK of Massachusetts. Mr. Speaker, the point is that the justification that the chairman mentioned, the consultations that have been held with staff of the minority and the majority, apparently are irrelevant to the request tomorrow. So I would hope, and I would think the ranking minority member would agree with me, that we could get the Committee on House Oversight to hold off voting this kind of money until there could be a public hearing. There appears to be a fundamental confusion, at best, about $1.3 million. Is it money that is to redo the investigation of the independent counsel? Is it money to check up on whether the Attorney General has appropriately dealt with the independent counsel? Or is it for the reauthorization of the Justice Department? What the chairman told us today was one justification, but the letter that he and the gentleman from Georgia (Speaker Gingrich) sent to the chairman of the committee is entirely about something else. We ought not to have $1,300,000 so casually used. We also ought to stop what appears to be a two-track operation in which the ranking minority member is told one thing about the operation of the Committee on the Judiciary when other conversations are going on. There is a partisan tinge to this which is inappropriate when dealing with the most significant things we can deal with. Mr. Speaker, I yield to the gentleman from Michigan (Mr. Conyers).

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, will the gentleman yield?

Mr. FRANK of Massachusetts. Mr. Speaker, I thank the ranking member, and I think he is performing a very important service. I know as the second ranking minority member that neither he, I, nor any other Members have been consulted. We have read a lot in the paper about what the Committee on the Judiciary was going to do, what it would not be allowed to do, how it was going to be bypassed. To have this funding request come forward, it is over a $1 million, some of which would be presumably assigned the minority, with no consultation is a problem. And the problem is compounded because the chairman of the committee did say there would be consultation, but the consultation he discussed was on a subject that appears to be different.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, I am going to vote in favor of this resolution. Let me say, first, that I think the predictions of chaos and gloom are mistaken. If we were to vote this resolution and begin an orderly process of involving the courts and requiring this Congress to face up to its responsibilities, nothing would happen precipitously. We would have plenty of time to deal with it. I am voting for the resolution for a couple of reasons. First of all, I have consistently, since being here, taken the position that the President of the United States should not commit significant troop levels for prolonged periods of time without congressional approval. That is whether I agree with the specific commitment or not. A lot changed for me in 1992. 1992 was a good year electorally, but it did not change my constitutional view that the President ought not to be making these commitments. To respond to emergencies is one thing, but a long-term commitment is another. It does seem to me that we ought to have congressional approval. I believe that with regard to Iraq, I would support military action against Iraq if they violate the agreement they made recently, but I do think it ought to come here first. I have a particular reason for supporting this. It is really made clear in the letter from my leaders and colleagues on the Democratic side. It said, ``Third,'' the third reason for voting no, ``If U.S. troops leave Bosnia, our allies will leave. There will be no NATO force in Bosnia without us.'' That is intolerable. That is what I find most attractive about this. We have got to put an end to the greatest welfare program in the history of the world. That is the welfare program whereby the wealthy nations of Western Europe, prosperous, strong, and facing no enemy, continue to be heavily subsidized by the taxpayers of the United States. If you lose your job in Germany or France or Italy tomorrow, you do not lose your health care. People in our districts who lose their jobs will lose their health care, in many cases. We just saw a reference to a bill, we tried our best to change it, that is not working, because people are priced out of the market. How come those countries can afford to provide health care to people who lose their jobs and we cannot? Because we do them the enormous favor of paying their military budgets. It made sense for the United States in the late forties to go to the aid of a weak and poor Europe facing a Communist threat. Today Europe is strong, the Communist threat has disappeared, and the only constant is that we continue to spend tens of billions of dollars on their defense. I accept our responsibility in South Korea, I accept our responsibility in Iraq, but why, what is written that says if we leave, they have to leave? Can Europe do nothing by itself? Are Germany and England and France and Spain and Norway and Belgium and Denmark, with a little help from Luxembourg, are they not all capable of keeping some troops in Bosnia, Bosnia, which is so close to them? We are going to be asked very shortly, in a supplemental appropriation, to cut funds for important American domestic programs to pay for those troops in Bosnia. They will not be making those cuts in Germany and England. By the way, when it comes to people in need, I am for it. I am going to vote for the IMF, if we can work out the right conditions. I want American money to go to help alleviate distress overseas. But I am not prepared to have the United States taxpayer continue to subsidize the nations of Western Europe, and encouraging in them the greatest sense of welfare dependency we have. We cut funds to American welfare recipients because they should be out on their own. So should Western Europe. I simply want to repudiate this notion, if U.S. troops leave Bosnia our allies will leave. Why? What is this, follow the leader? Simon says? Yes, it is true, probably in the short term, because we are the great enablers of European dependency. We are the ones who in fact allow the wealthy and powerful collection of nations that consist of Western Europe to act as if they were incapable of doing anything on their own. If we do not in fact take a lead, that is what will continue to happen. I am in favor of a continued presence in Bosnia, but it ought to be European. We will be in South Korea without the Europeans. We will do Iraq mostly alone. But the Europeans ought to do Europe. The fact is that what this resolution aims at is an intolerable status quo, a status quo in which the American people, taxpayers, are being asked to pay an undue burden. By the way, I am not suggesting that the answer is that Europe has to greatly increase its military. My conservative friends have made a very good important point: When a good is free, people will take more of it than they need. As long as the American taxpayer will extend for free to the Europeans the services of the American defense establishment, the Europeans will claim more of it than they need. They are threatened by no one. They have a responsibility. We will meet our worldwide responsibilities. I hope we will vote for this resolution, in fact to repudiate the third point in what my leaders have said. There is no reason at all why the United States should have to spend billions of dollars which we will soon be taking from our own domestic needs to subsidize Western Europe.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, last year in my Congressional Office in Bridgewater, Massachusetts, I met with an eloquent and dedicated patriot, Lynn Exe, who described to me her disappointment at the way in which the Fleet Reserve Association dealt with her insurance situation. At her request, I am entering into the Record her description of her objection, and her invitation to the FRA to respond. I do so as Mrs. Exe's Representative in the House, who believes that she as a citizen deserves the right to be heard. The First Amendment to the Constitution, to which we all pay homage, singles out a few basic rights for particular emphasis, and one of those is the right to petition for the redress of grievances. Mrs. Exe chooses to do so, and as her Representative in Congress, I am pleased to be able to do my constitutional duty and insert her petition at this point in the Record. Bridgewater Mass., January 21, 1998. Congressman Barney Frank, Dear Sir, My husband, John B. Exe, United States navy, retired, served his country with honor and dedication and retired after 20 years service. During my husband service he took out the FRA insurance plan. He was told by the navy that should he pay high premiums in the event of his death his widow would not have to pay any further insurance premiums. My husband had great love for his country and the navy. Therefore he believed that his country would honor the pledge they made to him and other service men. Shortly after my husband's death I received my first insurance premium, due and payable. Upon making enquiries I was told the funding had run out. Later I was told by a representative of FRA that the navy had told them to stop paying widows and to put funding into HMO's. This is a lie still being told our service men and retirees. In other words our service men do not deserve the truth. Once again this country has broken faith. Should this happen in Bosnia, Iraq, Mongolia the United States would call this genocide. I call what the United States has done genocide against widows of service men in the United States. A US judge ruled that retirees can sue the government for breaking the promise of free lifetime health care. Now as usual the navy has once again proved inept with the closure of military bases dependents now have to go to an outside pharmacautical CO. Which has not been organized completely a dependent obtaining meds through mail order often have to wait two to three weeks. God help our heart patients. Also, after submitting prescriptions which are being returned due to changes which are not notified of this causes another wait for the patient. It would appear the navy had knowledge and plenty of time to organize instead of which they appear to create confusion and more disorganization. Does anyone really care my words are just a whisper, but I am sure they will eventually become a loud roar. And many more people will become aware of tactics which the government and Untied States Navy have done their best to keep secret. The genocide to our retirees and their families must

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Madam Chairman, I move to strike the last word. Madam Chairman, I rise to disagree with the gentleman from Pennsylvania, but first, to praise him. This bill first came to my attention when I chaired the relevant subcommittee several Congresses ago, and I began to move on it. I want to pay tribute to the gentleman from Pennsylvania, because it is his determination, as chairman of the subcommittee, that got us to this point. I think there is need for legislation. He showed a great deal of diligence and brought it forward. But I believe in the interests of getting legislation we ought to be adopting the amendment. I will acknowledge that when I brought the bill out it looked like this, when we had it in committee, and generated a lot of opposition. At the time the opposition was so strong, and that was why it did not get anywhere. I believe we will run into the same wall of resistance if we do not make some changes. I originally got interested in this subject as the result of unfair decisions by which disabled people were denied disability benefits, in conflict with court opinions. That was something that began under the Reagan administration, and I must acknowledge that it, sadly, continued under the Clinton administration. I felt conscience bound to continue to support this bill, because I had originally dealt with it when it was a Republican administration, and it seems to me the same rules ought to apply to a Democratic administration. But I should also acknowledge that virtually all of the discussion and evidence I have seen on this bill, having been through hearings on it and been through debates, had to do with the denial of benefits, most particularly through the Social Security Administration, where it seemed to me the pattern had been the most egregious. While the Social Security Administration has from time to time, and the various administrations, promised us they will stop doing this, I do not believe them. And since we do not have a Secretary General of the U.N. to go get them to sign an agreement, I think legislation is necessary. So with regard to people who should be beneficiaries of subsistence dollars, yes, one cannot allow the nonacquiescence policy, because it does damage to individuals. But I must acknowledge that in all of the hearings I have been at, the discussion focused on benefits. At the most recent full committee markup some other agencies finally awakened to this. Maybe they had not taken it seriously before. It is to the credit of the gentleman from Pennsylvania that his diligence brought the bill forward and made them focus on it. The Securities and Exchange Commission and some other agencies expressed some problems with the bill. I agree, we have tried to deal with them. The gentleman from Pennsylvania has outlined some ways to do that, but I do not think we have done it fully yet. I do believe very strongly that both in terms of the information that we have had about the bill and the impact, there is a difference between nonacquiescence when it denies beneficiaries who are desperately in need of the benefits they should get, and the questions involved the Securities and Exchange Commission, the National Labor Relations Board, where we are not talking about anything quite so desperate, and where there is a legitimate right to relitigate. The gentleman from Pennsylvania acknowledges this. He has from the beginning. Yes, we do not think that once a certain number of circuit courts have decided something, that is it forever. Even the Supreme Court of the United States has been known to reverse itself and within a fairly short period of time. The dilemma for us is how do you work out a method of protecting fairness for individuals without preventing legitimate relitigation. That is part of our process. I believe that there is a compromise between this amendment and the bill that can deal with it. I do not think we have time to work this out now. I would hope if this amendment were adopted we might be able to revisit this before the bill finally went to conference. But I can say this, if the bill goes forward as is, I believe it will be vetoed. It might be vetoed in any case, because this President, as his Republican predecessors, does not like the idea of Congress mandating that their agencies follow the law. It is more of an executive-legislative dispute than it is a partisan one. The point I would make to my friend, the gentleman from Pennsylvania, who I honor for his work on this, is this: if we pass it in this form and it is vetoed, we cannot override. If we accept the amendment of my friend, the gentleman from New York, and leave open the possibility of working out some other method of dealing with the agency questions of a broader sort of litigation, the SEC and NLRB, then we will reach a point where we can override a veto. But if the only thing we can get would be what the amendment would be limited by my friend gentleman's amendment, it would be an enormous accomplishment. Because I would remind everybody again, the impetus for this bill came from actions of the Social Security Administration. We are dealing here with people who are disabled. They are least able to relitigate, least able to hire a lawyer to get the benefit of a court opinion. Where we are talking about litigants in the NLRB situation or the SEC situation, even if they have to go to court, they are better able to do it.

Mr. FRANK of Massachusetts. So, Madam Chairman, there is an urgency to providing this protection for the recipients and benefits, which is not the same as for more sophisticated, better financed litigants who were dealing with public policy in the field of labor law, securities law, et cetera. I would hope the amendment would be adopted. I would hope to work with the gentleman. I must say I was almost surprised the bill came up too soon. I think one of the issues was that we had some time to fill. I was hoping we could have worked a little bit more on some amendments. Faced with this choice now, I think it would be important for us to adopt the amendment because, otherwise, we run the risk of a nonoverrideable veto that would deny the people whose plight led us to get into this years ago, the beneficiaries of disability programs and others who were being hurt. I do not want to put their right to get the benefit of this good legislation at risk, and that is why I hope the amendment is adopted.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, reclaiming my time, have I? I do not remember. I do not remember whether or not I have voted for a sense of Congress resolution.

Mr. FRANK of Massachusetts. Mr. Speaker, reclaiming my time, what I am trying to say is that not being able to think of anything to say himself, borrowing a wholly irrelevant comment from the Vice President does not seem to me to advance the gentleman's argument. Because the argument is one, the gentleman from Arizona is simply wrong when he claims that this has anything to do with saving $285,000. It does not. It does not save a nickel. A judge ordered that the money be paid. Now, the Majority wants to make some political hay. They know better than to actually defy the judge's order. They have not offered a resolution to defy the judge's order. So what they tell us is a resolution which it is the sense of Congress that the judge's order ought to be defied, knowing full well that no one is going to defy it. They claim in this that they are going to be saving some money. In fact the only impact this debate will have on the Treasury is the extra few thousand dollars it will cost us to print this silly debate. I thank the gentleman from Massachusetts for yielding me the time.

Mr. FRANK of Massachusetts. Mr. Speaker, is there any coincidence to the fact that the gentleman is not running again that he brings up the pay raise?

Mr. FRANK of Massachusetts. I would ask the gentleman if I could have a couple more minutes, because they are not doing anything with it.