Out of concern that the Digital Millenium Copyright Act went too far in restricting fair use in the digital era, I have drafted and introduced along with John Doolittle of California H.R. 107, the Digital Media Consumers’ Rights Act. Among other objectives, the bill would confirm that a person would not be deemed to have illegally “circumvented” technical protection measures guarding access to copyrighted works under Section 1201 of the DMCA as long as he or she had no intent to infringe the copyright in the work. Our bill also embodies the Supreme Court’s Betamax standard to insulate from liability hardware and software that is capable of substantial noninfringing uses. We also create a broad scientific research exemption to the DMCA to address the “Felton” circumstance. Our bill would do nothing to change the definition of fair use or to address the scope of its protection, as defined by the courts. We would simply assure that traditional fair use privileges continue with respect to digital media. Nonetheless, copyright owners have asserted that the bill would essentially legalize all hacking and all hacking tools.
In legislative fights, opponents of a bill often overstate their concerns with it. But even such attacks occasionally contain a grain of truth. As legislators, we have to sort through articulated positions and make judgements about what is right. In this case, we think we have gotten the balance right in carefully crafting our legislation. I would welcome thoughts on whether our approach makes sense and whether there are approaches we ought to have in mind as we move forward in the legislative process. For more information on H.R. 107, please visit my website.
In my arguments before the house, i would most definitely use the fact that the original dmca states that in no way shall this provision detract from fair use..
i would note the fact that that important point in the bill designed to protect fair use has not been effective in its aim, and that your bill simply makes that statement effective through different language.
I believe the argument that it allows content creators to regulate consumer electronics by preventing interoperability is a solid one.
For those who charge it allows “piracy”, it is easy to say that as long as they place ANY content protection on their releases no matter how easily circumvented, the charge of criminal circumvention could be levelled against anyone they catch redistributing their work.
I would also use my example of DRM combined with currently overbroad anticircumvetnion law.
“It equates to someone trespassing on your propterty, entering your house, and replacing the locks on all your doors. Of course, in today�s analogy, youre breaking the law by smashing down the doors or calling a locksmith to get back in to sleep at night.”
These arguments are compelling, which is why i am wandering what precisely precipitated this reaction from the house judiciary:
“We strongly oppose the substance of H.R. 107. This legislation would eviscerate a key provision of the Digital Millenium Copyright Act (DMCA), which is successfully protecting copyrighted works and providing consumers access to more digital content than ever before. In fact, a DVD player is now as common a household item as the VCR was 15 years ago precisely because of the DMCA. H.R. 107 would undo a law that is working and destroy the careful balance in copyright law between consumers’ rights and intellectual property rights.”
– what consumer rights? i suppose a balance is struck by placing both people on one end of the seesaw?
“DMCA), which is successfully protecting copyrighted works and providing consumers access to more digital content than ever before.”
who said they would provide less unless they were allowed to legally prevent people’s fair use rights?
I personally think that price is too high, and i don’t want to pay for their work if this consumer right is the price.
Here is a good example of how the anticircumvention clause has been abused from {http://msl1.mit.edu/furdlog/index.php?p=2099}
“It seems that Capitol Records has some sort of new copy protection system, that automatically, silently, installs �helpful� copy protection software on MacOS and Windows as soon as you insert the CD into default systems. I�m not sure exactly what it does yet, but I am sure regreting actually purchasing said media now� they don�t deserve my money if they choose to pull stupid stunts like this. Installing software without your permission sounds like viral malware behaviour to me. I certainly hope the AV companies put signatures into their products for this crap.
They include some sort of uninstaller buried on there for Windows, but I see no such thing for MacOS.”
Precisely the arguments I have used. In fact, if the DMCRA passes, anyone who circumvents to infringe will be guilty of 2 violations, the act of circumvention and the infringement.
Judiciary is protecting its jurisdiction to a large extent. I drafted the bill to be referred to the friendlier House Committee on Energy and Commerce.
As much as i admire the fight, i see too much opposition and too little time this year. With how strongly i hear representatives and especially senators speaking out against “piracy”, i have trouble seeing this bill passing without serious changes of heart.
A lot of people dislike what is going on, but as a university senior i must comment that many people are very disheartened about the idea of writing congress. The idea of the “wasted vote” and the “wasted letter” are undermining our democracy. Unfortunately, some of the responses i have received have supported this idea, but one letter i received back from a ms. Lofgren has been encouraging.
Unfortunately, the most vocal proponents of jailing millions and outlawing technology are particularly hard to access.
While I applaud your attempts to draft reasonable limits or exemptions to the DMCA, Mr. Boucher, I’m not sure that in a practical sense they would amount to any significant change in the way the DMCA is currently being used in its most heinous manner, which is to say as a threat. “Intent to infringe” is something that has to be proven in court, but, especially in this day and age, few lawsuits ever make it to court. The DMCA is more easily used as a threat than a real club. Your proposed amendments would lessen the ability for it to be used a real club, but not substantially lessen its power as a threat.
I readily recognize that the problem I’m discussing is not so much created by the DMCA itself, but rather by the nature of litigation costs (in both money and time) today. And it’s a problem that is exacerbated when one party has significantly more resources than the other, which is often the case when the threat of lawsuits is used as a business method. But this problem is intricately tied to the most controversial copyright issues of our day, and needs to be addressed in any legislation that truly attempts to maintain a copyright balance among individuals.
Unfortunately, I’m yet at a loss how to create a solution to this problem, but I would start by repealing the DMCA entirely. (If only that were an option.) Where not to start is by making it easier for copyright holders to sue others, or giving them more avenues to do so, and that, in a nutshell, is why the DMCA seriously disrupts the copyright balance.
The year is in fact short, but we have just begun the fight. We need to build strength step by step, and no effort in that regard will be wasted. It may take a few years, but eventually, we will pervail.
Zoe Lofgren is a champion of Fair Use and the need for a balance in the IP laws between the rights of users and those of IP creators. She represents part of Silicon Valley. If you have a chance to vote for her, you would not be “wasting ” the vote.
As for giving up on Washington, that’s a truly self defeating stradegy. Like it or not, that’s where the rules are written. It’s better to be a part of the process by which they are made than merely being resigned to living with the consequences of other people, with different agendas , writing them. The reason the DMCA was passed in the first palce is that public interest and technology industry stakeholders were largely absent from the action.
I find the slogans unhelpful to inform these critical and subtle policy issues. It is one thing to promote public policies that deter “piracy.” But in so doing, we should take care that those policies do not promote technological and creative luddism.
As a threshold, we must note that “piracy,” is like so many marketing words: because it has no strict definition, every allegation of piracy is non-falsifiable. The fact of the matter is that “piracy” has existed since the Statute of Anne, and well before then in defiance of the publisher’s guild. You simply can’t have lived in a large city in the 80s or 90s without daily walking by somebody who was selling bootleg copies of this or that. Alas, the term “pirate” these days is widely alleged against everybody that makes any new uncompensated use of content — even if they already paid for that content or the copyright act permits the conduct.
But even when the term can be rationally defined, it doesn’t inform the question simply to label conduct piracy, or to state that it exists. Even to state that there is a lot of it. Compensation of today’s content owners is not the only policy necessary to promote progress. It is just as important –arguably more important– to facilitate and promote the creation and distribution of new works, even if the present content owners would rather that not occur.
Moreover, where remedies and protections are expanded well beyond those traditionally granted to authors, as in the DMCA and recent cases concerning secondary liability — particularly into the arena of technology, we begin to implicate yet another area of intellectual property policy. The content makers could not, for example, obtain patent protection on their encryption and decryption processes for basic DVD, it was not novel and they didn’t invent it. Yet, through the DMCA, any person who composes a jingle obtains patent-like protections for unpatentable inventions for an unlimited time (so long as they keep writing new jingles). And thus, we have to ask, not only whether copyright policies are offended by such legislation, but what of patent policies.
The PATENT act, like the Copyright act, is a carefully honed balance between a protective, notice and freedom-of-use functions, designed to promote progress, in the case of patents, of the useful arts. It not only provides what protections can be granted, but also what protections may not be granted. And this balance has proved essential for the ongoing working of commerce. Further, the particular set of remedies for patent infringement is circumscribed to be consistent with that policy?
What happens when jingle writers are permitted to assert patent-like protections forever, with remedies far broader than that ever permitted under the patent act? Of course, the technologies so implicated, no longer protected by sound policy, may wither and die.
Enter the luddite. I have written two parables to illustrate the point. The first story suggests how the copyright act might be used by someone who is actually hell-bent on stopping innovation and technology, without regard for copyright and patent policy, and how the day was saved only by the policy of Sony. The second story illustrates how the DMCA might be exploited in a novel way to give the luddite new hope.
Of course, there are no copyright luddites — such creatures are as ephemeral as the evil pirates. On the other hand, these archetypes are useful to weight the costs of our policies. Sure, there are those who wish to have free content notwithstanding copyright protections, and those who would commercially exploit it. But there are also those who wish to protect uncopyrighted and unpatented commercial infrastructures in which they have significant commercial investment advantage against the introduction of novel technologies, without regard to the scope of copyright protection. The former are like the pirate archetype, and the latter are like the luddites.
Something else to bring up is how often the DMCA is used in cases where there is no copyright interest involved whatsoever. Consider, for instance, the case of retailers using the threat of a DMCA lawsuit to try to prevent websites from publishing Black Friday, the day after Thanksgiving, sale information (Source). Another fine instance is printer manufacturers installing useless chips in their toner cartridges that happen to have encryption on them in order to prevent competitors from selling toner for their printers at a lower cost than they do (Source).
We could use more good people like you in congress, Representative Boucher. Thank you for your time,
BlackGriffen
“we should take care that those policies do not promote technological and creative luddism.”
i have to point out that while this comment is pointed.. it’s kind of funny to think about “technological luddism”, it’s kind of like a playboy magazine blessed by the pope.
life does have its wry humor =)
I do not live in USA, but it is a fact that laws like DMCA become a successful “export” towards other nations via Free Trade Agreements like the one that is being ratified with Australia. Could this law also help to export “fair use” concepts to other countries? For as long as copyright maximizing doctrines exist in other countries, there will be a strong pressure to increase the bar at the US, like when they passed the Sony Bonno Extension.
Shawn Abel:
I would gladly repeal the DMCA , but as you suggest that is not an option. Our effort falls within the realm of the achievable, ie. defang it as much as possible.
I have to believe that the threat of litigation would be dramatically lessened if circumvention devices were deemed appropriate as long a they have a substantial non-infringing use. That standard has created legal certainty sufficient to underpin the home recording industry, which has been a major conrtibutor the the US and global economy. That sensible standard from the Betamax decision was overturned by the DMCA for circumvention devices. I am trying to reinstate it.
Most engineers at tech companies with whom I have spoken say that the broad research exemption in our bill would be of help to them, and the Section 1201 provision to enable circumvention for non-infringing applications is essential to preserving fair use in the digital era. In the absence of making this correction, content creators are empowered to extinguish fair use at will for all digital media , much as they have already done to movies on DVDs.
Congressman Boucher,
I’m a strong supporter of your proposed bill. However, I think that the critics are largely correct – i.e. that it will effectively gut the anti-device provisions of the DMCA. Once there is a fair use defense to circumvention, and once the Sony standard is restored, then many technologies that are currently banned (e.g. DeCSS) will be legal because they will be capable of non-infringing (i.e. fair) uses. So, as a descriptive matter, I think the critics are right. (But unlike them, I think this is a good result).
This points to the difficulty of regulating technologies – the “all or nothing” nature. Because technologies can be used both for good and bad purposes, regulating technology will always be either over or under-inclusive. Given the choice, I’d rather err on the side of permitting technology to proceed (and forcing copyright owners to go after infringers directly).
I’m afraid I don’t have any compromise solution, given the above. Some folks (e.g. Mark Lemley) have proposed making it easier for copyright owners to sue direct infringers, thereby reducing pressure to regulate technology. Another alternative would be to permit fair use, but relax the Sony standard to capture more devices. I’m not sure that either addresses the concern you raise in your post.
By the way, thanks so much for participating in this forum!
Joe Liu
The new cable “plug and play” standards do exactly that by requiring encryption to the “point of delivery” on televisions, etc. (specifically attempts to lock out or mandate drm on pc’s capable of receiving cable signals)
I would like to add an observation which could be brought up regarding Joe Liu’s statement.
Because it is illegal to run a piracy ring and infringe copyrights, why would anyone have any qualms about creating/contracting/smuggling in a circumvention device to help them do it.
This law is not stopping huge piracy rings, as a recent massive bust in my local area has shown (the bust was of several locations which yielded at least 25 truckloads of allegedly pirated materials).
This law is an illogical attempt to “keep honest people honest”.
To bring up the WIPO treaties, Does not the constitution specifically speak of treaties with other nations, and not corporate bodies?
the WIPO is plainly a corporate body, a new species of multinational lobbying firm.
Andrew Greenberg:
An excellent point about using technical measures to expand the exclusive rights otherwise confered by basic IP laws. Your example of taking protection beyound that allowed by patents is apt, as is the use of shrink wrap liscenses to extend protection beyound the term and other limitations of copyright. Do you think a statute is called for saying that an IP holder may not use other devices to enlarge upon the basic IP right he holds?
Black Griffen has cited examples of a statute run amok, and don’t forget competitive garage door openers, yet another area in which the DMCA is being applied wildly beyound the intent of Congress. On this point we could get unaminous agreement even among my argusome colleagues: Congress did not intend that the DMCA would be used not for the protection of copyright but to stiffle competitors in the markets we have identified.
To Javier Peres:
Thank you for pointing out that the Bush Administration at the urging of the MPAA has begun putting DMCA-like requirements into bilateral trade agreements and insisting that other countries enact their own DMCAs in order to get US trade benefits.
I deplore this practice, but with this administration and USTR I’m afraid we are stuck with it.
I’ll take this opportunity to applaud Chile which pushed back and won the right to protect Fair Use in its bilateral with the US. That outcome should be a model for other countries. Maybe we will begin to see the reverse of the reaction you suggest–if enough countries insist on preserving fair use for digital media,perhaps eventually we will as well 🙂
“I deplore this practice, but with this administration and USTR I�m afraid we are stuck with it.”
From what i have read regarding foreign policy on kerry’s site, John Kerry as well has a big platform on exporting “respect for intellectual property” with free trade agreements.
If things do not change here, we will see this practice continue elsewhere, and then the presence of other DMCA’s used as an excuse based either on international reputation or “we should stay like them”.
Joe Lui:
My response to the argument that once batamax is restored for circumvention devices they will proliforate with a corresponding increase in piracy:
The determined pirate will find a way to circumvent whether we change the law or not. There was a time when you could get DeCSS on a T-shirt in college bookstores , which apparently were not intimidated by the notion that they were trafficing in circumvention devices. The current law mainly punishes the innocent who would like to skip commercials at the start of DVDs or back them up as a guard against digital rot. I really don’t think piracy would accelerate if Betamax is restored , but legimate fair uses of digital media would again be permitted.
I am reluctant in the extreme to begin tinkering with the Betamax standard which ( as long as we keep the Induce Act buried) applies to all non-circumvention recording devices. It has provided legal certainty and withstood the test of time.
If we capture more devices with it for DMCA purposes, we may have a hard time keeping the new test from applying accross the board.
I am enjoying participating in the forum, and was honored that Larry Lessig, for whom I have tremendous respect , asked me to do so this week.
I would like to point out that decss is far from banned.
It is available from websites here and all over the world incorporated into very flexible decryption tools.
I have a tool such as this, though it does not actually incorporate decss, but instead taps into the licensed code in my default licensed dvd player.
I have personally used this to take songs from my anime dvd’s which are not marketed in the united states.
Since my father is in the FBI, i’m pretty sure since i have not yet been arrested that i am unlikely to have anyone pound down my door and haul me away for that.
Have you ever spoken with Senator Leahy about this issue and do you think he could be persuaded to �see the light?� Watching his testimony during the committee hearing on IICA (INDUCE), it seemed to me that he realized his position didn�t make sense, but he kept rambling on trying to bring his thought process in line with the entertainment industry (to retain their largesse?) Do you think Orrin Hatch would support a bill that codified the Betamax decision?
Codifying the betamax decision would do no good unless it specified allowances in the anticircumvention clause however. otherwise, you simply have the same ruling on the basis of the offense of “circumvention” rather than infringement.
I didn’t ask you Mr. Wehr, I asked Mr. Boucher. Time to stifle yourself.
Congressman Boucher:
You asked, “Do you think a statute is called for saying that an IP holder may not use other devices to enlarge upon the basic IP right he holds?” I can answer with an unequivocal and categorical, “maybe.” We must begin, of course, with the observation that the Copyright Act, for one, already has express preemption language. Alas, the Courts have not seen fit to recognize this at the intersection of fair use and shrink-wrap agreements.
A great case-in-point is an issue dear to the hearts of IEEE: reverse engineering. Despite the nearly unanimous corpus of cases blessing reverse engineering as fair use, the Federal Circuit recently enforced a shrink-wrap “no reverse engineering” provision under state contract law. See Baystate Technologies, Inc. v. Bowers, 302 F.3d 1334 (Fed. Cir. 1993). Full disclosure: I was counsel of record for a Supreme Court amicus brief filed in support of Supreme Court review on behalf of the IEEE-USA, American Association of Law Libraries and the Association of Research Libraries.
Bowers put the issues you raise here in sharp relief. As Judge Dyk noted in his excellent dissent:
Because of the ugly facts in Bowers, it may well be best that the question of shrink-wrap preemption didn’t go up. Nevertheless, the uncertainty caused by the case, which unequivocally endorses no-reverse-engineering clauses, and I can attest from actual experience that it certainly is chilling. Hopefully, the courts will resolve this issue before too much –unmeasureable– damage is done.
There is a meaningful risk, as I argued in the brief, that the result in Bowers will drown the public benefits of Copyright in a sea of contract law. At the very least, it is unbalancing in the extreme of fundamental issues of intellectual property policy.
Now, that said, I think the question you asked may overreach. I have no problem at all with two parties directly negotiating to limit their respective rights in their best interests. The party with the content simply withholds his work from publication, except to those who knowingly contract to receive it. In this case, the disclosing party essentially abandons the benefits of copyright for the security of privately-made law.
My problem occurs when the work is distributed widely, relying under cover of copyright exclusive rights, and then a non-negotiated shrink-wrap agreement is used to limit the rights. In this case, the disclosing party has accepted the “quid-” of the copyright benefit, but is using the artifice of internet distribution technology to avoid the “-pro-quo,” the rights Congress reserved to the public. To me, this seems to embody precisely the intent of Congress in enacting the Copyright Act preemption clause. Add to this the idea that “-pro-quo” includes constitutional issues such as certain modes of fair use, and we begin to see the problem.
Thus, it seems to me that one excellent legislative solution would be a federal law that permits enforceability of shrink wraps, but only to the extent that the agreement does not overreach beyond reasonable provisions. Individuals are free to negotiate agreements beyond them, of course, its just that they cannot impose them on the public through shrink-wrap agreements. This would make clear and unequivocal the intent of the Congress to preclude the states from doing indirectly, under the illusion of contract law, what they may not do directly — the selective repeal of the Copyright Act.
The IEEE-USA has a policy statement on Non-Negotiable Terms and Conditions in the Sale or Transfer of Computer Software and Other Digital Works proposing an outline for such legislation. We would be grateful for any comments on the policy statement this forum might offer.
Well, in this case, andrew, would it not be sufficient to codify that copyright law supercedes contract law?
I am not a lawyer, so i was wandering if this would upset the overlap in some other area.
To Carla:
Pat Leahy is one of 4 co-chairs of the Congressional Internet Caucus . There are 2 in the Senate and 2 in the House ( I am one of the House co-chairs). Our role is to boost information technology generally and the Internet in particular. Pat is an avid Internet user and has played a helpful role in educating Members of Congress to its benefits.
On IP matters, people who usually are strong technology advocates sometimes find themselves on the side of Hollywood when IP owners and technology companies square off against each other. Pat tends to take each set of arguments as they come to him and make a judgment. On the Hollings technology mandate bill, for example, he lead the opposition in the Senate and is largely credited for stopping any forward progress on the bill. His co-sponsorship of the Induce Act is at the other end of the spectrum.
I have not broached the subject of HR 107 with Pat largely because I think that a companion Senate bill would be referred to the Senate Commerce Committee , just as my bill was referred to the House Commerce Committee. Pat is ranking member of the Senate Judiciary Committee. He does not serve on Commerce. We are in discussions with several prominent members of Senate Commerce about HR 107.
Incidentially, today’s Wall Sreeet Journal editorial slams the Induce Act and makes a pitch for codifying Betamax. I was glad to see the editorial.
Pat is a highly thoughtful Memeber who almost always reaches the right conclusion.
Alexander writes, “Well, in this case, andrew, would it not be sufficient to codify that copyright law supercedes contract law?”
I think that would be too much and not enough. At some level, it is also unnecessary: (i) the Supremacy Clause and the Commerce Clause of the Constitution already provide for some degree of preemption, even in the absense of specific legislation; and (ii) the Copyright Act Preemption Clause does likewise. I would hope in view of the constitutional issue involved in having copyrght override fair use that the Courts would “get it,” but it was not to be.
At any rate, it seems to me very dangerous to provide too much in the form of more general and absolute preemption language. The uneasy tensions between the laws of copyright, unfair competition, deceptive and unfair trade practices, trade secrets have been reasonably balanced over years of jurisprudence in most areas, and I think a broader approach (while it would provide me with a decade of work for me and my partners) would be unnecessarily disruptive. I also think that virtually any negotiated contract should be allowed — provided that the party who “opts out” of copyright give-ups likewise “opts out” of the copyright benefits. The problem, for me, is the overreaching in non-negotiated agreements. I am also fearful that it would not suffice, since courts, such as the Bowers court, permitted shrink-wrap reverse engineering despite all of the statutory and constitutional law suggesting to he contrary.
“Pat Leahy is one of 4 co-chairs of the Congressional Internet Caucus . There are 2 in the Senate and 2 in the House ( I am one of the House co-chairs). Our role is to boost information technology generally and the Internet in particular.”
As someone who seeks international titles and hard to find works which still fall under copyright but are not available either in my region or at all, i would like to see more of this particular aspect highlighted when p2p limitation bills are brought up.
This segment of shared files is not small. I could start my music player running, go on vacation for a couple weeks, and come back to it still running, and that is only what i enjoyed enough to keep.
Someone had to break a law in their nation to get it to me overseas even though my having it didnt harm the market, and it is entirely likely the same can be said for US works in other nations.
This is one of those hazy things swept under the rug when debates are made on the merits of these technologies which deserves more attention in my honest opinion.
Thanks, Andrew. I appreciate your sharing your experience with us. I’ll take a look at the IEEE’s position and outline of possible legislation. This is a most worthwhile focus of our discussion.
WALL STREET JOURNAL EDITORIAL PAGE: August 10, 2004
If you own a movie or record copyright, and someone else “induces” people to start infringing it, should you be able to sue the inducer? Senator Orrin Hatch thinks so, and it’s possible his bad idea could become bad law.
Granted, he’s trying to address a real copyright problem. Music labels and movie studios are playing a frustrating game of whack-a-mole, with new Internet file-sharing networks popping up faster than the recording industry can protest. The newest networks, including KaZaa and Morpheus, are run as for-profit piracy havens but have found ways to skirt copyright laws.
They display advertising on users’ desktops but make sure that individual users, rather than anyone in corporate HQ, handle the actual dirty work of infringing copyright. The network operators then claim to be shocked by the illegal activity of individual file traders�even though they’re well aware that their users aren’t swapping Shakespeare.
Trouble is, the facts don’t support the idea that legal action against these network operators would help in the larger fight against piracy. Napster’s court-ordered shutdown in 2001 might have been a symbolic triumph over intellectual property theft, but it caused only a minor hiccup in the supply chain for pirated media. The new firms that took its place (the ones that Mr. Hatch’s bill targets) are housed outside the U.S., which makes it tough to make them pay a court judgment.
Long after they’re gone, old copies of their software will allow new swappers to join the party. And even if none of these problems existed, there is already a second tier of file sharing programs like BitTorrent created by hobbyists who don’t profit from piracy, and make lean targets for lawsuits.
Which brings us to Mr. Hatch’s legislation, known as the Induce Act, which gives copy right holders a cause of action to sue anyone who “induces” the violation of their copyrights.
While it wouldn’t make much of a dent in the Internet piracy problem it’s designed to solve, it would unleash a wave of frivolous lawsuits. Makers of technologies ranging from computers and multimedia software to portable music players could find themselves in the crosshairs, on the theory that their wares encourage infringement.
Even if the industry’s major players showed restraint in using their new power to sue, technology producers would have to contend with the most litigious of copyright holders. Winning such suits, as legitimate technology producers hopefully would, is financially burdensome, especially to startups. The prospect of costly court battles would deter new investments in technology.
Mr. Hatch claims his bill would leave in place a Supreme Court ruling that protects the makers of general-purpose technologies from copyright liability. Even if he were right, the conceptual problem with criminalizing tools is inescapable. As long as the necessary legal umbrella protecting technology tools stays place, the shadier network operators will find a way to shelter themselves under it.
The better legal tools to stop file traders are hidden in plain sight, in pre-Internet U.S. copyright law. “Willful” infringement�when the copier knows, or should know, that he’s over the line�carries a statutory penalty of $150,000 per illegal copy. The content industry can also continue to sue individual pirates. With penalties this high, it doesn’t take very many suits to substantially increase the expected cost of pirating an album or film.
These suits aren’t popular with customers which is why music and movie companies are asking Congress for other ways of stopping piracy. But it’s high time providers and consumers alike bit the bullet and recognized that individual users who pirate content really do deserve steep punishment. That’s a better solution then creating more causes of action for the trial bar.
“The newest networks, including KaZaa and Morpheus, are run as for-profit piracy havens but have found ways to skirt copyright laws.
They display advertising on users� desktops but make sure that individual users, rather than anyone in corporate HQ, handle the actual dirty work of infringing copyright.”
I remember when the media was still giving coverage to the issue of p2p. They did a terrible job getting adequate cases on both sides. They would grab a concise and articulated argument against from the nearest handy copyright lobby, then put some kid on who had very little to say rather than someone who had given the issue heavy thought.
Then they began condeming everyone as “thieves” and “pirates” as if there were a single case which demonstrated this to be fact rather than legal speculation.
I will note the people who have major investment interest in record labels and movie studios also own most news sources.
“But it�s high time providers and consumers alike bit the bullet and recognized that individual users who pirate content really do deserve steep punishment. That�s a better solution then creating more causes of action for the trial bar.”
I have severe problems with this statement. Any individual who shares his content cannot be reasonably be considered to have significantly harmed the market. These people do not profit from sharing said content, and it actually costs them tremendous amounts in sunk and monthly costs to make it available.
The argument that collective activity of society should allow for such draconian punishment should be applied to speeding and to the vcr as well. After all, millions of people’s speeding causes deaths, and milliions recording using the vcr cost the movie industries lost sales as well.
I just want to backup what I have legally purchased. I just want to play back that song or video on what ever devise I own that is able to playback the file. I’m tired of feeling like I’m a criminal. Those of you out there with kids can relate to having to repurchase Harry Potter or Atlantis DVDs, etc. because the kids don’t have the dexterity to hold the disc safely, or are clumsy and drop it, or don’t rnotice they still have peanut butter and jelly on their fingers when they pick up that disc and place it into the player.
My other frustration is that I just want the movie to start playing, not all this other junk. I am infuriated that the content producers are able impose their will upon me by disabling fast forward or skip or what have you, and force the lovely “Function not permitted”. I bought a movie, not a commercial. And don’t try and argue with me that the commercials are subsidizing the price of the movie.
One question I would like to ask, I’m going to pick on iTunes but it is applicable to others:
Once copyright expires, if it is not perpetually renewed by Congress, what happens to the protected song sitting on my harddrive? Am I legally able to strip the encryption? I would say not, since the DMCA does not set any time limit on circumventing DRM. Please discuss…..
Congressman Boucher,
Your presence here has certainly heated up the debate and I for one would like to congratulate you on your courage and deep insights into the issues at hand. That said, I trust you read Prof. Wu’s white paper where he, very convincing IMHO, shifts the context of the debate from IP law to one of telecom policy. Do you agree with that thesis and, if so, do you see an end result where the media giants will in effect be forced into a “negotiated settlement”… particularly as it relates to opening up access to copyright akin to early cable regulation?
Mark asks:
Once copyright expires, if it is not perpetually renewed by Congress, what happens to the protected song sitting on my harddrive? Am I legally able to strip the encryption? I would say not, since the DMCA does not set any time limit on circumventing DRM. Please discuss.�.
Without purporting to offer legal advice on this point, I would suggest careful review of the statute itself and its legislative history. There are two prohibitions:
I would imagine that a 1201(a)(1)(A) violation would not occur if you stripped the technology off public domain content, for the work would not be protected under the Copyright Act. The problem is, how are you ever going to have the tools to do it? Nobody can sell it to you, do it for you, or so forth. So long as enough content users are out there continuing to make works encrypted using a technology, it is going to be argued that the decryption tools are “primarily designed or produced for the purpose of circumenting . . . controls [of] access to a work protected under this Ttitle.”
I haven’t done the research, but the answer to me, at least superficially, seems: (i) you aren’t liable for actually defanging the content; and (ii) nobody can give you tools to do so without liability until the circumvention becomes so obsolete that the primary purpose for those tools is to defang content then in the public domain.
And again, all of this assumes that the circumvented content so taken isn’t mixed with content not yet in the public domain. Of course, this isn’t legal advice — the devil is in the details, and you shouldn’t rely on the remarks of anybody –myself included– who hasn’t completely looked at the facts of your particular situation.
Thanks to Tom Barger for posting the Wall Street Journal editorial.
In answer to Mark’s question, I would argue that once the copyright expires in a work protected by DRM , circumvention may lawfully occur. The DMCA prohibits circumvention of a technical protection measure guarding access to a copyrighted work. While the theory is untested in court ,it seems to me that once the copyright expires, the work is no longer copyrighted and, therefore, the DMR is no longer guarding access to a copyrighted work as required by the statute. Moreover, even if some other interpretation is possible, I would be amazed if an action was brought to enforce the anticircumvention provisions in such a circumstance.
I’m glad Andrew and I both reached basically the same conclusion. I would add that my bill HR 107 would solve all of the problems posed in Mark’s posting and enable trafficing in devices with substantial noninfringing uses , solving the inability of getting circumvention tools posed by Andrew.
I also would add the disclaimer as Andrew has–free legal advice is worth just what you pay for it–particularly when it comes from a person who has not practiced law for 22 years, which is my situation.
Mr. Boucher, first I would like to congratulate and thank you for all of your efforts. It is a good feeling to be on the right side of history and you should enjoy it.
The main thought that I would like to convey here is that there are numerous dangers (unintended consequences) in chipping away at the DMCA and staying within �the realm of the achievable, ie. defang it as much as possible.� My fear is that we will lessen the impact of these laws on the public and the judicial system, thereby, avoiding the breakdown of the system. My position is that the intellectual property mechanisms currently in place are so broken that they have to be entirely eliminated and that any effort to lesson the negative impact will only help to keep them (DMCA etc.) alive.
I have been directly involved on the defense side of the current RIAA litigation campaign. Personally, since we know the minimum statutory penalties are not going to be decreased, I hope that the laws are made tougher and criminal penalties are included. This may achieve several advantages for the defense bar in these cases. It will open the door for people to have federal public defenders appointed and it will make it easier to move to stay the civil actions. The RIAA does not want to be in criminal court jurisdictions, particularly if they back the federal courts up.
We may want to give the RIAA more rope instead of reeling them in.
>> I would argue that once the copyright expires in a work protected by DRM , circumvention may lawfully occur
I would agree with you on this topic, except that these copyright have the effect of a ever-expanding band. We just have to see the Sonny Bono Copyright Term Extension Act to prove that once a group of people is determined to keep cash flowing, it’s not simply a matter of having the copyright expire like it should in a timely fashion, but really to have the copyright REALLY expire WHEN it was originally intended to expire.
I am currently in the really bad process of trying to find music from the ’30s for my grand father and to my great and utter amazement, most of the works are still copyrighted and are unavailable for my personal enjoyment, even if most of the groups who did that music are long dead … and their successor are deceased … and their great-grand-childrens are all elderly people or deceased
This is an exemple by comparison of what I fear from your argument, although I agree it is a valid one. This is only a small digression to point out that most of the music that have been commercially produced in the US of A since the creation of first mechanical music reproducing system is still copyrighted… and that most if not all the music that have been commercially created since my birth is still under copyright.
Alexander writes, �Well, in this case, andrew, would it not be sufficient to codify that copyright law supercedes contract law?�
As Andrew has already mentioned, the IEEE-USA (by the Intellectual Property Committee) developed several position statements and has been working many years on these issues. For example, the issue of whether federal IP law should be able to be waived via contracts came up long ago relative to the UCC-2B efforts (later called UCITA). This is apropros not just reverse engineering, or first-sale rights, but also the right to make archival backup copies.
As I recall (it’s been several years now), our position was similar to the McMannis (sp?) amendment proposed to UCC-2B that said that federal IP law should not be able to be waived except by a fully negotiated contract — and that click-wraps and shrink-wraps are definitely NOT negotiated contracts.
To Robert Young:
I have not read the paper you referenced and would welcome you setting forth a brief summary of its insights.
As for the entertainment industry being compelled by external forces to agree to negociated broad access to content , I suggest the following:
The record labels in my view should be having internal discussions now about the possibility of approaching the Congress with a proposal for a complusory liscense for access to music delivered over the Internet. P2P networks are here to stay. If we pass laws targeting them in the US ( which I will fight tooth and nail) they will simply move off shore to countries with which we do not have extradition treaties and perhaps not even normal commercial relations. In other words, they can effectively put themselves beyound the reach of US law and US influence. Some amount of music will be file shared even if the lables manage to get their entire inventories up on the web for lawful download ( not an easy task at present given the problems in clearing songwriter/publisher rights) in an attractive and user friendly format ( involving permanent and portable downloads and attractive pricing). Even if the lables decide to compete forcefully with P2P in this manner, some amount of music will be file shared . The question becomes, how much? What bite can the labels take out of the free market with their own attractive product? Would the economics of the balance between lawful product on the web vs. file sharing justify moving the entire Internet delivery system to a compulsory liscense? I doubt that there is enough data available at present to write this equation. Maybe in a year or two there will be. One thing is certain, Congress is unlikely to move toward a compulsory liscense for music delivery on the web until the lables come and ask for it and suggest the method of compensation in exchange for the liscense, eg, fees on computer sales, ISP surcharges, ect. The social problem of course is that under compulsory liscenses, everyone pays for the content when they buy a computer or subscribe to an ISP whether they use the content or not. So even if the industry decides to go the compulsory liscense route, it’s not a certainty that Congress would impose one.
The movie industry is even further behind this calculation in time because of the relative paucity of movie file sharing at present. As broadband is more universally deployed, the same equation will be performed for the movie industry.
To Raoul:
A truly interesting proposition. I guess I’m not ready to throw in the towel just yet and line up behind the conduct criminalizers.
To Michael:
I deplore the ever expanding copyright term as much as you. If it’s any consolation to you, I doubt that any further expansions will occur. The dustup over the last one, with a highly visible Supreme Court case ensuing has created a view among even the most ardent allies of Hollywood that enough is probably enough.
But the problem you have identified still remains. I like the idea of some kind of public access for works that are no longer in publication even though still under copyright. In fact several suggestions have surfaced for ways to do that. I think Zoe Lofgren has proposed a bill on the subject which is probably described on her website.
Let me rephrase, I agree with your position that it will take a few years to see results. It is so important to have reasonable legislators, like yourself, and scholars like professor Lessig, define the middle of the argument. In the mean time, I am personally anxious to pick a fight sooner rather than later. I have a fear if they slowly increment the penalties and start putting people in jail 10 years from now that the public will somehow let it slide. Whereas, if they can be suckered into throwing people into jail now then we may be able to roll the tide back a little.
Congressman Boucher,
Allow me to point you to Ed Felten’s blog for a concise summary of Tim Wu’s paper (see… http://www.freedom-to-tinker.com/archives/000609.html). BTW, Felten is spelled with an “e” and not “o”… I made the same mistake once 😉
As for your response… I agree wholeheartedly. Moreover, as it has been discussed here already, copyright laws are designed for “packages” in atom-based chattel and not for bits that can be replicated an unlimited number of times at zero marginal cost. So therein lies the brilliant insight of Tim Wu by saying that 1’s and 0’s are more a matter understood by telcom policymakers. As John Perry Barlow so eloquently put it more than a decade ago, we’re dealing with the issue of trying to manage “wine without bottles.” But, is access to “content” as fundamental as water and electricity?
Dear Congressman Boucher,
I have been following the copyright debate (DMCA, INDUCE, DeCSS, et al) for a long time and there is a potential dimension to the debate that no one seem to have grasped. As we all know, the Internet is a global phenomenon and as such, it is difficult, if not impossible, to control the contents that flow over borders on the Internet.
Within the sphere of current and proposed copyright protection laws (DMCA, INDUCE, etc.), private parties (RIAA, MPAA, BSA, et al) can initiate the enforcement of such laws; however, they can do so only within U.S. jurisdiction. What happens if all the “illegal” tools with the potential for copyright-infringement are moved offshore but are still accessible to all persons residing in the United States?
Let’s look at a prime example of this new dimension: doom9.org. This website is a clearinghouse for all software tools with explicit or implicit copyright-infringing uses but since it is based outside of the United States, it is presumambly outside the jurisdiction of any U.S. laws.
As such, it would appear that the only recourse for individuals or entities allegedly harmed by such website is to use the power of the U.S. courts to initiate an extradition process for the owner(s) and/or operator(s) of such websites and/or force all internet service providers within U.S. jurisdiction to block access to these websites.
*****
Within this new dimension, we would have the specter of the United States implementing and enforcing Saudi or Chinese-style Internet restrictions in order to protect the interests of copyright owners.
*****
This new dimension is not without precedent. A court in Pennsylvania recently invoked a state child porn law to force MCI to block access to certain European websites for ALL people utilizing MCI’s backbone Internet infrastructure.
http://www.theregister.co.uk/2004/01/13/pennsylvania_child_porn_law_causes/
A group of Hollywood media companies filed a lawsuit against several Internet service provider to force the service providers to block certain website(s) in China that were allegedly offering free downloads of copyright-infringing works.
http://www.gigalaw.com/articles/2002-all/isenberg-2002-09-all.html
These events above represent the tip of a potential and enormous iceberg. This is the potential unintended consequence of the copyright-protection laws that should be communicated to the public in order to demonstrate the conflict these laws would have with Congress’s apparent desire for global internet freedom, as promulgated in Congress bill S. 3093 or the so-called “Global Internet Freedom Act”.
http://www.fas.org/sgp/congress/2002/s3093.html
What are your thoughts on this potential conflict? Would Congress’s desire to “free” the Internet from censorship trump any desire to protect the interests of the copyright owners? Can this potential conflict be exploited to demonstrate the fallacy of the current and proposed copyright protection laws?
If we cannot stop the INDUCE Act from being passed, then perhaps we can at least ensure that the INDUCE act will not permit any form of Internet blocking or censorship to protect the interests of copyright owners.
In response to Raoul:
I agree that our IP laws are broken. Specifically, the patchwork which has resulted from amending and twisting the copyright act for various purposes has become increasingly expensive to navigate for both rightsholderd and businesses. I read the thing, it is convoluted, contradictory in places.
Ideally, it would be great to get huge sections of congress, a bunch of computer scientists, public interest groups, rightsholders, business interest groups, etc.. and redraft the entire law carefully to reflect current times.
I do not think it will be possible, or even proper, to simply rewrite the act at this time. I would like to say though that older legal strategies do not work on the internet. As someone finishing in computer science I note that just like code, laws will extend over the computing plaform precisely to the point of limitation, and anything even slightly broad bears the extreme danger of preventing an infinite number of innovations.
To extend this comment, the dmca’s provision against circumvention has given rise to a tremendous number of inhibitions to legitimate use of the computer, some unseen, and some yet to be created.
Thanks for the replies from Andrew and Congressman Boucher. I wasn’t looking for legal advice but rather attempting throw a thought in for discussion. I am not a lawyer and often frustrated by how things are worded in legal documents and such.
For my part, I try to inform everyone I know that is also willing to listen, about the book “Free Culture” and encourage them to read it. I also try to talk about the negative impact of the DMCA. Sometimes I feel like I’m talking to a transparent window because they just don’t understand how it impacts them.
“The record labels in my view should be having internal discussions now about the possibility of approaching the Congress with a proposal for a complusory liscense for access to music delivered over the Internet. P2P networks are here to stay.”
Considering this statement and the rest which i dont want to make you read, what about bills such as H. R. 4077 which purport to start a “war on drugs” approach to filesharing, with draconian prison sentences and “education programs”, among other patriot act style privacy rollbacks?
if congress is willing to consider this, but not a compulsory license, why not call for a voluntary license. While I do not condone draconian measures like H.R. 4077 as stand alone, combining it with something contructive like voluntary license would give greater impetus to filesharers not to “evade” paying the license fee.
My two cents: We never needed new legislation for copyright protection. If anything we need less copyright legislation in the digital spectrum since everything there is a copy. Both the DMCA and the INDUCE Act are terrible ideas designed to give more power to already huge corporations. Congress should never again extend copyright terms. Instead of crying over the RIAA’s spilt milk I’d like to see this as part of a wider property debate that looks at corporate control of; speech freedoms, life (gene patents & agriculture & pharmaceuticals), natural resources, etc. How much nature, science, and knowledge can have it’s uses controlled, by who, and for how long? I don’t think we’re at a reasonable place with property law (physical and intellectual) if anti-circumvention laws would prevent us from tinkering with Diebold’s “property”, if the WTO says other countries can’t provide African people with cheap drugs to combat AIDS, when you can patent things you didn’t create (either God or chance and evolution made genes), when Bechtel is allowed to own Bolivian rain water, or when I would have to pay someone I’ve never met to make a video rendition of the singing portion of my second birthday party. Certainly the rich and powerful value their property, and speak louder, but we value ours too.
I’ll leave the other specific arguments on INDUCE, HR 107 and DMCRA to the lawyers. Mostly I want to thank Mr. Boucher for participating in a forum like this. With the new options available through the net for communications, I don’t see any of my own representatives making use of new communications technologies for anything other than to simplify the form-letter-response. Being on the verge (hopefully) of a truly empowing revolution for democratic participation in the U.S., many of us greatly appreciate Mr. Boucher’s voluntary participation, and example to others.
of course, with such a draconian penalty in place to assure compliance, there is an extreme danger that something not covered under the collective license would imprison someone who was trying to remain legitimate. This is truly a problem which is hard to reconcile with a plan such as the one i just pitched.
To Rushabh:
You are right about the limits of US law , but the situation is actually worse from the content creator’s standpoint than you think. Not only will P2P companies go off shore if need be to escape US law, they will go to countires with which we have no extradition treaties . Several countries have made a cottage industry of hosting internet gambling sites and other borderline endeavors. They will gladly welcome P2P companies next.
Don’t hold out hope that the urge to keep the Internet ” unregulated” will lead to restraint in adding new copyright protections. Congress has a marvelous ability to apply principle with situational selectivity. In other words, members often do not apply a certain principle unless it suits the particular outcome they are looking for. That is definitely the case with copyright protections. Some of the loudest “free the Internet” voices are among the first to urge greater and greater Content owner protections respecting digital media.
To Anonymous:
Thanks both for the kind words and the provocative ideas.
I would like to pose a new question releated to our DMCA discussion.
I have to express a bit of frustration with the rather tepid response from the general public to the introduction of legislation to correct the most glaring overreach of the DMCA–HR 107, The Digital media Consumers Rights Act.
We have asssembled a large coalition of technology companies ( Sun Microsystems, Gateway, Verizon, SBC, Quest , ect) and public interest groups ( libaries, consumer organizations, EFF, Public Knowledge, universities and others) in support of the bill. My sense , however, is that the most powerful interest, the public at large has largely been silent. I had hoped that emails by the thousands would pour into members’ offices urging prompt passage of the bill. That has not happened. We have a group of very influential cosponsors, including Joe Barton, chairman of the committee to which the bill has been referred, Chris Cox, chair of the homeland security committee, John Doolittle, a member of the House leadership, Zoe Lofgren, and others. We will get there eventually, but our progress could be accelerated dramatically if the public whose rights are at stake would get involved.
What do we need to do to get thousands of people to communicate with members of congress on this?
I personally have sent several emails in to my representatives supporting H. R. 107 in various forms.
From what i am seeing, a good quantity of coverage on cnn, perhaps a speech regarding it would help.
The problem i see is that there is a severe generational gap in play here. Most people above the age of 26 are not very aware of the abuses of the DMCA because they dont really impact their daily lives, while people younger than that such as myself are very aware, but have been discouraged by speeches and letters that condemn computers and the internet as a machine for piracy. The media has been exceedingly negative in its attitude toward technology as well.
I get the same response when i enter chat rooms full of thousands of my acquaintences and ask for letters to congress: “theyre not listening” “we’re their enemy”.
It is very important for representatives in congress to reach out through the mainstream media to both communicate positive intent and the negative impacts of the law.
I would like to note that for anyone who is not an avid computer user, the PR campaign by the content sector has been very effective in closing minds.
I am often confronted with the “piracy” argument whenever i bring up the abuses of copyright law. Much like the patriot act, it seems there is a pervasive feeling that security necessarily requires sacrifice of freedom.
Congressman Boucher,
The situation with the DMCA and INDUCE act as far as the citizenry is concerned is somewhat similar to the situation as envisioned by Pastor Martin Neimoller in his famous poem:
http://www.hoboes.com/html/FireBlade/Politics/niemoller.shtml
Here is my version of the Neimoller poem as it relates to the copyright debate:
First they came for the hackers,
and I didn’t speak up,
because I wasn’t a hacker.
Then they came for the professors and reverse engineers,
and I didn’t speak up,
because I wasn’t in academia.
Then they came for the small companies and entrepreneurs,
and I didn’t speak up,
because I had no interest in business.
Then they came for me,
and by then,
there was no one left to speak up for me.
This may explain the current disinterest on part of the general public in the copyright debate. At this point, I think it would take the publicity of a major case involving a person that the public can strongly relate to in order to get the citizens to take note of the copyright debate. We came very close to this when RIAA filed a lawsuit against Brianna OHara, a little girl who had allegedly infringed on copyrights by downloading free music from the Internet. However, RIAA effectively nipped the publicity at the bud when it quickly settled with Ms. OHara for about $2000.
Had Ms. OHara not settled, the ensuing publicity may have been sufficient to expose the copyright debate to most of the American citizens.
I like the poem–may I use it as you have modified it ( see how respectful of copyright interests I am ? 🙂
Maybe you’re right. It may take a high profile case. I would have thought that Prefessor Felton’s case or the prosecution of Elconsoft would have had this effect. Apparently not.
I live on a campus of over 6000 people and have access to forums frequented by populations as large as 30,000.
I will begin plastering these areas with calls for action… =( it will be terribly expensive to print out thousands of flyers for student’s doors, but it would be worth it =)
“What do we need to do to get thousands of people to communicate with members of congress on this?”
Ouch. I was hoping that you could tell us. Or, as a congressman, at least supply some insights about the process that would be helpful to nonlobbyists.
Remember, many of the readers here are technical professionals who have little contact with politics, and are seeking effective methods of being *heard*. The big companies are not necessarily our advocates, and the civil-liberties organizations can only do so much.
Thanks, Alex
That would help.
I think there is a lot of “ignored public” sentiment regarding the bush administration. I think there will be greater participation come 2005 if kerry gets into office.
To Seth:
It’s simple, as the question suggests. Send an email to the member of congress who represents you asking that person to support The DMCRA. Specifically, ask that member to contact my office and be added as a cosponsor.
Nothing more complex is required–your typical person with an electrical engineering degree would get it in a flash:-) Note the jocular nature of this comment-no disrespect intended.
the problem is that even with fairly widespread publicity about the pendency of the bill — it’s been in most of the tech trade press and on CNET– little has happened in terms of people contacting thier member of congress.
Congressman Boucher, I’m active in digital rights issues, at EFF-Austin and the ACLU Texas Cyberliberties projects. We have active groups of people who are very concerned about digital rights, but have worked mostly at a state level (we helped stop the SDMCA here last year, and are working on evoting now).
What’s the best way we can be helpful from Texas? I’ve heard that Congresspeople ignore email from people outside their districts (and don’t pay much attention to email at all). Should we use local action alerts to encourage people to send faxes from EFF? Should we focus primarily on legislators in Texas (and are there any Texas legislators in influence, on the side of digital rights).
Does there need to be a PAC, to help reelect legislators in favor of digital rights?
Regarding Congressman Boucher’s entry at 2:03 PM about DRM.
Sorry, but no dice
DRM is an automaton. It does not know about dates or about fair uses. If I as a content holder program an expiration date in my copyrighted work, nothing prevents the user to fast-forward his clock past the expiration date and freely copy the content today (that’s why we need TRUSTED devices, i.e. Palladium). Therefore no DRM solution foresees an expiration date for a copyright, and even though 1201(a)(1)(A) allows me to break the DRM for a public domain work, 1201(a)(2) makes sure that no one will have the means to do it, in other words: perpetual copyright. It is one of the “legal hacks” that Finkelstein talked about yesterday.
Congressman Boucher, I take no disrespect from your reply, thank you. Similarly, no disrespect intended – do emails really count? I know the obvious, cheerleading, answer, is to reply “Yes, every bit counts”. And of course that’s true to a certain extent. But my understanding is that emails have very little weight. A staff member *may* count them up – maybe. And that’s it.
Or, to put it another way – how many emails are needed to balance a single $1000 campaign contribution from an industry lobbyist?
I can attest to that “emails dont count” statement. I sent a letter to the honorable rep. Isaakson to oppose PDEA (h.r. 4077) and i got back a form letter on the public domain enhancement act. I’m assuming only the title was read and nothing more. An email is far more efficient and environmentally friendly than a paper letter, so its hard to understand why it has less weight.
To Adina:
Thanks for responding. Emails from a member’s constituents are influential, particularly when received in significant numbers. Most members give them the same status as regular mail ( and those who don’t risk becoming former members rather quickly). E mails from outside the member’s district are generally not influential.
I suggest that you focus on Texas members. Lamar Smith from Austin is chair of the IP subcommittee on House Judiciary–a very important position. Sheila Jackson-Lee from Houston sits on that committee. In the House Commerce Committee where HR 107 is pending, I could use the support of Gene Green from Houston. Joe Barton is already a cosponsor, but I could use help in presuading Ralph Hall to support the bill. getting any member of the House to cosponsor , whether he or she serves on a relevant committee is helpful.
I wouldn’t worry about starting a PAC. Just communicating with members of Congress from texas would be great.
To Javier:
I acknowledge your points. My point was made in answer to a querry about whether circumventing to obtain a work after the copyright had expired would be permitted under section 1201. The act of circumventing would be permitted. The DRM device might not, as you suggest, cooperate by quietly disintegrating like Cinderella’s attire at midnight when the copyright expires. But if the person knows how to circumvent he may do so legally. Of course, another provision of HR 107 would make the circumvention device available if it has substantial non-infringing uses.
To Seth:
Good questions. As my reply to Adina explains, members generally treat email like regular mail. Each message usually gets a reply. Yes, there is a sort of counting heads pro and con exercise that goes on in most offices , but that is true for regular mail as well. Members pay more attention to communications from constituenst than you might think. These are folks who know their districts very well, and a part of maintaining that knowledge is understanding what people at home are thinking about Congressionally debated matters. Most members assume that for each communication they receive on a matter, hundreds of other people in their districts have the same view but have not taken to time to communicate it.
Again, volume does count. That’s why we need thousands of letters pouring in from accross the country , with each message directed to the writter’s member.
It’s almost 11 pm in Virginia. I think I’ll call it a night. Thanks for the excellent comments. We’ll take up again tomorow.
Shawn,
Please don’t urge repeal of the whole of the DMCA. Just Section 103 (the anti-circumvention provisions), perhaps. Section 102 is useful. Title II, the OCILLA, has been abused by the RIAA sending invalid notices and duplicates the protection provided by the excellent remnant of the Communications Decency Act but makes life simpler for online service providers. Clarifying that it’s OK to make copies while repairing computers is good. Adding boat hull designs to copyrightable works seems not to be unduly burdensome. All of those are part of the whole of the DMCA.
Javier, “trusted” devices like Palladium are untrustworthy. They enable copyright holders to withdraw rights I’ve purchased on their whim. Much better an “untrusted” (by the copyright holder) platform which I can trust to protect my own rights to the works I’ve purchased. “Untrustworthy” platforms like audio casettes, CD-ROMs, VCRs and, now circumvention is easy, DVDs have brought very large revenue to audio and video distributors. No sign at all that the predictions of death for their industries happened. They just had to adapt, as they do now to the more efficient online distribution means. As usual, they are trying to block progress instead of adapt. And as usual, what limited sales they are doing aren’t passing the increased efficiency of distribution on to the consumer in reduced prices.
The lack of online price competition is made particularly apparent by tens of millions of consumers passing on works to other consumers at no charge to the recipient. By contrast, established media companies are asking for license fees which typically make per-track prices hit the $0.99 level, perhaps in an effort to protect their established physical distribution business and inhibit the development of new online competitors with more efficient models.
Mr. Boucher, what are typically subjects that get a lot of citizens to write? Perhaps it would be easier to voice public outrage if the problem could somehow be framed in a manner that actually creates that outrage.
BTW, for those wanting to write, if you Google you will find a number of instructions on ‘how to write your congressperson’ (juggle a little with the keywords).
Congressman Boucher: great to see that someone with Deep Insight in the social impact of technology is sitting in on the Hill. As a consumer (and fellow Virginian!) I am greatly appreciative of your work on this topic and have sent letters supporting the DMCRA to your colleagues.
“The problem i see is that there is a severe generational gap in play here. Most people above the age of 26 are not very aware of the abuses of the DMCA because they dont really impact their daily lives”
I can fully attest to this! My 57 year-old father recently had heart surgery and during my visit with him he asked me if I could show him how to download music on the Internet. We went to several of the on-line vendors and I explained how DRM can limit the amount of times the content can be used, how it can be used, etc. He was stunned by the control the content industry exercises! He was totally disenhearted as he attained some level of understanding of the status quo.
Video highlights of the DMCRA Hearings May 12 are at http://files.dmusic.com/video/newindex.html
Congressman Boucher convened an excellent panel of experts, and we may say that this is Valenti’s swan song (before he segues into a lucrative career as TV pundit.) None too soon, says I, as Valenti’s opinions no longer grant him a free ride, watch him sweat as he dodges, prevaricates and dissembles questions from Congress critics. A famous line is here: Rep. Otter says, “I don’t care what you say, Professor Lessig! I say copyright is propertry, and dirt is dirt! Copyright is dirt!”
Congressman Boucher, Gary Shapiro has done a wonderful job as advocate for the electronics industry. I have long felt that the industry giants in Silicon Valley were a day late and dollar short in lobbying efforts and monies spent in Congress. For the rest of us, the clean and squeaky act we have to bear is tiresome, representing consumers and non-profit public policy.
It is a canard that the Northern California bunch are of the libertarian bent. But I say that it is another example of a nascent industry acting as an “outlaw industry.” That is, until the day they wise up and get in the game. This means putting on a suit and tie and PAYING what it takes to walk the halls of power.
Tim Wu’s essay on Copyright Communication Policy has the best wrap-up of the entertainment industry history I’ve ever seen! Bearing in mind that industry giant MCA (known as the “Octopus,”) finally wised up when broken up by the Justice Department in 1962.
The rest of the story can hardly be news: they put their man Reagan in the White House. It no longer seemed as profitable to grub like mobsters for nickels when they could own the building.
And finally laying to rest the ghost of Sidney Korshak will mean the end of the gangster era when Valenti exits the scene.
This is a wake-up call for the electronic industry. Being smeared with the “pirate” label is nothing new in the entertainment history. Clean up your act, wise up and do what’s neccessary to compete in Washington.
It’s all fine and dandy to put up posters on telephone poles on campuses, but that’s kids’ stuff. Let’s get in the game and push back hard.
Please convene Part 2 of the DMCRA Hearings, Congressman Boucher. Keep the momentum and publicity efforts ongoing,
Thanks to the 2 anonymous postings.
To Branko, I think that many yourger people are well aware of the harms caused to free speech, the ability to use digital media for fair use purposes and to technological innovation generally by the DMCA. As one write pointed out , we had a very successful public hearing on these harms and others will be held, potentially informing thousands more of the need for amendments. My hope is that those who are in the know will contact their member of Congress. A simple email will do.
It surprises me the extent to which many people have completely lost sight of the underlying justifications for copyright law, which now seem to be significantly stronger than more conventional property laws. It is worth remembering that even property laws place limits on the owners of property when it is in the wider interest of society. A good example would be the public accomodations laws which prevent people from being denied entry to shops, trains, and such-like based on their race.
To regain some perspective I sometimes like to reread this short parable by Freenet creator Ian Clarke:
Strangely the door staff exhibited no respect for my property rights as they threw me out the door.
“sometimes the only way out is through”
Instead of trying to water down or repeal these laws a better strategy would be to make induce and dmca so repressive that they would fail constitutional muster on the first challenge.
Congressman Boucher,
Regarding your request to use my poem, you and everyone else are more than welcome to use or modify it for any purpose as you see fit. As far as I am concerned, there was no copyright of any kind on that poem but the federal government, in all its wisdom, has decided what is best for me and has automatically imposed a copyright on the work regardless of whether I wanted it or not.
Therein lies another problem with the current copyright regime. Any work that is created is automatically given a copyright even if the author’s intention was the free distribution and modification of said work. Before the current regime of copyright laws were implemented, any work that was created had to be actively copyrighted by the author in order to be recognized by the government as copyrighted. As a result, most of the creative works automatically were considered as part of the public domain and no one was poorer for it.
Today, in our litigious society, everyone has to seek permission for any kind of creative work (even if it was obvious that the author could not care less about the permissions) and it can lead to the monopolization and stagnation of creative content and the shrinking of the public domain.
For example, I did not seek any permission to use the Noeller poem. If I felt that I had to seek the permission, I would not have bothered to modify the Noeller poem in the first place and posted it here. It simply wasn’t worth the trouble. This is how creative content will become stagnant over time.
The demonstration of this particular facet of the copyright laws could be a powerful tool to expose the general public to the inherent absurdity of the current copyright regime and could help increase the pressure on the government to repeal some of the more draconian laws.
Can someone comment on just what is enough of a non-infringing use under the provision of the DMCRA?
For example, would 3-2-1 studios been able to provide that there was substantial use in format shifting DVDs and backup copies of game software to avoid being buried by lawsuits?
Would something like Skylarov’s ebook software, which stripped the protections from Adobe Ebooks, allowing reading aloud be acceptable under this law, despite being written for profit and by a seeing individual?
Hypothetical tools which allow the playing of Walmart/Napster/Sony/Itunes purchased music on unlicensed mp3 players?
I think that as long as “circumvention tools” are outlawed, fair use will be technically impossible no matter what the law potentially allows. If a developer, particularly of the shareware bent, seeks to develop tools for format conversion — if they have to hire a lawyer in advance to have “substantial non-infringing uses” advice, it will strip much of their incentive to develop such a tool, as the lawyer fees alone will make the effort unprofitable.
And, there are other perils for a developer attempting to provide tools which enable fair use…
For example, lets say I buy a time-limitted song from a provider. This is a promotional tune, for a week only.
Now, I use software to convert it to MP3 (fair use – so I can play on my non-Ipod mp3 player). If I listen past the week, that’s infringement. The DEVELOPER is liable, since the software provides means of accessing content without recompense, and even despite some non-infringing uses, is still a “theft of services” device.
In the end, you only have the rights that code allows you. If people don’t write the code, or the code isn’t usable, those rights don’t exist no matter what the law potentially allows. If the law doesn’t make it possible for small developers to write (and profit from) niche tools to enable fair use, then it be effectively worthless.
(Note that I speak for myself and not the company that employs me).
If the copyright regime is going to include heavy and disproportionate penalties for “pirates”, it should, in all fairness, also include heavy and disproportionate penalties for those who use copyright law in a manner that constitutes little more than barratry.
If a plaintiff in a copyright suit ran the risk of paying the defendent, say, twenty times the claimed damages, and double the defendent’s costs, if the suit were found by the trier of fact and law to be frivolous, vexatious, or without merit, there would be a drastic reduction in FVWM copyright lawsuits to begin with.
No partisanship here — lets recall that Chapter 12 of the Copyright Act started life thanks to Bruce Lehman and Bill Clinton’s Working Group on Intellectual Property Rights. See their infamous white paper, which also recommends exportation of these anti-circumvention measures via Berne and other IP treaties.
As an outsider, there are many aspects I don’t understand. One, however, stands out, and is enough to cast doubt on the whole DMCA: increased penalties that are vastly disproportionate.
Section 8 (a nice name, familiar to many miltary JAG lawyers) provides prison time for recording in a movie theater. Prison? Hardly. Fines, confiscation of equipment and media, but prison? Never.
Another troubling issue (brought up at corante.com), is the provision prohibiting skipping ahead through commercials or dull parts. (How they intend to enforce this is anybody’s guess.)