Today's subcommittee hearing on the DMCRA has concluded. I was taking notes during the hearing which I am including below. As usual, I'm making no promises as to the comprehensibility of my notes. Also, while I tried to correctly identify the speakers, I may not have always gotten them correct, particularly with the names of the Representatives. I have a few comments, mostly on procedural issues rather than substantive issues.
By now, opinions on copyright law are pretty well set for most of the speakers. It's not a surprise that Lawrence Lessig and Gigi Sohn favor the law while Jack Valenti and Cary Sherman oppose it. Most of the arguments presented today on both sides of the debate are not new. It begins to feel like both sides are set in their arguments and are determined to win by shouting out their position until the other side gives in. I found the most interesting testimony to be by Allan Swift and Robert Moore.
Allan Smith is a former Representative who was a member of the Subcommittee on Commerce, Trade, and Consumer Protection. He spoke in favor of the DMCRA as an individual who has been copying music for over 50 years. He makes mix CDs and gives them as gifts. He thinks there is a creative component to creating a mix CD that should be recognized. Some of the committee members seemed dismayed by his opinions and some strongly disagreed. I hope they will consider what he had to say.
Robert Moore is the CEO of 321 Studios. 321 Studios produced software to allow DVD owners to make backup copies of the DVDs. He is currently in a legal battle to be able to continue to produce the software, which the movie studios want banned under the DMCA. I actually found the most interesting part of his comments to be his responses to questions posed by one of the committee members on the use of encryption on his own software.
321 Studios does use encryption on their software, but the stated purpose is not to restrict copying of the software itself. Moore states that it is so they can track the users of the software so that if a user did try to use the software for commercial copyright infringement on the DVDs, they would be able to identify the user. Various parties claimed to be on both sides of the copyright issue during the testimony, but Robert Moore seemed unique in the way that he both relied on copyright but also sold a product with the purpose of defeating copy protection.
One thing I was surprised by was the tone of the questioning. I expected more information gathering, but the hearing sometimes had the feel of a court trial, with the Representative either asking a series of leading questions to build a case or essentially cross examining the witness in an attempt to discredit their arguments. I found myself wondering how useful that actually is. It's clear that Rep. Boucher supports the bill while Rep. Otter opposes it. How useful is it for them to ask questions when they're deliberately asking questions that they already know the answers to?
True, there were occasional surprises in the answers they got, but I would have liked to see more questions from more undecided Representatives. Perhaps this just shows that I'm inexperienced with hearings and they always go like this. Regardless, it wasn't quite what I expected.
That's all the comments I have at the moment. Here are my notes. A transcript will eventually appear at the Committee on Energy and Commerce website. It also has written statements from all of the witnesses at the hearing.
Rep. Stearns: discussing fair use. balance between public interest in free speech and copyright holders rights in their works.
daily uses of computers challenge this balance
DMCA created civil and criminal penalties to individuals who circumvent DRM
DMCRA allows consumers to unlock DRM to make fair use
supporters argue that DMCA allows access to fair use
opponents feel copyright will be weakened
Rep Schakowsky: need to update laws because of changing technology
DMCA - important attempt to comfront new technology. DMCA swept away fair use and is abused by garage door openers and printer toner cartridge manufacturers.
DMCRA is a step we need to take
Rep. Barton - proud to be a cosponsor of the legislation
objects to spyware - trespassing
CD or DVD is mine once I leave the store. Restricted to uses that are not commercial. Illegal to buy a CD and make copies to sell them. Fair use permits personal copying. DMCA sought to provide content providers with protection.
intent of DMCRA is to permit consumers to make fair use
Rep. McCarthy
Rep. Issa - deeply interested in issue. Wants to restore fair use while protecting that which is not currently protected - reference to HDTV
unusual to have such an obvious problem.
321 Studios - circumvention prevents fair use
must be lose-lose in order to have win-win. need to craft an in-between
Rep. Green - don't want to throw out baby with bathwater
Rep Towns - this is a jobs issue rather than consumer issue
Rep Boucher - thanks for having this hearing
balance between rights of users and rights of creators
1990s - entertainment industry made appealling claim - digital is different - arrival of digital media, perfect copying - arrival of Internet as communications medium
voted for DMCA but expressed concern about overreaching nature of law and offered amendments. Now have six years since law passed. Greater tech industry now interested in this law. Support DMCRA. Large public interest involvement and supporting DMCRA.
four principle problems
1. federal offense to bypass DRM even if the purpose is innocent. Propose that bypass is legit if use is legit. Bypass for infringement still guilty of two violations.
Devices to circumvent for legit purposes be authorized. Refers to Betamax "capable of substantial noninfringing use"
notice that copy protected CDs are copy protected
exemption for research extended to research on DRM
Rep Doolittle - pulls out iPod. Take your entire CD collection or books and download them onto iPod. Manufacturers may prevent users from downloading to iPod. In 1998 didn't grasp real issues of DMCA. Now thinks they went way overboard. Fair use severely disadvantaged by DMCA. Speaking of HDTV, PVR. Use of PVR with HDTV may be limited.
Tension between copyright and technology. Never get rid of it. Line currently that favors copyright holders. DMCA would have prevented the VCR.
Lawrence Lessig - critical of copyright system but believe in role of copyright. Copyright law is broken. Hinders more than helps. Tool that dominant industry uses to protect against competition. Massively overextended.
Small changes can restore balance. DMCRA is important first step.
Speaking of circumvention. Valenti argued that fair use is not protected by law. Supreme Court has ruled that removing fair use creates a First Amendment problem
Valenti refers to his own terrorist war and some suggest that rights should be set aside during war. But free speech trumps.
Gary Shapiro - urges balance to copyright laws. In tech industry, IP is our lifeline. support fair and balanced IP laws. Radical departure from balance. Refers to Betamax. Betamax protection should be strengthened.
Jack Valenti - DMCA does not exile fair use. Letter from DVD-CCA. opposing DMCRA.
what is public interest in this bill?
unfixable flaw of 107 is that it legalizes hacking.
when encryption is broken, copying cannot be restricted. DVD purchased in Chinatown has 321 Studios statement.
Reference to Ed Felten
IP is greatest US export. creating new jobs.
Would weaken international law
Robert Holleyman - software industry also has surplus of trade. Believe that DMCA established that balanced. labeling provision - software industry voluntarily labels and thinks that's the right approach.
research exception dangerously overbroad. advancement of encryption is lifeblood of industry. DMCA has not stood in way of advancement of encryption technology.
Must not shield hacking. Congress rejected this change in 1998.
Product activation would be directly stymied by DMCRA.
Allan Swift - formerly a DJ. testifying as a private citizen. bought reel-to-reel machine in high school. Been a home recordist for 54 years. Given many friends collections of music. Never directly copied a record and never charged a penny. Respect copyright laws. Some peoople carry good idea to bad extreme. Hollywood would have smothered VCRs and DVDs.
Bought CD duplicator. Doesn't allow copying anything other than originals. Took money from my pocket.
Presumption of innocence taken away by DMCA.
Taking a hammer to consumer will not resolve this matter.
Own 3000 CDs. Profit center for business. Should be treated with respect.
Miriam Nisbet - Libraries are large consumers. Libraries provide access and preserve knowledge. Some uses do not require a permission slip. Uses include fair use, first sale, special library exemptions, the Teach act.
HR107 would permit preservation or archiving. Must be able to do this as formats become obsolete. Foreign language teachers could play DVDs purchased abroad.
Gives taxpayers full value of what they purchase.
Rulemaking under 1201d has not worked.
fear that metered use will be imposed on digital materials.
Stearns: Does a consumer have a right to make a single copy of a DVD or CD?
Lessig: Absolutely yes.
Valenti: No. Can't distinguish between one copy and many.
Stearns: Runaway Jury copy that Valenti had
Lessig: Copying beyond fair use is wrong and should be prosecuted. Giving absolute control to copyright holder is not in our interest.
Stearns: Supreme Court ruled that fair use cannot be denied. Why would you deny that right?
Valenti: Fair use is alive and well. Plead ignorant on ruling.
Stearns: National security. Export surplus.
Swift: This is not the only way to deal with problem. Takes problem out of content holders and puts it on consumers. Not the only way to respond.
Schakowsky: Public interest. How do you justify using such a large brush?
Valenti: DMCA written with involvement
Valenti: wanted a copyright royalty fee on videotapes. Libraries have CDs, DVDs, that you can take home.
Nisbet: Fear restrictions on interlibrary loan.
Schakowsky: Is there no way to allow legal purposes while preventing illegal purposes?
Shapiro: Technology can do anything. But law of unintended consequences. Cars are not restricted in speed. Conduct should be focus, not regulation.
Ferguson: Not a lawyer. You believe that someone who buys a DVD should be able to make a copy of that. How is this different from buying a bag of apples, and lose them, I can't go back a get another one for free. Don't get second car for personal use in another location.
Lessig: Very different principles apply to creative property than physical property. Different balance for creative property than for physical property. Fair use is a balance built into the law. Technology restricts fair use. Technology doesn't map onto complexity of law.
Swift has given us the map. Ordinary consumers obey the law.
Valenti: Legalize hacking for everybody. Machine can't distinguish between honest users and felons. How do you know how it will be used.
McCarthy: How did we lose respect for creative property? Teenage nephews believe creative works are not owned by the creator. Speaks of cheating, copying on a test. While can't you buy a second copy?
Swift: Granddaughter had a debate with him. Maybe we need to make a better distinction between creative property and physical property.
Lessig: is economic issue, but affects multiple sectors of economy. Xerox machine - technology is not banned. Ban legal use would be bad.
Issa: royalty on recorded material. Would you support royalty now?
Valenti: Trying to find secure environment. If you could find a secure environment I would support personal copies. Difference between digital and analog is like difference between lightning and lightning bug. Must protect property until that day.
Issa: What is fair use? When you make partial copies, do you think that's fair use?
Swift: I believe I am creating something new. Create a different theme with mix CDs. I think it's under fair use.
Issa: I disagree.
Issa: Difference between patent and copyright
Shapiro: Duration.
Gonzalez: Magnitude of potential harm? Is prosecution inadequate?
Lessig: Lots of ways to make sure people obey the law. Should you have fair use when technology takes it away. Prosecution may not be best solution. Would endorse compensation. Written several books. Had conference at Harvard. This is separate issue from this bill.
Gonzalez: Wants to focus on prevention model. Self interest in not developing model.
Lessig: AHRA gives explicit right to make copy of CD. Litigation against new business models rather than protecting creators.
Green (subbing for Valenti): Working toward celestial jukebox. Depend on DRM. Recognize that no system is perfect.
Shimkus: Tough sledding. Job loss because of 321 Studios ruling. Surprised that entertainment drives technology. Both sides need each other. Clearplay allows editing of smut and violence in movies. That's a good deal. Should we have the ability to edit?
Lessig: Absolutely. This legislation would guarantee that technology that would allow you exclude smut.
Shapiro: Technology is like a fork. You could use a fork to kill someone.
Green: This bill has nothing to do with this example. Derivative works.
Holleyman: Bill creates exception that swallows rule.
Nisbet: Support HR107.
Gonzalez: Never have secure environment. Troublesome part is where we are today and where we'll be tomorrow.
Green: The system is working.
Otter: Asking Lessig about his books.
Lessig: Third book is available free online for noncommercial use.
Otter: Is every student charged in law school or just one?
Lessig: Everyone.
Otter: Similar question to Shapiro
Shapiro:
Otter: Theft is theft and property is property.
Shadegg: Fair use is being horrendously misused. Is a single duplicate copy fair use? Are multiple copies fair use?
Lessig: Fair use is not the issue here.
Shadegg: four factors - non-profit educational purpose This bill is going after technology.
Lessig: this bill doesn't change the definition of fair use.
Shadegg: Why isn't this problem solved by the marketplace? If fair use allows single copies, while did we need the AHRA? If you want fair use, why can't you ask permission?
Lessig: why do you need to ask for permission? You don't have the right to infringe. If you are exercising fair use, it is not theft. It is wrong that technology steal that right.
Barton: Not only do we not have fair use, we have no use. Is there a way to balance tech, copyright, and fair use? Is this a debate about the number of copies or the intended use?
Lessig: The costs of adjudicating is extremely high. But that is independent.
Barton: Is it technologically possible to make a device that allows a small number of copies without allowing a large number of copies. Is fair use technologically compatible
Shapiro: AHRA enforces that.
Barton:
Green: Fair use is alive and well. No right to make individual copies even if you're not selling it.
Barton: I disagree. Is there no way to compromise?
Green: We see ourselves on the side of right
Swift: I do not agree with Mr. Green. We've provided draconian protections unlike what we do with anything else. Compares to shoplifting. Handcuffing every customer. Exaggerated, but comparable to DMCA. This is not the only way to deal with legitimate concerns of piracy.
Dupak: You would favor encryption with one copy.
Green: It is possible to build in that technology. The incentive to do it is based on preventing cracking.
Lessig: That doesn't guarantee fair use. Use a copy of a chapter of my book to criticize it. No simple tech because of the complexity of fair use.
Dupak: isn't the store responsible if your CD copier?
Swift: doesn't give an ounce of protection to the industry. It just takes four times longer to copy.
Bono: You are violating multiple copyrights when you make a mix CD. We have DRM. We have come a long way with technology. Speaking of iTunes FairPlay restrictions. This bill will undo that. Disney will replace broken DVDs, true?
Green: Yes.
Bono: people can put their creations out there freely. And is your book copyrighted?
Lessig: yes it is.
Bono: Xerox analogy is disingenuous. You value it enough to copy it but you're not willing to pay for it. You can post your list on the web.
Swift: Why would I want to do that?
Green: I have a few minds on this. Single copy is different than massive piracy. What is the process of DMCA rulemaking?
Shapiro: By most accounts that process doesn't work. Broad public access has been totally ignored. Radio put musicians out of business. Downloading is split.
Green: protect both innovation of technology and creators.
Holleyman: We have been able to deploy very simple technologies. It is not burdensome and it reduces piracy because of the DMCA.
Boucher: Copyright Office has issued the opinion that making an archival copy is fair use. Being able to excerpt small portions would be a fair use. Are you concerned to DMCA holds the potential for extinguishment of fair use?
Lessig: Absolutely.
Boucher: The creator can lock the content and protect the content.
Boucher: Fair use is an American doctrine. Is there a connection between fair use and growth?
Lessig: Absolutely. Foreign corporations do not understand the value of fair use.
Boucher: Are you concerned that the DMCA could lead to a pay-per-use society?
Nisbet: yes we are. We support the HR107 to protect free access to our patrons
Boucher: How does the rulemaking process work? My sense is that it is all but useless. Have you gotten the exemptions you have requested by any of the commercial groups.
Nisbet: We've gotten opposition, but no support. We've been disappointed, as has the Librarian of Congress.
Boucher: How different would the CES look in the event that the DMCA can be used to thwart competition (garage door openers and toner cartridges and Sony Aibo)?
Shapiro: Some of the members of our group are doing this. ReplayTV litigated out of existence because of DMCA.
Sherman: The DMCA has been characerized as anti-consumer. Disagree because creators were afraid to use technology. Now using them.
Mentions cable descramblers.
iTunes, DVDs. If HR107 were law, wouldn't have DVDs today.
Fair use rights have not been lost.
Not just facing commercial piracy. Also facing consumer copying. Sales down 31% in four years since widespread Internet copying.
Everyone relies on misconceptions of fair use.
HR107 is about getting creative content for nothing.
No discussion of marketplace. CDs and downloading services allow copying. Consumers are benefited by options.
Jaszi: Testifying for Digital Future Association. We make and use copyrighted works so we support both copyright and fair use. Support HR107.
This is a debate about freedom and fairness. DMCA lost sight of copyright norms. Overrode fair use.
Rulemaking has done nothing to bring back fair use.
HR107 will restore public respect for copyright which the DMCA has undermined.
Hollywood owes much of its success through fair use.
Will promote electronic commerce in many industries. The DMCA protects only a few industries.
Will allow lawful use. As the uses increase, the value will also increase.
Cybersecurity is important.
Rose: The entertainment software industry opposes the HR107.
Videogame development is expensive. Piracy would harm the industry. DMCA is essential to vitality and growth of videogames. Game publishers use technological measures to protect the games.
The DMCRA would make the DMCA meaningless.
DMCA rulemaking is working.
Without the DMCA, the software industry would enter a dark age.
Sohn: consumer perspective. Strongly support HR107 because it narrowly gives rights to customers. Requires labeling on copyprotected CDs.
Would restore the original intents of DMCA to protect consumer rights. Protections have been failed.
Murray: We make a living based on the protection of copyright. Garage door openers, toner cartridges, aftermarket car parts. DMCA used to block those products. Question isn't whether DMCA is broken. The question is how can it be fixed.
What should consumer expectations be in regards to labeling?
The Betamax decision didn't strangle the industry.
Moore: 321 Studios is a software company. Provided more than one million consumers a way to backup DVDs. 321 Studios is on the brink of annihilation because of DMCA.
Customers are people, not pirates. Want backups for various reasons.
Piracy is bad. But if people can use tools to make copies of CDs, why are they criminals for making copies of DVDs.
Software can only make backup copies and it typically takes an hour or more. Watermarked. Nothing on computer to upload.
321 has offered to work with movie makers. They have turned a deaf ear.
Stearns: You make a good case for your software. Let me ask about GamesX copy.
Moore: It's a virtual CD drive. We've had no challenges.
Rose: We are analyzing and keeping options open.
Stearns: Do you support restoration of sony decision.
Moore: Absolutely.
Stearns: Companies assert protection allows creativity.
Murray: concerned about anti-competitive effects when copyright wouldn't normal be in play. These systems will never be 100% secure. The status quo is technology doesn't allow fair use.
Stearns: Is it possible to allow one copy and that's it? Isn't it possible to reach a compromise?
Sherman: The problem with Mr. Moore's product is that it strips out the encryption.
Moore: That is an impossible task given the technology we have. We could reencrypt it. Second time in three years that Runaway Jury copying has happened. And we have forensic evidence we could use to find the source.
Otter: Does 321 Studios encrypt the software it makes?
Moore: Yes, to give teeth to antipiracy measures.
Otter: Would HR107 remove that protection?
Moore: I would not have a problem with that for noninfringing use.
Otter: Can I make a backup copy?
Moore: Yes, multiple times. We want control over the use of our software.
Otter: Isn't that what the studios are doing?
Moore: They have a right. But I think that ends at tools of consumption of the product.
Otter: Why encrypt with CSS?
Moore: You'd need to ask the studios.
Otter: Do you agree with Mr. Valenti's conclusions that it would affect the balance of trade?
Moore: I don't not agree.
Moore: Give the benefit of the doubt to the consumer. We expect most people to obey the law.
Issa: You know what tokenism is? You're it. You're the example of a good faith effort to make backup copies. Swift owns licenses, copies of records, and he edits records together. If you did the same thing with DVDs, would that be wrong?
Moore: Not a lawyer. Copyright is an act of distribution or act of consumption.
Issa: Only one person can use a book at a time. If you make multiple copies and watch them simultaneously aren't you violating that license.
Moore: There is no license on DVDs, unlike software.
Issa: If you could allow for only one copy per user, could you do it and would your product sell?
Moore: Provided that it's not drowning in DRM, it would continue to sell. This bill would not determine fair use.
Issa: This committee has a role to play in educating about fair use. Doesn't think Swift's behavior is fair use.
Boucher: We heard from Prof. Lessig that the DMCA can extinguish fair use.
Jaszi: yes
Sohn: yes.
Boucher: Content providers say. Not to worry. We have a process and it works. Do you agree?
Sohn: No. The Copyright Office has raised the burden of proof beyond the statute. The Office does look at the types of use. Assistant Sec of Commerce has protested the burden of proof or the types of use.
Jaszi: There is a structural problem with the rulemaking that is a function of the law. Holds out the possibility of an exemption for conduct, but not the devices or technologies. Therefore it's a false promise. Gives theoretical right, but no practical way.
Boucher: in 6 years, only four exemptions have been granted. 25 groups have been rejected. The Librarian of Congress has recommended that the law be changed.
Subcommittee adjourned.
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