4:48 PM

I'd like to follow up on last week's hearing on the DMCRA. Here are some links to other comments on the hearing.

Derek Slater is doubtful about how the hearing went, but he's heartened by Fred von Lohmann's comments. Derek also wonders why no one tried to argue that the DMCA doesn't really reduce infringement and why their side quoted Ed Felten, but our side didn't.

Meanwhile, Ed Felten points out that Valenti distorted the meaning of his quote. Felten was responding to a question about the possibility of allowing fair use rights within a DRM scheme, and Valenti turned it around to make it appear that Felten was saying that fair use rights would destroy DRM. In other words, Felten was saying that we don't know if it's possible to have a technological solution that grants fair use rights without destroying DRM, but Valenti made it appear that he was saying that it's definitely not possible.

Seth Finkelstein has his notes about the hearing at Infothought. He refers to the discussion of the DMCA rulemaking process, saying "I definitely thought I had something to say!" I thought his point of view was well represented by various panelists, including Miriam Nisbet of the American Library Association and Gigi Sohn of Public Knowledge.

Frank Field was taking notes at the ILaw conference last week, which discussed law and the Internet. Lawrence Lessig, speaking at ILaw after the DMCRA hearing, expressed frustration about the fact that the scope of fair use was a major topic of discussion during the hearing. His comments on the DMCRA appear in Frank's notes on FurdLog about Lessig's talk at ILaw.

Frank also had some comments on the written testimony from the hearing. Like Derek, he's interested in Valenti's use of the Felten quote.

FurdLog also has some links to comments by the EFF. Frank also includes a letter from his Representative in response to a comment Frank made about the bill. It isn't clear that Rep. Capuano is on board, but it does demonstrate the importance of contacting Congress. If you make enough noise about this bill, we can get it passed.

Bag and Baggage includes links and quotes from the Professional Photographers of America and the Cato Institute. Both groups oppose the bill. The PPA is calling for its members to contact Congress to oppose the bill. There's a real fight ahead and we need to take action if we're going to win.

Brian Flemming describes his experience contacting his Representative. (from Copyfight)

JD's New Media Musings has the American Library Association's comments on the hearing. Miriam Nisbet, Legislative Council for the ALA, was one of the witnesses at the hearing. JD also points to coverage of the hearing at PC World and Fox News.

TeleRead points to a CNET article about the hearing and takes umbrage at remarks by Jack Valenti and Rep. Butch Otter. Otter, responding to a comment by Lawrence Lessig about how copyright infringement isn't theft, stated, "Theft is theft and property is property." Lessig even acknowledged at the hearing that he was being overly lawyerly in making the distinction. Of course, Lessig is correct. Copyright infringement, though a crime, is not theft.

At Copyfight, Donna points out that one of the benefits of the DMCRA would be to legalize research on electronic voting machines.

After thinking about the hearing some more and reviewing my notes, I have a few more comments. First, it's really hard to take good, comprehensive notes at a talk like this. The best I can do is paraphrase and hope I'm not misrepresenting anything too badly or leaving too many important things out. My notes suffice as rough notes for now, but I'm looking forward to the official transcript.

My comments about the argumentative nature of the hearing look a bit overstated in retrospect. Now that I've been repeatedly quoted on other blogs because of my comments on the questioning resembling a trial, I'd like to step back from that a bit. It is certainly true that some of the questioning was like that. However, it's also true that some Representatives were truly interested in learning about the subject based on their questions. It wasn't as one-sided as I originally made it out to be.

A recurring line of questioning was on the technological possibility of providing for fair use rights while still having DRM protection to prevent commercial copying. Answers on this varied all over the place, from Valenti quoting Felten to argue that the answer is no to Robert Moore's emphatic yes. Given how often that question was re-asked, it felt like the Representatives were determined to keep asking until they got the answer they wanted. I hope they recognize that there was far from a consensus among the witnesses.

It's also important to note that the question was frequently asked as, "Is there a technological way to allow a single copy of a protected work to be made?" as if granting the right to a single copy would substitute for the full range of fair use rights. As Lessig said, the issue isn't what fair use rights should be. Fair use rights are defined by copyright law. The issue is whether it should be legal to use technology to take away fair use rights. My opinion is that it should not be legal. I hope Congress comes to the same judgement.

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