Wednesday, November 30, 2005

Senate to get techy next year

Internet News reports that the Senate Commerce Committee will hold a number of hearings on internet and communications issues early next year: Senate Sets Ambitious Tech Schedule: "Signaling its intent to focus on Internet and telecom issues next year, the U.S. Senate Commerce Committee plans to hold 14 hearings on a wide variety of technology topics between January and March."

I'll try to cover these as much as possible. Maybe it's time to consider finding a sponsorship to underwrite complete coverage…

Committe on Commerce, Science & Transportation upcoming hearings:
  • 1/19 - Decency
  • 1/19 - Internet Pornography
  • 1/24 - Broadcast and Audio Flag
  • 1/31 - Broadcast and Audio Flag
  • 2/7 - Net Neutrality
  • 2/14 - State and Local Issues and Municipal Networks
  • 3/2 - Wireless issues/spectrum reform
  • 3/14 - Voice over Internet Protocol (VoIP)
  • 3/14 - Wall Street's Perspective on Telecommunications

Previously: Fair Use in the Internet Age, Broadcast Flag and the Analog Hole, Protecting Copyright and Innovation in a Post-Grokster World.

Wednesday, November 16, 2005

Fair Use in the Internet Age

The House Committee on Energy and Commerce Subcommittee on Commerce, Trade and Consumer Protection held hearings today on Fair Use: its Effects on Consumers and Industry.
  • Mr. Peter Jaszi
    Washington College of Law
    American University

  • Mr. Gary Shapiro
    President & Chief Executive Officer
    Consumer Electronics Association
    Arlington, VA

  • Ms. Prudence S. Adler
    Associate Executive Director
    Federal Relations and Information Policy
    Association of Research Libraries
    Washington, DC,
    On behalf of: The Library Copyright Alliance

  • Mr. Jonathan Band PLLC
    Washington, DC,
    On behalf of: NetCoalition

  • Ms. Gigi B. Sohn
    President & Founder
    Public Knowledge
    Washington, DC

  • Mr. James V. DeLong
    Senior Fellow & Director
    IPCentral.Info Progress & Freedom Foundation
    Washington, DC

  • Mr. Frederic Hirsch
    Senior Vice President, Intellectual Property Enforcement
    Entertainment Software Association
    Washington, DC

  • Mr. Paul Aiken
    Executive Director
    Authors Guild, Inc.
    New York, NY

An archived webcast and witness and member statements are available here.

Much of the hearing focused on discussing the merits of HR 1201, The Digital Media Consumers' Rights Act of 2005. HR 1201 would create a fair use exemption to the DMCA prohibition on circumventing digital rights protections schemes (aka DRM). In addition, the bill would authorize the FTC to require manufacturers and retailers to label copy protected CD's.

Most of the witnesses who addressed the panel spoke in favor of this bill and in defense of the fair use right. Jaszi discussed the tradition of fair use within the Copyright Act and noted a number of policy arguments in favor of the fair use rights, particularly the fact that fair use prevents copyright from overwhelming the First Amendment. As the reach of copyright law is constantly expanding to provide more restrictions on uses than ever before, fair use matters.

Shapiro started off discussing how fair use ensures innovation. Without fair use, there would be no VCR, tape recorder, Tivo, or iPod. The information technology industry relies on fair use-- fair use is all that protects inventors from an over-protected world. Because every use of digital content requires making a copy, fair use is especially important and needs to be strengthened. Americans should be able to use their property in any way they choose that does not harm others.

Band also noted that all actions in the digital world require making copies, including viewing web sites and replying to emails. Search engines depend on fair use in order to exist. Each major search engine copies a large portion of the world wide web every month under and opt-out scheme of implied consent. Kelly v. Arriba Soft found that search engine indexing is fair use and limiting this use would hurt the way we find information on the internet.

Adler discussed the relevance of fair use to the mission of libraries. Fair use works well because it is flexible, dynamic and inherently ambiguous. In addition to fair use by library patrons, librarians rely on fair use to create print and electronic reserves and to digitize print works. But when acquiring databases and electronic resources for collections, libraries license, rather than acquire like print material. License agreements are more restrictive than the scope of rights under fair use. Once technological controls are built-in to software, it is impossible for libraries to negotiate exceptions in license agreements.

Adler concluded by stressing the importance of libraries, who, rather tan publishers, archive copies for future uses. Fair use is an important safeguard on our nation's interest in cultural information.

Sohn discussed how fair use rights are slowly being chipped away. Although consumers expect to use content when, how and where they want, the content industries have managed to restrict these uses in the name of preventing piracy. Under the current anti-circumvention law, it is illegal for an individual to copy songs from a copy-protected CD for personal use, shifting video from a DVD to view on an iPod, or removing malicious DRM "rootkit" software from a computer. Sohn asked the representatives to "reject the notion that your constituents are pirates and theives. They do purchase digital products when those digital products are avilable on the market." In addition, she encouraged the representatives to reform the DMCA so that it permits circumvention solely for lawful purposes and clarify and strengthen the DMCA triennial review process.

Public Knowledge thinks that DRM is fine, so long as it is marketplace driven, not driven by legislation. FairPlay works in the marketplace, while Sony's didn't. The government should not mandate technological protection measures. DeLong agreed with applying a marketplace test to technology. But then, DeLong thinks a marketplace will sort out all problems with the copyright economy.

DeLong testified, "We don't talk about the need to balance the interests of automobile manufacturesr and drivers. We assume that we can establish rules promoting markets and allowing the market to sort itself out." Fair uses usually exist when the transaction cost of getting permission is out of proportion to all value to the user and detriment to the creator.
The internet is taking transaction costs out of the system.

DeLong credited DRM with creating marketplace solutions to things that used to have a cost. On the other hand, DRM imposes a cost on performing actions that the law has traditionally considered to be fair uses-- uses either so important to the free spread of ideas or so trivial that the law is not concerned with imposing a cost. These are actions that have no monetary value, yet are to be part of a marketplace? Fair use and free use are not necessarily the same.

Aiken and Hirsch, not surprisingly, spoke against strengthening the scope of fair use.

In both his opening statement and questioning of the witnesses, Stearns focused on seeking a technological solution for the "fair use problem." He thinks that technology should be able to come up with a magic bullet that would absolve Congress of its role in having to make difficult decisions about what activities should be encouraged and which activities prohibited. Stearns asked, "Why not make this the copyright equivalent of a race to the moon? Why shouldn't we be able to technologically limit the number of copies?"

Impressionistic transcripts of the most interesting questions asked by the subcommittee follow in the extended entry at iptablog (blogger has no extended entry feature.)

Tuesday, November 01, 2005

Broadcast Flag and the Analog Hole

On Thursday afternoon, the House Subcommittee on Courts, the Internet, and Intellectual Property will hold an Oversight Hearing on "Content Protection in the Digital Age: The Broadcast Flag, High-Definition Radio, and the Analog Hole." with Dan Glickman (Chairman and Chief Executive Officer, Motion Picture Association of America (MPAA)), Mitch Bainwol (Chairman and Chief Executive Officer, Recording Industry Association of America (RIAA)), Gigi B. Sohn (President, Public Knowledge), Michael D. Petricone (Vice President, Government Affairs, Consumer Electronics Association (CEA) on behalf of CEA and the Home Recording Rights Coalition.)

At this hearing, the MPAA will present a two draft bills:
  1. Broadcast Flag Authorization Act of 2005 and;
  2. The Analog Content Security Preservation Act of 2005

The Broadcast Flag Act would amend Title 47 of the US Code to grant the FCC the authority to regulate digital television receivers to enable a broadcast flag. Broadcast flag regulations adopted by the FCC were struck down by the DC Circuit in American Library Assoc. v. FCC for a lack of a legislative grant of authority.

The Analog Content Act would amend Title 35 to require certain analog conversion devices to preserve digital content security measures. In other words, this legislation would require technology and consumer electronics developers to only sell hardware that conforms to rules set by copyright owners to restrict the storage and redistribution of analog audio and video content.

The draft is written in such straightforward language:
§101(a)(1) No person shall manufacture, import, offer to the public, provide or otherwise traffic in any – analog video input device that converts into digital form an analog video signal that is received in a covered format, or an analog video signal in a covered format that is read from a recording on an inserted storage medium, unless any portions of such device that are designed to access, record or pass the content of the analog video signal within that device: (i) detect and respond to the rights signaling system with respect to a particular work by conforming the copying and redistributing of such work to the information contained in the rights signaling system for such work in accordance with the compliance rules set forth in section 201 and the robustness rules referred to in section 202; and (ii) pass through or properly reinsert and update the CGMS-A portion of the rights signaling system or coding and data pertaining to CGMS-A and pass through the VEIL portion of the rights signaling system in conformance with such compliance rules and robustness rules;

CGMS-A carries information about the rights a copyright owner is willing to grant to viewers alongside closed caption information. VEIL carries rights information as patterns encoded within the video signal itself (like Macrovision copy protection on VHS and DVD.)

This bill would require the Patent & Trademark Office to regulate the "rights signaling system" and in any rulemaking to update the rights signaling system, should encourage "representatives of the film industry, the broadcast, cable and satellite industry, the information technology industry, and the consumer electronics industry."

Joe Gratz wonders why this bill would place regulatory authority within the PTO rather than the Copyright Office: Analog Hole News: "Could this be because this law enacts unlimited-term copyrights for certain uses of certain content, violating the constitution’s “limited times” requirement? Or perhaps it’s because it covers “live events” as well as copyrighted works, violating the constitution’s “writings” requirement."

The EFF's Danny Sullivan writes:
The unprotected analog outputs of computers will be, in perpetuity, restricted to either DRM-laden standards, or to a "constrained image", "no more than 350,000 pixels". Analog video which has been branded as "do not copy", will last for only ninety minutes only in the digital world - and will be erased, literally frame by frame, megabyte by megabyte, from your PC, without your control. You'll watch a two hour film, and as you watch the final half hour, the first few scenes will be being dissolved away by statute.

The EFF's Cory Doctorow writes: Hollywood after the Anal. Hole again: "This is like the Broadcast Flag on steroids. The Broadcast Flag only covered TV receivers. This covers everything with an analog video input. If this had been around in 1976, the VCR would have been illegal. Today, it would ban Mythtv, every tuner-card in the market, and boxes like ElGato's eyeTV the Slingbox and the Orb and the vPod. This is a proposal to turn huge classes of technology into something that exists only at the sufferance of the studios."