IP: Commerce Dept DRM Workshop Tactic Fair use advocates silenced at DRM "public" meeting a good summary

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Seth Johnson <seth.johnson () realmeasures dyndns org>
Organization: Real Measures
Date: Thu, 18 Jul 2002 19:57:16 -0400


A good summary of the Commerce Department DRM Workshop

Seth Johnson

> http://newsforge.com/article.pl?sid=02/07/18/0155208&tid=6


Fair use advocates silenced at DRM "public" meeting

By Grant Gross
July 17, 2002


Advocates trying to speak for regular Internet users were
basically told to sit down and shut up during a "public"
workshop on digital rights management dominated by IT
heavyweights and Big Hollywood at the U.S. Department of
Commerce Wednesday.

Members of NYLXS and NY for Fair Use mostly had to settle
for interjecting comments from the back of the room and
distributing a pamphlet called "We are the Stakeholders" and
buttons saying "DRM is theft."

The meeting's purpose was to discuss the progress of digital
rights management -- the process by which record and movie
companies control how you use the products you've purchased
from them -- and how the government can help grease the
wheels of DRM. The fair use advocates argued that digital
rights management allows Big Hollywood to steal fair use
copying rights from the public and steal several current
uses of computers away from the public.

Brett Wynkoop of NY for Fair Use did get a comment on the
record because he sat at the table with Big Hollywood and
Big IT and commandeered the microphone at one point, which
meeting moderator Phillip Bond, undersecretary for
Technology in the U.S. Department of Commerce, later
objected to. "We have a structure here," Bond said more than
once when fair use advocates tried to take the floor.

During his short comment, which Bond tried to cut off,
Wynkoop asked how this government-sponsored working group
could consider moving forward without customer voices. He
suggested Congress has already gone too far by passing the
Digital Millennium Copyright Act and outlawing technologies
that circumvent anti-copying efforts -- possibly making
criminals of people who use magic markers to defeat a CD
anti-copying scheme. "Should government be making statutes
to criminalize fair use or make criminals of innocent
citizens?" he asked.

At one point, the fair use and Free Software advocates
thought they had more of a stage when MPAA president Jack
Valenti told a NYLXS member he could respond if he'd let
Valenti finish his thoughts. Valenti was saying that IT
people, content people and content deliverers need to come
to a consensus on an acceptable digital rights management,
when NYLXS member Vincenzo ("one name, like Cher") stood up
and shouted, "What about the public?"

Vincenzo then sat and let Valenti continue talking about why
something must be done to stop millions of consumers from
"stealing" content from the U.S. movie and recording
industries. Moderator Bond then said he'd let Vincenzo speak
"out of respect for Mr. Valenti," but when Vincenzo tried to
defer to the Free Software Foundation's Richard Stallman,
Bond cut him off, saying Stallman could leave a comment on
the Commerce Department Web site.

The fair use crowd objected loudly, and Bond said he'd try
to get more consumer representation on future panels. Jay
Sulzberger of LXNY then tried to get Bond to commit to
including a fair use advocate, but Bond responded, "I will
not be dictated to."

Fair use advocate Seth Johnson, of the Information Producers
Initiative, stood in the back of the 100-seat room with his
hand up for two hours, but Bond never acknowledged him.

The workshop included 23 panelists, with representatives
from the Recording Industry Association of America, the
Motion Picture Association of America, Disney, two record
companies, Microsoft, and AOL Time Warner. Only one
panelist, Graham Spencer of digitalconsumer.org, represented
typical customers of digital content, and he didn't say
much. Another panelist, from the Home Recording Rights
Coalition, represented a small, atypical consumer group. The
meeting room, with about 80 unassigned chairs, was packed
and more than a dozen audience members stood the entire
three hours or sat on the floor.

Robin Gross, intellectual property lawyer for the Electronic
Frontier Foundation, said her organization was told by the
Commerce Department not to show up to the digital rights
management workshop.

Asked later why she didn't try to speak, Gross answered:
"I'd be happy to give my opinion to anyone who'll listen,
but they're not listening. We were told our position was not
welcome at this table."

The workshop did have its moments of controversy within the
invited ranks, with representatives from Phillips
Electronics and IBM saying the average consumer was
under-represented in the discussion. When Bond was asking
panelists what government can do at this point,
digitalconsumer.com's Spencer said: "The role of government
is to make sure there's consumer representation. I think we
need to have more consumer groups at the table."

Listen.com's Rob Reid received applause from the audience
when he disputed Valenti's assertion that Big Hollywood
can't possibly compete with free "pirate" distribution
services.

Reid said those selling digital content, like Listen.com
does in a $10-a-month subscription, have to make it more
convenient, higher quality, and more comprehensive than free
music download sites. "I have to create something that's
better than free," he said. "I have to give $10 worth of
value. I don't win by legislation, and I don't win by
litigation -- the Internet is too open and the software
developers are too good."

Doug Comer, Intel's director for legal affairs, quarreled
with movie industry officials. He noted that IT industry
leaders sent an open letter to Hollywood this week saying
there's more discussion needed between IT companies and
Hollywood over who should shoulder the DRM burden. Valenti
said the movie industry had responded within 24 hours to the
letter, although the IT industry had taken 11 weeks to
respond to an earlier Hollywood letter.

"Why make the point on that?" Comer asked angrily.

As Valenti and Comer continued to argue, Stallman said
loudly from the back of the room: "So the movie companies
and IT companies join together to restrict us?"

Comer also disagreed with Preston Padden, v.p. of public
policy for Disney, who called for government intervention in
DRM because he didn't see all sides coming to an agreement
without a push. Comer retorted that he doesn't think
Hollywood will end its fascination with sex and violence
without government intervention, either.

Even Bond scored some points at the MPAA's expense. In his
opening remarks, he noted that Linux users still cannot
legally play DVDs. And Bond questioned Valenti's comments
that DRM schemes need to fix the problem of peer-to-peer
sharing, while saying, "it's in everybody's best interest to
give the consumers what they want."

Bond responded: "Jack, you say we've got to deal with peer
to peer, but I think that's what consumers want."

At one point Valenti even claimed that the movie industry
supported VCRs when they first came out, supposedly like the
movie industry is now supporting the Internet. Bob Schwartz
of the Home Recording Rights Coalition reminded Valenti that
the MPAA tried to get an injunction against VCRs in the
early '80s and wanted to charge a $25 to $50 "piracy fee"
for every blank videotape sold.

After the meeting ended without anyone from the audience but
Wynkoop allowed to respond, the fair use advocates vowed to
fight to have their voices heard. They said they didn't
intend to disrupt the meeting, just raise their concerns
about DRM.

Stallman suggested the limited participation at the workshop
illustrated the larger problem that the whole concept of DRM
turns copyright case law upside down. Generally, there's a
recognized "copyright bargain" recognized in the law, in
which the public gives up some of its copying rights for the
public good -- so that artists and producers can continue to
get paid for their work.

"There's only one party that really matters in the copyright
debate -- that's the public," Stallman said. "As long as the
system functions well enough that artists are still making a
living, why do anything about these leaks at all?"

Ruben Safir, president of NYLXS, said the congressmen he
talks to recognize their fair use rights to make copies of a
New York Times article or record a TV show on TiVO. During
an impromptu press conference in front of the Commerce
building, he suggested the movie and music industries can't
complain about theft after they've legally sold movies and
music to the public. "If someone breaks into my house and
steals my CDs, who calls the cops, me or the music
industry?" Safir asked. "If it's me, then that's my
property."

Safir said his group will try to educate lawmakers about
copyright issues, as well as have more of a voice in DRM
debates. If necessary, the group make enough of a nuisance
of itself to "poison" the DRM debate in Congress, he said.

"They're going to hate us, but they're not going to have the
choice," he said.

----


http://news.com.com/2100-1023-944668.html

Tech activists protest anti-copying

By Declan McCullagh
July 17, 2002

WASHINGTON--Enthusiasts of free software disrupted a
Commerce Department meeting Wednesday, insisting on their
right to debate the entertainment industry over anti-copying
technologies. 

About a dozen vocal tech activists in the audience
challenged speakers, including Jack Valenti, head of the
Motion Picture Association of America (MPAA), who equated
piracy with theft and applauded digital rights management.

"I'm going to accord you the utmost respect," Valenti said.
"I'm going to listen to you, but let me finish...The first
thing we ought to exhibit is good manners."

The activists, mostly from New Yorkers for Fair Use,
interrupted Valenti with hoots and jeers from the back of
the room until the former presidential aide offered them the
chance to reply. 

"I'm going to give you the opportunity to do that out of
deference to Jack Valenti," said Phillip Bond,
Undersecretary of Commerce for Technology. The Commerce
Department organized the roundtable as a way for about 20
industry representatives to discuss plans for wrapping
Internet content in encrypted layers of anti-copying
technology. 

Earlier, Brett Wynkoop of LXNY.org managed to sneak up to
the end of the table, squat next to one of the invited
panelists, and be called on during the discussion. LXNY.org
is a grassroots group in New York City that supports free
software. 

Besides Valenti's MPAA, the groups represented included Walt
Disney, the Recording Industry Association of America,
Microsoft, Intel, News Corp., the Home Recording Rights
Coalition, and digitalconsumer.org.

Absent from the panel were representatives of the free
software community, which irked the tech activists so much
that they rented a van, left at 1 a.m. PDT for Washington,
D.C., and made their presence known at Wednesday's panel.
Joining them was hacker-hero Richard Stallman of the Free
Software Foundation, who was already in town.

Public outcry

After the roundtable was over, a Commerce Department
spokeswoman said that she could not recall such public
outcry during a government roundtable. Security guards were
called during the meeting, but stayed outside the room.

Probably the loudest activist was Vincenzo, who says he
works in the environmental movement and uses no other name.
After Valenti yielded to Vincenzo, the New Yorker denounced
the panel as unfairly stacked with big corporations.

"That was not planned," Vincenzo said afterward, describing
his impromptu presentation. "That was in response to some
statements that (Valenti) made. I was at the boiling point
and had to respond. The end user is the true stakeholder on
this issue, and the end user is not being represented on
that panel." 

After a brief statement, Vincenzo tried to turn the floor
over to Stallman, but the Commerce Department's Bond vetoed
that idea, saying that the rest of the audience could submit
comments via the Web instead. "We have a structure here,"
Bond said. 

The assembled band of free software devotees said later that
they believed they had won a commitment from the Commerce
Department to include a representative in a future
roundtable. But Bond did not seem to agree. "I'm not going
to be dictated to," he said.

Valenti predicted the U.S. government would need to
intervene in the debate over digital content and set
security standards. The MPAA has welcomed a bill, written by
Senate Commerce Chairman Fritz Hollings, D-S.C., that
restricts technology not adhering to government-approved
"standard security technologies."

The legendary lobbyist also said that he never "wanted to
abolish the VCR" but acknowledged he had used vivid language
during the debate in Congress in the 1980s. In 1982, he told
a House committee that "the VCR is to the American film
producer and the American public as the Boston strangler is
to the woman home alone."

"I think the word injunction was mentioned in the lawsuit,"
replied Bob Schwartz, an attorney with the Home Recording
Rights Coalition. "In the legislative context, the modest
royalty fee was $25 to $50" per blank videotape.

Preston Padden, the top lobbyist for Walt Disney, joined
Valenti in endorsing legislation.

"I don't believe we're going to solve the problem until we
have the transparency and discipline of a government"
solution, Padden said.

Elizabeth Frazee, a vice president at AOL Time Warner,
agreed. "The content industry is going to be looking to the
government for help."

Lobbyists for Intel, Microsoft and the Digital Media
Association urged restraint. A representative of Philips
Electronics said, "We're at the cusp of a discussion," and a
resolution is far away.

Also during the roundtable, the RIAA said that it has begun
pressing for anti-copying technology in future digital radio
standards.


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