[dvd-discuss] DMCA 1201 hearings - one report

[Seth Finkelstein <sethf(at)sethf.com>]

[The following was written by J.T. Stanton of the Penguinal Ebullience blog,
not by me - though it fits very well with my own memory and perceptions ]
[This concerns the recent DMCA hearings, http://www.loc.gov/copyright/1201/ ]

[ http://penguinal.net/archives/2003_04_index.html#000641 ]
April 11, 2003

DMCA Sec.1201 Exemption Hearing #1

   Note : I am not a robot. Some quotes may be ever-so-slightly paraphrased

   The first of several hearings for exemptions under section 1201 of the
   DMCA took place at the Library of Congress today. Fortunate enough to
   have a cool boss, I was able to attend 'on detail'. This set of
   hearings will cover the exemptions granted from Oct. 28, 2003 - Oct.
   27, 2006. The first panel convened at 10:00 : half an hour late
   following a suicide attempt on the subway. It consisted of Seth
   Finkelstein (who has spent much of his own spare time and money over
   the past years cracking censorware databases ; he was fresh off the
   plane on his own dollar) and Jonathan Band (representing a number of
   library associations) supporting exemption for the decryption and
   compilation of the databases used by various censorware programs, and
   David Burt of N2H2 (which recently pulled off a victory against the
   ACLU in a censorware case) opposing the exemption.

   Seth and Band operated largely as a single coherent unit during the
   proceedings. Seth did most of the talking, with Mr. Band occasionally
   translating Seth's insightful, sometimes gleefully blunt arguments
   into legalese. Seth did a good thing by trouncing early on the
   semantics game of 'filtering' versus 'censoring' : "Filtering is when
   you block something you don't want to see. Censorship is when someone
   blocks something they don't want you to see." This helped immensely,
   and the panel seemed very receptive of what he had to say : that the
   public has an inherent right to know what is being blocked from public
   schools and libraries, that censorware manufacturers are not receptive
   to complaints of malfunctioning software, and that a decryption of any
   given program's list of censored sites does not constitute a
   compromise of the ability of that program to function.

   The panel drilled Seth quite a bit on the exact technical methods he
   used to crack the encryption of N2H2's BESS database, but needless to
   say, he didn't indulge them on that count, despite their lengthy and
   repeated queries. Eventually, they let it go after Seth 'took the fifth'.

   The arguments presented by N2H2's David Burt, however, did not fare so
   well under the panel's scrutiny (or so it would seem to this lay
   observer). First off, Mr. Burt had little to no legal training . . .
   he was a PR lackey. He stated repeatedly during the proceedings that
   he was "not familiar with the topic at hand" and therefore "not fit to
   comment on the matter". So what do you do when you've got Seth Finkelstein
   sitting next to you and the general council of the Library of Congress
   in front of you ? That's right, muddle the issues !

   Mr. Burt brought us a number of quotable quotes such as "We don't want
   to become the world's largest provider of porn to children" in his
   responses to the panel's questions of how the cracking of BESS's
   database would do any demonstratable harm . . . a question which he
   never answered in person, though N2H2's filings, as read by Seth, say
   that no demonstratable harm stands to be done by people reading filter
   lists. This is apparently not what our PR chum thought, as he not only
   warned of "the risks of this material being distributed on P2P
   networks" (which struck me as silly, because P2P nets have oodles of
   porn on them), but continued to try and draw blood from the stone of
   "If this exemption is passed, little children everywhere will stand to
   be assailed by pornography !"

   It was at this point in his floundering that Seth came forward with
   "One thing I'd like to point out is that your list of porn sites isn't
   even very good." This was met, needless to say, with riotous laughter
   from everyone in the room.

   Another big issue Mr. Burt couldn't put down was the fact that any
   site's censored status could be checked via database.n2h2.com. This,
   he said, totally negated the need for public dissemination of the
   complete database. This led into "if the database can be read by
   anyone, our competitors can use it". The panel didn't seem to buy that
   : three of its five members asked at length how the database would
   suddenly fail to be protected by traditional copyright following an
   exemption from the DMCA. This, in turn, led to a rather amusing bit
   (during which general council member David Carson could be seen
   stifling a laugh) about *where would it end ?* If N2H2's databases
   could be opened for inspection, couldn't those of, say, Lexis-Nexis or
   Oracle (?) ? "Once you go down this road, where do you stop ?"
   Sampling via N2H2's website, his logic went, should be enough for
   anyone.

   "But wonder if [Seth] wants to claim fair use over the publication of,
   say, ten sites from some of the millions of entries in the database ?"
   "He could put those ten sites through the validator."

   Brief pause.

   "Not if he doesn't know what they are !"

   My money's on the exemption being renewed.

   After a recess for lunch, the second panel (copy-restricted red book
   audio CDs) convened at 1:30. This panel was much less lively - it was
   Thomas Leavens of Full Audio Corporation and Seth Greenstein of the
   Digital Media Association arguing for exemption against Steve Englund,
   the RIAA rep who looked for all the world like William H. Macy. The
   entire panel was approached very much from a webcasters' view (Mr.
   Leavens and Mr. Greenstein both have tight ties to the commercial
   webcasting industry - Mr. Leavens spoke of his 'partnerships' with
   Microsoft and Clear Channel) and went for about twenty-five minutes
   before becoming a nearly indecipherable verbal quagmire, with the
   panel and the three speakers splitting and resplitting hairs over what
   congress meant by 'limited' and 'reasonable', where the line was drawn
   between access controls and copy controls, and how much power the
   Office of Copyright has to revise what congress wrote. The basic
   arguments of FAC/DMA were that the RIAA needs to give webcasters
   unprotected copies of CDs, as copy-protected CDs cannot be ripped into
   PCs as ephemeral copies. RIAA (Mr. Englund) maintained that webcasters
   need to write for permission every time they want an unprotected CD,
   or they can just audio-out the CD to a computer. He also said that if
   webcasters could play the CD in a regular CD player, they could be
   legally be said to have 'access' to it - never mind that it is
   completely impractical to jerry-rig a hardware CD player to a computer
   to webcast (see Jack Valenti's "Just make a VHS copy of the DVD and
   and fair-use that !"). His opponents retorted that if they could not
   be given access to the red book audio of new releases (not WMA files
   or 'second-session' compressed CDs or whatever oddness the RIAA
   distributes to them now), then the 8.8% royalties they are paying are
   for nothing.

   Quote from RIAA : "The copy-protection of these CDs is easy to
   circumvent and will probably remain easy to circumvent."

   Ultimately, the panel seemed split on this one : the DMCA does not
   allow exempting specific uses for a class of work, but the webcasters
   are paying 8.8% royalties to RIAA and friends. I left before the
   second panel was over, as did about half the other people there. The
   remaining DC hearings will be on May 1st, 2nd, and 9th.
   Posted by J.T. at 05:47 PM | Comments (0) | TrackBack

-- 
Seth Finkelstein  Consulting Programmer  sethf@sethf.com  http://sethf.com
Anticensorware Investigations - http://sethf.com/anticensorware/
Seth Finkelstein's Infothought blog - http://sethf.com/infothought/blog/