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Re: [dvd-discuss] Petition for rational copyright law

microlenz@earthlink.net wrote:
> On 3 Jun 2003 at 20:38, Jim Bauer wrote:
> > I have trouble seeing how this will work.  Of course, I have
> > trouble seeing how the current system works too.

< SNIP > 

> Details! Yes the Devil is in them but the point here is to get the issue before
> Congress. THEN the details can be worked out in PUBLIC not behind smokefilled
> closed doors. If this does NOT get to Congress then whatever the best solution
> is becomes irrelevant. They won't act on it! At least getting it TO congress
> means that something MAY happen as opposed to not where NOTHING CAN happen.
> (May = possibility, Can = Ability)

I think that there are enough significant logs in the fire right now, that
we can prevail upon Congress to pursue a forthright public examination of
exclusive rights policy.  I think that if we take the initiative, we don't
need the finesse sorts of moves so much.

For one thing, government-mandated content control has been forced back into
Congress, with Congress calling the FCC to task, calling them to explain why
they think they can make copyright policy a la the broadcast flag.  That was
before the media consolidation thing.

The attempt to establish the precedent for content control through agencies
like the Commerce Department and the FCC has been repudiated pretty soundly,
and that can be pressed.

Eldred was a certain salient, an attempt to press a "Congressional powers"
Constitutional analysis while emphasizing the public domain issue.  But
other things have been going on.  While industry-driven content control
continues, the idea of having the government mandate it is presently up in
the air -- the FCC's consideration of the broadcast flag would now
presumably be subject to greater scrutiny in the light of their media
consolidation decision.  And note well that the Copyright Office's DMCA
Exemptions hearings proceeded in such a manner that very bold, solid
analysis was presented, things that in the past would have been presented
with a "I don't mean to encourge piracy, but . . ." caveat, a lot more
caviling.  By the time of the last two days of testimony, you could feel the
strength of the information freedom position breaking through.

Really, we should be writing to Congress as scholars and professionals,
about first principles, how exclusive rights policy is up to them.

My big picture line goes: exclusive rights policy is not determined by
software or hardware; it's not determined by authors or inventors; it's not
determined by private contracts and licenses.  It's determined by Congress,
for an express purpose and within Constitutional constraints.  Everybody
else just dickers over the exclusive rights that Congress authorizes them to
dicker over.  It's up to Congress to do it right.

I also like to tell how the present process wherein Congress leaves it to
industry representatives to hash out exclusive rights policy, began in about
1910, with the first Register of Copyrights, Thorvald Solberg, who
specifically asked Congress to create a Commission to clarify the statute. 
Specifically what issues he was raising I'd have to ask Jessica Litman, but
the basic point is right there.  The Patent Committee, as it was called at
the time, refused, probably for the same reasons the present "IP" Committees
ahve been so lax about admitting discussion of the impact of exclusive
rights policy on the public interest.  So the Librarian of Congress, Herbert
Putnam, suggested they pass a resolution authorizing him to call a
conference of industry representatives to address the issues.  NOTE WELL:
The Patent Committee said this would be *inappropriate*!  But then they said
if he were to conduct such a conference under his own steam and report back
to them, they might find that useful.  And thereupon, that's how the
practice got started.

What's needed is a missive that says, do it right for the sake of the
public.  Confront foursquare the question of what form of exclusive rights
actually makes sense in the digital communications age.

The moment is ripe for that.

Seth Johnson


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