Report on DMCA Sec.1201 Exemption Hearing #1

(Forwarded from Pho list)

-------- Original Message --------
Subject: pho: DMCA Sec.1201 Exemption Hearing #1
Date: Sun, 13 Apr 2003 20:02:22 -0700
From: "James S. Tyre" <[email protected]>
To: [email protected]

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

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James S. Tyre                               mailto:[email protected]
Law Offices of James S. Tyre          310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512               Culver City, CA 90230-4969
Co-founder, The Censorware Project             http://censorware.net

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