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
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
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
"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.