New Yorkers for Fair use/NYLXS Washington Report

US Department of Commerce DRM Workshop Political Action

July 17th, 2002

by Ruben Safir

On July 17th, 2002, New Yorkers for Fair Use and NYLXS, with help from the Free Software Foundation, held a political action at the Department of Commerce where they were holding their second Digital Rights Management (DRM) Workshop. New Yorkers for Fair Use spearheaded the efforts to bring public opinion to the meeting in a reasonable and effective manner. New Yorkers for Fair Use is happy to announce that all of our goals were met in this action, and even exceeded, without disrupting the normal activities of the meeting. It was our goal to have a voice and participate in the Democratic process, and not to disrupt entirely the process.

Prior to the meeting in Washington DC, the President of NYLXS and co-founder of NY Fair Use, Ruben Safir, was attending at the request of the French Free Software movement, the Libre Software Meeting in Bordeuax France. Upon arriving to France, Ruben checked his email and received from the NY Fair Use Secretary, Seth Johnson, a message outlining the Commerce Department's announcement with a list of participants, and asking if NY Fair Use wanted to attend the meeting, scheduled to happen the day after Ruben's arrival back in New York the next week. Ruben was reluctant to schedule a trip to Washington DC so soon after arriving home, but the meeting appeared to be too good of a target for the NY Fair use agenda to pass up. It would give us an opportunity to speak face to face with most of our chief opponents including the likeable and articulate Jack Valenti of the MPAA, the RIAA, and several industrial leaders including Microsoft, and Intel. So Ruben sent a reply back to Seth to prepare for the trip and assigned him the duty of preparing everyone for the trip.

Once the decision was made within the NY Fair Use management to go ahead with the plan, several goals were agreed upon by the management including Ruben, Seth, Co-founder of NY Fair Use Brett Wynkoop, and Jay Sulzberger our general public relations manager. NYLXS also geared into action providing network services and funding for the trip. NYLXS members, as usually, sprang into action in support of the NY Fair Use activity. In particular, Michael L. Richardson, the NYLXS Membership Chairman and Journal Editor designed buttons and helped drive everyone down to Washington, Kevin Mark contributed to the PR material, Vinnie alerted as much of the press as possible and Joe Maffia offered technical support. Even with large parts of NYLXS on vacation, the organization worked admirably according to it's charter, to support and educate the public about issues which affect Free Software in business, education, and in the home.

The first agenda item by NY Fair Use was to get us representation on the panel, specifically by including Ruben Safir as a panel representative. Although Ruben was in France and cut off from many of the Washington connections which have been nurtured over the last few years, NY Fair Use was petitioning for a place on the panel from the start. We had Sarah Brown of the EFF in Washington who put Seth Johnson in contact with Chris Israel inside the Commerce Department. Seth Johnson also tried to contact Congressman Weiner's Office in an effort to bring some Congressional pressure on the matter. But with the limited time frame and our chief advocate in Europe, we were not able to get representation on the board. Ultimately, NY Fairuse had to fall back to our secondary plan, to participate as members of the audience.

Limited to audience participation, we now opened the discussion on a new mailing list created by Seth for the purposes of organizing this action in Washington. The first order of business was to produce proper slogans for our goals. One goal of NYLXS is to change the whole lexicon of the DRM and Copyright discussion. We felt that certain messages needed to be brought to the public and the press to assure our future success, not just in this battle over DRM, but also in a wide variety of copyright and fair use issues as they have trickled into the public eye over the last few years. We decided, after much discussion and after considering many opinions on the mailing lists, to attempt to drive into the public lexicon the phases, “DRM is Theft” and “We are the Stakeholders”. We chose these expressions very carefully to counter the rhetoric coming out of the copyright monopoly content industry, especially the claims by Senator Hollings that he had assembled all the “Stakeholders” to write his CBDTPA bill, and Jack Valenti's rhetoric that the simple act of listening to a DVD on a GNU/Linux operating system is stealing property from the motion picture industry.

The next stage of planning fell into the lap of Seth Johnson, who mobilized NYLXS and NY Fair Use for the practical matters of making the trip. Fortunately, NYLXS is today a well oiled machine. We are very proud of the volunteer spirit of the organization and it's ability to deliver when called upon. Joe Maffia researched our previous work in finding a minibus for the trip down. Seth Johnson offered use of his credit cards to get the truck. Michael Richardson volunteered to drive everyone to DC. Brett Wynkoop oversaw all the system administrations and co-ordination duties needed to keep everyone in touch. Jay Sulzberger wrote up a terrific position paper for the trip and a media guid. Vinnie contacted nearly every press contact he could find with information about the trip. Members with almost every political background came from every part of the city to volunteer to make the trip. NYLXS has become very effective at organizing events. They are motivated, proactive, and competent.

Meanwhile in France, Ruben Safir and Richard Stallman, over much wine, reviewed the political strategy for the action. The principals agreed to a joint effort of the FSF, NYLXS, and NY Fair Use and even planned on backup contingencies including how to hold a protest outside of the building if we were eventually not allowed into the conference room. Some of the ideas we knocked around was showing up with steaks, as in meat, to drive home the message that the public is the stakeholders on copyright monopoly matters, or dessing in costumes. However time would not allow us to co-ordinate these efforts. They are still on the table for future political action.

On Richard and Ruben's arrival home to the States, all the pieces were in place for a successful run at changing the direction of the DRM discussion.

The afternoon Ruben came home to New York, Seth and Ruben touched base and made certain that the arrangements for the van was in place, and that everyone was clear about the time and place we were to meet. We agreed to meet early in the afternoon the day Ruben arrived home, and the day before going to Washington, to pick up the truck from another neighborhood in Brooklyn across town. Seth, Micheal and Ruben went out to rent the van, and drove it home. We decided to meet at Ruben's house the night before for a final planning session Since we were leaving at 4AM in the morning to get to DC on time for a meeting with the media at 10AM, everyone assembled very early in Flatbush. Brett left with his own care from Park Slope in Brooklyn and we stayed in touch on the road. In the minibus we had Michael Richardson, Jay Sulzberger, Seth Johnson, Vinnie, Forrest Mars, Murray, Kevin Marks, and Ruben. Nearly everyone was dressed in a suit and tie.

The drive down to Washington went smoothly and we met with media guru Eric Hensal at the Corner Bakery in the Press Club building a few blocks from the Commerce Department Building. Eric gave NY Fair Use great media tips on how to get seen by the press, in addition to a packet with vital press contacts both in the building and across town. Forrest Mars ran our Media Alert through the building, while Richard Stallman met with us at the bakery with copies of the flyers. Richard and Ruben had spent most of the night on the phone and through mail dotting the i's and crossing the t's on the press release. Vinnie ran off more copies. Brett and Kevin ran down to the Commerce Department Building to scout out the conditions. As it turned out, this was critical because the Department of Commerce was convinced that they could close the meeting to the public. Brett's charm and force of rhetoric convinced the panel that they couldn't close the workshop, and by the time that we were ready to actually go to the meeting, the Panel had rolled out the red carpet for NY Fair Use, giving us an escort to upstairs to the 4th Floor.

Finally, at about 12:30, Ruben, Richard, Seth and Kevin marched to the Commerce Department building, with the rest following later. Ruben handed out our flyers, and met with several friends in the press and with other organizations who are aligned with us. We met with Declan McCullagh from CNN Net, and Robin Gross of the EFF. We also met with American Library Association Representative, Miriam Nisbet and told them of our efforts to protect Libraries last year with our save the Libraries Campaign. People lined up to meet Richard Stallman before the meeting, and eventually the rest of our group arrived at the meeting, filling up the room.

We also had the pleasure of seeing many old friends from the Press including Seattle reporter Sarah Strickland and Bloomberg reporter Katherine Reynolds Lewis. As the meeting started, everyone in our group was wearing the “DRM is Theft” Buttons, and the “We are the Stakeholders” Buttons. In fact, we almost ran out of buttons.

It was not the plan of NY Fair Use in any way to disrupt the Workshop Panel. Neither was it the goal of the organization to sit mute in the audience and not have our presence felt. Our goal was to clearly participate as audience members of the panel. In this matter, and within the bounds of normal political discourse as is the rule with such contentious issues. For example, as the meeting started, the Chair began by saying that he'd like to announce that nobody on the panel is a villain. This brought audible laughter from the audience. We were then quiet for the next hour. At one point, Brett Wynkoop, who couldn't find a chair and finally sat near the panel's table, raised his hand when the Chair asked if anyone else had a comment. The Chair recognized Brett, who then proceeded to announce his name and position as co-founder of NY Fair Use. The Chair tried to un-recognize him, but Brett just plowed forward, within the bounds of Rogers Rules of Order, by asking the panel how they could consider regulations and laws which would turn every teenager in America with a Magic Marker or Wite-Out, into a felon. Brett was refering to the recent flap over the attempt by the music industry to produce DRM for audio CD's which was quickly defeated with a single line made by a marker. Several minutes of interesting debate followed which finally climaxed when one of the lawyers on the panel gave the legal opinion that the courts would never convict anyone for using a Magic Marker as a circumvention device because the courts had not considered that a sufficient circumvention method under the DMCA. This caused Ruben to ask if we can get that in writing for the next DMCA trial dealing with digital music. Everyone was jovial at this point, laughing and smiling and, enjoying the open participatory democratic process unfolding before their eyes. Only the most pretentious of individuals in the crowd refused to smile and participate.

Earlier, a schematic diagram was given of the current state of DRM development. This alphabet soup of circles and letters were discussed for several minutes; the thing looked similar to a Network Map of the internet. Nobody could understand a word of what was being presented, but everyone sat quietly and listened anyway. At the end of this part of the presentation, the image on the projector was flipped, to connect the dots in complete chaos. This fitting image of the state of current DRM schemes would come back to haunt the panel as the presentation went on.

NY Fair Use mostly sat quietly through the meeting, occasionally whispering to each other, until MPAA spokesman Jack Valenti took the floor. As he spoke, he made some statements that included some innaccuracies. One of the more outrageous statements he made was that everyone there was in full agreement that legislative help was needed, and that everyone had been consulted. At this point, Vinnie stood up at the back of the room and said, "How can you say that everyone has been consulted. The public are the stakeholders. The public is not being represented on this panel or consulted. We are the stakeholders and we are not represented on the panel." Jack at first tried to talk right over Vinnie, he had the microphone, his comments were being recorded, and as we found out later, off mike comments never made it to the official record. He was clearly flustered at the statement though. He recovered, and in a beautiful, self-effacing fashion, said that he hoped that everyone would give him the courtesy to be heard, and that if we let him speak without interruption, that he would be glad to listen to Vinnie's reply, and yield the floor to others.

Jay Sulzberger stood up and said we all agree, and the Chair was feeling a little uncomfortable at this point, feeling he was losing control. But everyone sat silently and heard Jack speak. He put on a classic Jack Valenti performance, and said that it was his position that Government intervention in this matter wasn't a bad thing. And that his experience in the Johnson Administration passing the 1965 Civil Rights Act showed him how important and good proper Government intervention can be. In his response directed at Vinnie's remarks, he said, "I'm the public", then looked across the table to one of the tech reps and said "you're the public", then at the legislator's staff, and said "you're the public", then at the rest of the tech and music industry titans and said "we're all the public". He then continued by saying in his charming Texas drawl, that it was his hope that the leaders in the IT industry and the computer field would come to a consensus in the next month on a DRM standard which would protect the property of the Movie Industry from theft. This caused Ruben to whisper to Vinnie that when the floor returned to him, he should defer comment to Richard Stallman, who was the most qualified and highest ranking IT professional in the building.

When Jack finished, the Chair reluctantly deferred to Jack's wishes and gave the floor to Vinnie. Vinnie then identified himself as a member of NY Fair Use and asked to defer the answer to Richard, whom he introduced. Richard stood up, but the Chair didn't let him talk, in violation of the rules of order, and instead said, "We've already accidentally added one of your members to the panel", and he saw no reason why we should get another member to give their opinion. This caused the audience to get visibly upset. In response, NYLXS President Ruben Safir intervened and asked the Chair, “Pardon me, Mr Chair, however, Mr. Valenti nicely pleaded that the leaders of the IT industry to come to a consensus on DRM. However, one of the greatest figures in the Computing Field was standing right here to the left, as part of NY Fair Use. Richard Stallman has just been given an award in France by the United Nations for his contributions to World Heritage with the invention and development of the GNU/Linux system and it's variants. He's the most qualified person in the room to make a public comment in response to Mr Valenti's request.” Ruben's intervention at this point quieted the crowd as nobody wanted things to break down into a raucous confrontation. Though Richard was still denied a chance to speak, our discipline assured that the meeting could continue without derailing the workshop.

However, much of the conversation from that point forward was affected by the events. The Digital Recording Rights Coalition presented more forcefully their position that DRM eroded Fair Use. Jack, in order to convey just how serious the MPAA is about getting DRM enacted quickly, said that while the MPAA responded to a letter from Microsoft about progress toward DRM in 24 hours, that when the MPAA sent such a letter to Microsoft, Microsoft took a long time to return a response. Microsoft at this point all but threatened to buy all the Movie Producers if they continued to be such a pain in the neck. Although this was not their exact words, their threat was neither veiled or lost on Mr Valenti.

Meanwhile, Jack tried to persuade the panel that the Movie Industry had never really been against the VCR. This caused some agitation of panelists, and the crowd just laughed. The panel pointed out that despite the Movie Industry's professed love for the VCR, they brought an injunction against panel members whose companies made VCR, which injunction was eventually defeated in the supreme court. The panel specifically pointed out that the word injuntion was recalled, and then the "modest" fee of $50 per blank [VCR] tape was proposed as a remedy.

But Jack was not the only Panel member capable of bald faced lies. EMI tried to convince everyone that artists really don't hate their record labels, but only say so in public because it's good PR. And later they claimed that the record labels weren't responsible for preventing music from being available, but that it was the artist's fault. AOL Time Warner delightfully wants to close the analog hole. And a bunch of other positions were espoused, many of which have been covered by Slashdot ad nauseum and need not be repeated here.

At the end of the session, everyone had a chance on the panel to express themselves exactly as they wished to. And when it finished, Jay announced that NY Fair Use was to have a press conference in front of the Commerce Department Building at 4:30. Ruben gave his press conference with the help of Richard and Jay. We talked extensively with Bloomberg and other reporters. We announced our position and we announced our sponsorship of the NY Fair Use “Fair Use Bill”.

NY Fair Use attained almost all of our goals for this action. The phrases, “We are the stakeholders” and “DRM is theft” have begun to make their way into the press. We are being invited to a new panel on DRM for consumers and we are debating the merits of this now. We are leery of the formation of another panel and question whether it is a stalling tactic. And we reiterated our position that NY Fair Use wants a seat with the original panel. Capital Hill was abuzz the next day with our activities. And Congressman Weiner's Office has promised to lead in its efforts to bring us into the panel in the future.

NY for Fair Use has kicked down the door that everyone else will now run through,

You are welcome.....

Ruben Safir
Co-founder of NY Fair Use.
President NYLXS.