MESSAGE
| DATE | 2003-05-05 |
| FROM | Ruben I Safir
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| SUBJECT | Subject: [hangout] Washington DC report and future Journal Aricle
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Content Conglomerates Confronted by NY Fair Use at 1201 Hearings
Time-Warner/AOL, and the MPAA caught lying in the public record
At the May 2nd, 2003 hearing for exemptions to the anti-circumvention provisions of the DMCA, New Yorkers for Fair Use, one of the sub-committees of NYLXS, confronted several false statements in the testimony given by the MPAA, CSS corporation and Time-Warner/AOL. CSS corporation provide the encryption system for all DVD disks produced by the member corporations of the MPAA. The falsehoods given by the content control industry swept through a whole gamut of issues from the claim that Linux Tovalds stated that the GPL was compatible with the DRM scheme of the MPAA, to an attempt to cover up the fact that regional coding was inaccessible without first hacking the CSS encryption system. Along the way, Time-Warner's representative claimed that copyright holders had the right to say in what location an individual was allowed to watch DVDs which they later withdrew.
Testimony started after introductions of witnesses with NY Fair Use chairman, Ruben Safir. In his opening remarks Mr Safir made the point that the failure to legally be able play DVDs on a free operating system deprived millions of people of their fair use rights. Mr Safir stated that while the class of works under discussion was audio-visual works, he had originally written to ask the copyright office to to include all copyrighted works which were purchased in a normal cash and carry transaction without an explicit contract. The leader of New Yorker for Fair Use then read several passages out of the 4th and 5th amendments US Constitution which guarantee the rights of individuals in regard to their private property and security in their homes. Such clauses as the 4th amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
And the 5th Amendment:
nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
After reading the property clauses of the constitution, he then put on a demonstration with Phil Gengler as to the kind of theft that DRM is.
Mr Safir held up a audio CD of Fats Waller. He then gave it to Mr. Gengler. Mr Safir then asked Mr Gengler, "Can I buy that CD from your store." Mr Gengler then said "Yes." "How much is it?" asked Mr Safir. Mr Gengler replied, "It's 50ยข."
Mr Safir gave Mr Gengler 2 quarters and Mr Gengler accepted the cash. He then put the disk into the hands of Mr Safir. Mr Safir then tried to put the disk in his bag. Mr Gengler then refused to release the disk. The Chairman of NY Fair Use then addressed the committee and said, this is an example of theft. This is what the DRM on DVDs does to every consumer when they can't fast forward on their disks past the previews, or play it on their Free Operating System, or when they can't play it on their blender if they choose to. He concluded the Demonstration with the statement, "DRM is Theft, and it steals from the stakeholders. We are the stakeholders of copyright. It violates the rights of individuals under the 4th and 5th amendments of the US Constitution which, as recently pointed out by Judge Ginsberg on the Supreme Court in the Edridge Case, the Fair Use doctrine is enshrined in the rights of individuals and free speech as outlined in the Constitution."
At this point, the Chairman of NY Fair Use then leveled the first charge of dishonesty at the content control industry. The chairman noted that in last years testimony, Barry Sorkin of Time-Warner, and the MPAA together claimed that DVDs with their encryption prevents piracy by preventing the physic copying of disks to disks with the kinds of direct copying. They claimed that it as such, it was a deterrent to piracy. In fact, this was simply not true. A few weeks later a Queens warehouse was busted with 100's of copied and illegal DVDs and that the pirated DVDs, made by copying the disk with encryption and keys intact, simply work in a standard DVD player. It makes no difference whatsoever if the content copied to a DVD is encrypted or not when copied. The disk simply plays. Mr Safir then told the panel that in light of previous deception on the part of those in opposition to the exemption of DVDs, that their testimony in this round needs to be discounted and held under suspicion.
As testimony continued, NY Fair Use, and Robert Moore of 321studios, caught the content industry of several more lies. Time Warner and CSS proved to be dishonest in their testimony and evasive of questioning by the panel all throughout the questioning. The panel was particularly interested in the problems of regional coding. It was asked if it was possible to access the regional coding without hacking into the CSS encryption itself. Rather than give a yes or no answer, the witnesses gave an incomprehensible answer which took nearly 10 minutes long, which evaded the question. The Copyright Office panel became frustrated and asked the question again. When pressed, the MPAA finally said that it is possible to access the regional code without decrypting the disk. Mr Moore of 321studios then objected and said he disagreed. 321Studios has a product to repair and back up DVDs. He knows every aspect of the DVD engineering. He object to the answer from the MPAA that the regional codes can be accessed without decryption of the disk. Mr Safir then objected that those in opposition to the exceptions being proposed are stalling, befuddling their answers and now lied. He complained that this is a simple yes and no question and your throwing a bunch of unrelated techno-jargon at the panel to confuse them. He then compared this testimony to the Challenger disaster hearing which the engineers spent weeks confusingly testifying to Congress until finally someone dropped the rubber o-ring into liquid nitrogen, dropped it on the table and shattered the rubbery substance, and said, "That's the problem that likely caused the accident". The Chairman of NY Fair Use then pointed out that this is a simple matter. "The regional coding is in the encrypted data. You can't access the yolk of an egg until you break the shell."
Later, the panel asked a very tough line of questions regarding the reasons for the regional coding. In this discussion, Steve Tepp, the Policy Planning Advisor of the Copyright Office, asked why the regional code was necessary for marketing. In the convoluted testimony which followed by Time Warner/AOL's representative, Shira Perlmutter, she said that people Time Warner didn't want people to see the movies in different countries for marketing reasons. This brought a strong response by the copyright panel. The asked her if they thought that they had the right to prevent someone who buys a disk in Japan from viewing it in the US. She said yes. And then howls came from the audience and from the panel. And then she changed her answer.
Time Warner, in regard to questioning also stated that they were strong proponents of this cyclic review process by the copyright office on the DMCA. But they later gave an argument that they saw no current conditions in which section 1201 a or 1201 v(D) can be invoked as there is no such thing as a non-infringing use since the copyright holder had exclusive rights. Phil Gengler then interjected that under those conditions, the entire 1201 section is invalid according to that line of reasoning that only copyright holders have the right to evaluate who and when works can be accessed. The NY Fair Use Chairman then injected that this kind of reasoning would be thwarting the will of Congress. Time Warner was again caught in their lie that they supported the process while proposing a criteria of evaluation which excluded the enforcement of the law as passed by Congress.
Fritz Attawy of the MPAA testified claiming that it was currently legal to watch DVDs in Linux and that the Linux and that Linus Tovalds claimed that nothing in the "Linux" license or the operating system prevented the use of CSS DRM. NY Fair Use said that the MPAA is lying and didn't represent the entire article. There is nothing in the article which allows the development of CSS DRM. The Panel said we'd be able to discuss this in more detail later, but never came back to the discussion in which Tovalds made clear that keys would need to be visible in the source code which is a violation of the CSS license. Neither would the community be able to adequately protect the integrity of the keys and limit the hacking of the source code to alter key functionality of the software with CSS keys inside of it under the CSS licensing agreement. As such, clearly the MPAA lied again, and befuddled the issue before the copyright commission.
Overall, despite strong questioning, it is very unlikely for get exemptions from this panel. The panel apparently rejects the Supreme Court rulings and the provisions in statutory law which defines the Fair Use Doctrine to by wider than the specifics of 107 of the copyright code, despite the long legal tradition of fair use and the plain reading of the Constitutiuon. NY Fair Use and the broader NYLXS has a great deal of education to still do with the public, which is yet ables to connect the dots. Mr Safir told the panel that as a public and a society, that we have two paths in front of us. One is a free society with an increasing opportunity for participation and education in society. The other path is a blind march to George Orwell's 1984 in which a narrow definition of Fair Use is leading us. Many examples of the inhibitions currently in place where given on how society is being harmed without the proposed exemptions. We will need to continue our efforts to educate the public and untether information from the content control industry and enforce the 4th and 5th amendments of the Constitution.
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