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Fair Use advocates silenced by Big Brother

Commerce Dept. doesn't want to hear it

Advocates 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, 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 floor.

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,'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."'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 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 too good."

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 letter.

"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.


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