May 12, 2004

DMCRA Hearing Today: Agenda [7:38 am]

Note that the statements from Larry Lessig, Jack Valenti, Cary Sherman, Gigi Sohn and others [will be/are] posted here: Hearing: H.R. 107, The Digital Media Consumers’ Rights Act of 2003

Later: Larry’s statement is very carefully crafted to try to avoid the "bomb-thrower" language. The real surprise to me is Valenti’s statement, which is long on ominous threats (shades of the "Boston Strangler!") and short on recognizing that there is anything at all to the problems of the DMCA, including those he is on the record as learning about. To read his statement, it’s almost as if he’s just mailing it in, but I haven’t listened to the stream — maybe he put more into delivery than content.

And what about his citation of Ed Felten (see Ed’s rejoinder here):

In a recent symposium on the DMCA, Professor Samuelson of UC Berkeley posed the question: “whether it was possible to develop technologies that would allow…circumvention for fair uses without opening up the Pandora’s Box so that allowing these technologies means that you’re essentially repealing the anti-circumvention laws.”

The question was answered by the prominent computer scientist and outspoken opponent of the DMCA, Professor Ed Felton [sic] of Princeton: “I think this is one of the most important technical questions surrounding DRM - whether we know, whether we can figure out how to accommodate fair use and other lawful use without opening up a big loophole. The answer, I think, right now, is that we don’t know how to do that. Not effectively.”

Moreover, there is no known device that can distinguish between a “fair use” circumvention and an infringing one.

This is particularly interesting in counterpoint to Larry Lessig’s characterization of “unregulated” uses

Reading a physical book, for example, is an unregulated use under the law, since reading a book does not produce a copy. Giving someone a book is an unregulated use, since giving someone a book does not produce a copy. These uses are thus independent of the regulation of copyright. And these unregulated uses support many important commercial activities, including used bookstores and libraries.

Unregulated uses are not the same as “fair use.” “Fair use” is a privileged use of a copyrighted work that otherwise would have infringed an exclusive right. It is, in other words, a copy that the user is privileged to make regardless of the desire of the copyright owner. Thus, reading a book is an unregulated act under copyright law. But quoting a book in a critical review is a presumptively regulated use (because a quote is a copy), yet privileged under the law of fair use.

The traditional contours of copyright law thus secured to authors exclusive rights over just some uses of their creative work. But it secured to consumers and the public unregulated access to that creative work for most ordinary uses. And it privileged the public for some uses that would otherwise have infringed the exclusive right to copy.

This traditional balance has been changed in the context of digital technologies. For it is in the nature of digital technologies that every use of a digital object produces a copy. Thus every use of a digital object is presumptively within the scope of copyright law’s regulation. And that in turn means many ordinary uses must now either seek permission first, or rely upon the doctrine of “fair use” to excuse what otherwise would be an infringement.

Well worth reading — all of the statements!!

Even *later*: Donna (who’s in town for ILaw but clearly was able to steal some time from her family) posts reports from people who were there — Is Congress Ready for DMCA Reform?

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Video Voyeurism Laws: Another Digital==Different? [7:31 am]

Congress Looking at ‘Video Voyeurism’

While there are no official studies on the intrusive use of camera phones, lawmakers and anti-crime advocates say “video voyeurism” is a serious crime that deserves a serious response by the government.

Simple voyeurism, secretly photographing or videotaping someone in a compromising position or in a private place, already is against the law in most states. The proliferation of tiny cellular telephones that can take pictures silently has facilitated the taking of illicit photos in public places such as grocery stores, sidewalks and restaurants.

"Anti-crime advocates" — are there really "crime advocates?"

Currently there is no federal law protecting citizens from secret and intrusive videotaping in public places, Oxley said, and some prosecutors have had difficulty making cases.

“That’s why we wanted to make a specific crime so there would be no misunderstanding which law applies,” he said. “This is a case where the law is trying to catch up with the +technology+ [sic] or the misuse of +technology+ [sic].”

The bill before Congress [S.1301/H.R.2405] would make it illegal to videotape, photograph, film, broadcast or record a naked person or someone in underwear anyplace where a “reasonable person would believe that he or she could disrobe in privacy.”

The legislation also would make it illegal to sneak photos of a person’s “private parts” when “their private parts would not be visible to the public, regardless of whether that person is in a public or private area.”

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Eolas Update [7:20 am]

Eolas strikes back; Microsoft prepares appeal

UC and Eolas filed a response to the U.S. Patent and Trademark Office 11 weeks after a USPTO examiner issued preliminary findings in a re-examination of the Eolas browser patent.

Attorneys for the university and Eolas on Tuesday filed the 10-page response and two declarations in order to rebut the preliminary findings, which would invalidate the patent if formally endorsed. The findings appeared to tip the closely watched case in Microsoft’s favor, acknowledging that the patent may have been wrongly granted. But they’re far from the last word, legal experts said, since they came early in what will likely be a years-long process.

While Microsoft is not formally involved in the re-examination process, it is preparing its own appeal to a $521 million patent infringement decision it lost to the university and Eolas in federal district court last year.

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