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?