Re: [DMCA-Activists] Ballmer: DRM is the Future

[Ruben I Safir]

Press Release: NY Fair Use http://fairuse.nylxs.com

New York City GNU/Linux NY Fair Use testifies for Fair Use at DMCA
Hearings AOL TimeWarner and the MPAA caught lying on the public record
by NYFairUse


At the May 2nd, 2003 hearing for exemptions to the anti-circumvention
provisions of the DMCA, NYFairUse (a subcommittee of NYLXS) confronted
several false statements in testimony given by the MPAA, CSS
Corporation, and AOL TimeWarner. CSS Corporation provides the encryption
system for all DVD disks produced by members of the MPAA. The falsehoods
stated by the content control industry swept through a whole gamut of
issues, ranging from the claim that Linus Torvalds said the GPL was
compatible with Digital Rights Management to an attempt to conceal that
regional coding was inaccessible without cracking the CSS encryption
system. Along the way AOL TimeWarner's representative claimed that
copyright holders had the right to say exactly where an individual was
allowed to watch DVDs.

NYFairUse chairman Ruben Safir offered his testimony after the witnesses
were introduced to the panel. In his opening remarks Mr. Safir stated
that the failure to legally play DVDs on a free operating system
deprived millions of people of their fair use rights. Mr. Safir went on
to say that although the class of works under discussion was
audio-visual, he had originally asked the copyright office to include
all copyrighted works which were purchased in a normal cash-and-carry
transaction without an explicit contract. The leader of NYFairUse then
read several passages out of the 4th and 5th amendments to the U.S.
Constitution, which guarantee the rights of individuals regarding their
private property and security in their homes. After reading the
appropriate passages of the constitution, Mr. Safir and Mr. Phil Gengler
demonstrated the type of theft exemplified by DRM.

Mr. Safir held up an audio CD containing the music of Fats Waller. He
then gave it to Mr. Gengler. Mr. Safir then asked, "Can I buy that CD
from your store?" Mr. Gengler said "Yes." "How much is it?" asked Mr
Safir. Mr. Gengler replied, "It's 50 cents." Mr. Gengler accepted two
quarters as payment and then put the disk into the hands of Mr. Safir.
When he tried to put the disk in his bag Mr. Gengler refused to release
it! The chairman of NYFairUse then faced the committee and said, "This
is an example of theft. This is what DRM on DVDs does to every consumer,
when they can't skip past the previews or play the disk on a Free
Operating System, or when they can't play it on their unauthorized
blender if they choose!" He concluded the demonstration with the
statement, "DRM is theft, and it steals from the stakeholders. We are
the stakeholders of copyright. DRM violates the rights of individuals
under the 4th and 5th Amendments of the U.S. Constitution which, as
recently pointed out by Supreme Court Justice Ginsberg in the Eldredge
v. Ashcroft decision, contain the Fair Use doctrine as a right of
individuals."

Mr. Safir held up an audio CD containing the music of Fats Waller. He
then gave it to Mr. Gengler. Mr. Safir then asked, "Can I buy that CD
from your store?" Mr. Gengler said "Yes." "How much is it?" asked Mr
Safir. Mr. Gengler replied, "It's 50 cents." Mr. Gengler accepted two
quarters as payment and then put the disk into the hands of Mr. Safir.
When he tried to put the disk in his bag Mr. Gengler refused to release
it! The chairman of NYFairUse then faced the committee and said, "This
is an example of theft. This is what DRM on DVDs does to every consumer,
when they can't skip past the previews or play the disk on a Free
Operating System, or when they can't play it on their unauthorized
blender if they choose!" He concluded the demonstration with the
statement, "DRM is theft, and it steals from the stakeholders. We are
the stakeholders of copyright. DRM violates the rights of individuals
under the 4th and 5th Amendments of the U.S. Constitution which, as
recently pointed out by Supreme Court Justice Ginsberg in the Eldredge
v. Ashcroft decision, contain the Fair Use doctrine as a right of
individuals."

At this point the chairman of NYFairUse leveled the first charge of
dishonesty toward the content control industry. He noted that in last
year's testimony Barry Sorkin of AOL TimeWarner, along with
representatives from the MPAA, claimed that DVD encryption prevents
piracy by preventing the direct physical copying of disks. They claimed
that as such, it was a deterrent to piracy. In fact this was simply not
true. A few weeks after their statements a Queens, NY warehouse was
raided and revealed several hundred illegal DVDs that had been created
by copying the disk with all encryption keys intact. It makes no
difference whatsoever if the content copied to a DVD is encrypted or not
-- the disk simply plays. Mr. Safir then told the panel that in light of
this previous deception, the testimony of those who oppose exemptions
should be discounted or at least held under extreme suspicion.

As testimony continued, NYFairUse and Robert Moore of 321Studios caught
the content industry in several other lies. AOL TimeWarner and CSS
proved themselves dishonest and evasive when responding to the panel's
questions. The panel was particularly interested in regional coding, and
asked if it was possible to access the technology without hacking into
the CSS encryption itself. Rather than give a direct answer, the
witnesses evaded the question with an incomprehensible statement that
took nearly ten minutes to produce. The Copyright Office panel grew
increasingly 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 to
the claim. 321Studios has a product to repair and backup DVDs. He knows
every aspect of DVD engineering, and he refuted the MPAA's answer that
regional codes can be accessed without decryption of the disk. Mr. Safir
then objected that those opposed to DMCA exemptions are stalling,
obfuscating their answers, and now lying. He complained that this is a
simple "yes or no" question that does not warrant throwing a pile of
techno-jargon at the panel in an effort to confuse them. He then
compared this testimony to the Challenger disaster hearing, in which the
engineers spent weeks confusingly testifying to Congress until finally
someone dropped a rubber O-Ring into liquid nitrogen, placed it on a
table, shattered the component and said, "That's the problem that likely
caused the accident." The chairman of NYFairUse then clarified 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."

The panel later asked a very tough line of questions regarding the
reasons for regional encoding. Steve Tepp, the Policy Planning Adviser
of the Copyright Office, asked why this encoding was necessary. AOL
TimeWarner's representative Shira Perlmutter offered a convoluted
explanation, in which she claimed that AOL TimeWarner didn't want people
to see movies in different countries for marketing reasons. She further
explained that these marketing reasons were a result of the desires of
copyright holders, who have the right to determine which people should
be allowed to access their work. This brought a strong response from the
panel. They asked her if she believes AOL TimeWarner has the right to
prevent someone who purchases a disk in Japan from viewing it in the
U.S. "Yes," she answered. The audience reacted with howls of protest.
She then changed her answer.

AOL TimeWarner also stated that they were strong proponents of the
cyclic DMCA review process by the copyright office. But they later
argued that there are no current conditions in which section 1201a or
1201v(D) can be invoked, as there is no such thing as a non-infringing
use since the copyright holder has exclusive rights. Phil Gengler
interjected that under those conditions the entire 1201 section is
invalid -- according to that line of reasoning only copyright holders
have the right to evaluate who can access copyrighted material, not to
mention where and when! The NYFairUse chairman added that this kind of
reasoning would subvert the will of Congress. AOL TimeWarner was caught
in the lie that they supported the process, when they actually propose a
standard which excludes enforcement of the law as passed by Congress.

Fritz Attawy of the MPAA testified, claiming that it was currently legal
to watch DVDs using Linux and that Linus Torvalds claimed that nothing
in the "Linux" license or the operating system prevented the use of CSS
DRM. NYFairUse pointed out that the MPAA is lying and didn't quote the
entire article. There is nothing in the article which allows the
development of CSS DRM. The Panel responded that it could discuss this
in more detail later, but never returned to the point where Torvalds
clarified that all keys would need to be visible in the source code (a
violation of the CSS license). The Free Software community could not
allow alteration of the source code to cripple functionality of software
using CSS keys under the CSS licensing agreement. Clearly the MPAA lied
again, and confused the issue before the copyright commission.

Despite their apparently strong questioning it is very unlikely that
this panel will create exemptions. They appear to reject the Supreme
Court rulings and the provisions in statutory law which define the Fair
Use Doctrine as wider than the specifics of Article 107 of the copyright
code, despite the long legal tradition of fair use and a plain reading
of the Constitution. NYFairUse and its parent organization, NYLXS, have
a great deal of public education to do while the public is still able to
connect the dots. Mr. Safir told the panel that as a people and a
society we have two paths before of us: One is a free society with an
increasing opportunity for participation and education; the other path
is a blind march toward George Orwell's "1984". Many examples were
provided of the inhibitions currently in place, and 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, while enforcing the 4th and 5th amendments of our
Constitution.

-- 
__________________________ 
Brooklyn Linux Solutions
__________________________ 
DRM is THEFT - We are the STAKEHOLDERS
http://fairuse.nylxs.com

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