[DMCA-Activists] PK: Fair Use, Bcast Content Control, Net Neutrality

[Seth Johnson]

Subject: In the Know - November 17, 2005
   Date: Thu, 17 Nov 2005 21:15:20 -0500 (EST)
   From: Public Knowledge <address@hidden>
     To: address@hidden


*************************************************
In the Know - a bimonthly Public Knowledge update
*************************************************

November 17, 2005

Contents:

* Gigi on the Hill - Part I
* Gigi on the Hill - Part Deux
* Telecom Draft Faces Opposition
* DoJ Proposes New Copyright Crackdown


=========================================
PK Takes Fair Use Message to Capitol Hill
=========================================

It's been quite the busy couple of weeks for PK on Capitol Hill,
with Gigi testifying twice.  Once was in favor of fair use, and
the other against content controls. (See story below.)

In her testimony Nov. 16 before the House Subcommittee on
Commerce, Trade and Consumer Protection, Gigi made the case that
the balance in copyright between the rights of consumers and
those of creators has been chipped away as the content industry
has waged a campaign to restrict what their customers can do with
their content.

The most popular part of her testimony was the list she read to
demonstrate how fair use is shrinking.  Rep. Rick Boucher (D-VA),
sponsor of legislation (HR 1201) to restore fair use rights, had
her read it again at the end of the hearing.  Here is our
admittedly partial list of personal uses currently prohibited by
law:

 * Ripping the songs from copy-protected CDs to personal
computers and mp3 players;

 * Making a digital copy of a DVD for playback on a video iPod,
cellphone or other  portable device;

 * Making backup copies of a copy protected CD or DVD;

 * Playing legally downloaded music on a competing mp3 player or
computer; and

 * Removing from a computer malicious digital rights management
tools, like the infamous Sony-BMG rootkit DRM.

Subcommittee Chairman Cliff Stearns (R-FL) later asked us for
more examples.  We'd like you to help.  If you have been stifled
in your use of digital media for personal reasons, just hit
"reply" to this message and give us your stories.  Understand we
may want to pass them on to Congress, so your name and hometown
should be listed and will be used if we send your stories to the
Hill.

While Boucher and Committee Chairman Joe Barton (R-TX) were
favorably disposed to giving consumers fair use rights, a number
of Subcommittee members were not.  Rep. Mary Bono (R-CA), Marsha
Blackburn (R-TN) and Mike Ferguson (R-NJ) to one degree or
another equated fair use with piracy and a belief that everyone
simply wants music for free.  Gigi, Consumer Electronics
Association Pres. Gary Shapiro and others on the panel argued
those statements weren't true.  The Subcommittee staff plans to
proceed slowly on the issue.

Gigi's testimony is here:
 
http://static.publicknowledge.org/pdf/20051116-gbsohn-testimony.pdf

You can find all of the written testimony and an archive of the
webcast of the hearing here:
 
http://energycommerce.house.gov/108/Hearings/11162005hearing1716/hearing.htm


==================================================
Gigi Testifies Against Content Control Legislation
==================================================

PK President Gigi B. Sohn and Consumer Electronics Association Vp
Michael Petricone testified Nov. 3 at the House Intellectual
Property Subcommittee hearing on broadcast content controls.  On
the other side of the issue were Dan Glickman, head of the Motion
Picture Association of America and Mitch Bainwol, head of the
Recording Industry Association of America.  We like those odds at
the witness table.

The Subcommittee held its hearing to consider three draft pieces
of legislation to help out the movie and record industries.  One
of those proposals would allow the Federal Communications
Commission (FCC) to implement the broadcast flag, and another
would allow the FCC to implement content controls for digital
radio.  A third draft, the most unwieldy of the three, would go
to great lengths to close the so-called "analog hole" which
allows consumers to record digital content on analog devices,
thus stripping out the content protection.

Gigi testified that consumers and the content industry alike have
benefited from the development of digital products and services,
but that the three draft bills under consideration "could bring
this technological and artistic renaissance to a grinding halt." 
In reply to a series of questions from Subcommittee Chmn. Lamar
Smith (R-Tex.), Gigi noted that PK isn't opposed to digital
rights management (DRM) imposed by private companies, but we are
opposed to government tech mandates.  PK also supports
circumvention of DRM for lawful uses.

Michael pointed out that the witnesses had only seen the staff's
draft legislation on Monday and Tues., this for a Wed. hearing. 
He argued that the digital radio legislation would conflict with
the Audio Home Recording Act and stifle the development of new
satellite radio and terrestrial digital radio services.

Glickman and Bainwol testified in favor of government-mandated
technological fixes, saying that their industries were being
hurt.  Bainwol zeroed in on satellite radio, saying that new
devices that allowed consumers to store and index music, and that
he didn't want radio to "morph into iTunes" by essentially
allowing consumers to buy music.  Michael noted that the record
companies were raising the content protection issue largely
because they are unhappy with the licensing fees they get from
satellite and broadcast radio services.

At the end of the day, the Subcommittee remained divided on the
issues, with some Republicans, and the senior Democrat Howard
Berman (D-CA) favoring the case of the content companies. 
Republicans like Chris Cannon (R-UT) and Democrats like Zoe
Lofgren (D-CA) and Rick Boucher (D-VA) were more skeptical of the
need for government to set standards for technology. Gigi and
Michael put in a good word for Boucher's bill, HR 1201, which
would restore fair use rights taken away in the Digital
Millennium Copyright Act.  The content companies were not
similarly enthused.

We have a nice picture of Gigi at the witness table on our home
page:
  http://www.publicknowledge.org

Our oral statement is here:
 
http://www.publicknowledge.org/news/testimony/20051103-gbsohn-oral-testimony

The written testimony is here:
 
http://www.publicknowledge.org/news/testimony/20051103-gbsohn-testimony

Draft legislation is here:
 
http://static.publicknowledge.org/pdf/20051103-broadcast-flag-draft.pdf,

here:
 
http://static.publicknowledge.org/pdf/20051103-hd-radio-draft.pdf,

and here:
 
http://static.publicknowledge.org/pdf/20051103-analog-hole-draft.pdf


=============================================
House Draft Telecom Bill Gets Rough Reception
=============================================

Life here at PK isn't all about copyright.  We can't forget the
debate gearing up on the telecom front.  The House Telecom
Subcommittee held a hearing Nov. 9 on a staff draft of telecom
legislation.  This draft, the second produced by the staff, is
generally seen as more favorable to the Bell companies than was
the first draft of a couple of months ago.

House Commerce Committee Chairman Joe Barton (R-TX) noted during
the hearing that the first draft, released in September, was
"uniformly knocked."  The second version didn't fare much better,
except for the encouraging words from the SBC representative, who
praised the streamlined entry into the advanced broadband
business, and from Alcatel, the equipment maker that is SBC's
partner in building SBC's broadband network.

The issue key to PK's agenda is what's generally known as "net
neutrality," or as we like to call it, "bit discrimination." PK
and others want to ensure that broadband network providers do not
discriminate against certain applications and content,
particularly those in which they have no financial interest.

Several members of the Subcommittee noted that the second draft
appeared to weaken the concept from the first.  Tech companies
had similar views.  The Microsoft witness stressed that net
neutrality needed to be maintained because his company and others
were spending billions to bring content online.  Google, Amazon,
EBay and others sent a separate letter to the Committee outlining
their similar view on the issue.  Their view was that without net
neutrality, "the fundamental dynamic of the Internet will be
turned on its head."  Internet icon (and new Google employee)
Vint Cerf wrote a letter with similar concerns.

Our view is that the hearing was the first in a long legislative
process. There are some things in the draft that we like, such as
the ability of municipalities to provide broadband, and some that
we don't like, such as the current "bit discrimination"
provisions.

Barton said he would like to mark up a bill next month, but the
signs from the hearing were that the bill could be contentious. 
Senior Committee Democrat John Dingell (MI) and senior Telecom
Subcommittee Democrat (MA) Ed Markey each argued that the second
draft had been produced without participation by their side. They
were very critical of many features in it, such as:  (1) what
they saw as weak net neutrality provisions.  (2) harm to
localities by reducing franchise-fee revenue; (3)  deleting even
a placeholder to require the Bell companies to build out their
new broadband video networks to unserved areas; (4)  lessening
competition through buy-outs among otherwise competing companies.

Here is the second staff draft:
 
http://static.publicknowledge.org/pdf/20051103-telecom-bill-house-discussion-draft.pdf

Google, etc.'s letter is here:
 
http://static.publicknowledge.org/pdf/20051108-industry-net-neutrality-letter.pdf


==========================================================
 DoJ Proposes More Protections for Entertainment Industry
==========================================================

The Justice Department has proposed new legislation making
"attempting" to infringe a copyright a criminal offense that
carries the same weight at any other attempt to commit a crime. 
Attorney General Alberto Gonzales said large scale intellectual
property theft could be used to fund terrorist activities.

Our take on the proposals is that they inappropriately put
copyright enforcement into a whole new category of offenses, and
that some of the provisions could have the effect of discouraging
copyright registration.

A good news story on the proposals is here:
  http://news.com.com/2100-1028_3-5944612.html

Our statement, including links to the proposals, is here:
 
http://www.publicknowledge.org/pressroom/releases/pressrelease.2005-11-10.5196055115


---------------------------------------------------------------------------
And now a word from our sponsors: PK has been working day and
night to protect your digital rights, and its court victory
striking down the broadcast flag. We are the only public interest
organization that is fighting proposed flag legislation every
single day. You can help us continue our fight, and you can do it
in two ways. First, consider becoming a member of PK. Check out
our membership page (with the cool premiums for joining) at
https://members.publicknowledge.org/pk_membership. Or, you can
donate to PK, at http://www.publicknowledge.org/donate. Both are
quick and easy. We thank you for your support.
---------------------------------------------------------------------------


Briefly:  The legislation that contains the hard date for
returning broadcaster spectrum to the government has hit some
bumps in the legislative process.  The spectrum portions remain
free of any broadcast-flag language.  The larger bill is caught
up in disputes over tax cuts, spending for Medicare, and drilling
for oil in the Arctic National Wildlife Refuge, among other
issues.  The House leadership pulled its bill off the floor last
week, and the Senate Finance Committee has yet to approve its
version.

The Center for Social Media has released a report by Patricia
Aufderheide and Peter Jaszi on the problems documentary
filmmakers are having clearing rights for their projects.  The
report is available at:  
http://www.centerforsocialmedia.org/rock/finalreport.htm

Because of all the news here, we may not have another issue this
month if things really slow down after Thanksgiving.  Just to let
you know.

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