In his testimony at the House DMCA-reform hearing today, Jack Valenti quoted me, in support of a point he wanted to make. The quote comes from last year’s Berkeley DRM Conference, from my response to a question asked by Prof. Pam Samuelson. Here’s the relevant section from Mr. Valenti’s testimony (emphasis in original):
Keep in mind that, once copy protection is circumvented, there is no known technology that can limit the number of copies that can be produced from the original. 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. Allowing copy protection measures to be circumvented will inevitably result in allowing anyone to make hundreds of copies – thousands – thereby devastating the home video market for movies. Some 40 percent of all revenues to the movie studios come from home video. If this marketplace decays, it will cripple the ability of copyright owners to retrieve their investment, and result in fewer and less interesting choices at the movie theater.
Here’s the full excerpt from the DRM Conference transcript:
Question from Prof. Pam Samuelson:
So yesterday when I was doing the tutorial, Alex Alben asked me a question which, because I’m not a technologist, I was not in a very good position to try to answer, but since there are several technologists on this panel who are interested in information flows. The question that was put to me was a question about whether it was possible to develop technologies that would allow circumvention for fair use or other non-infringing purposes. Is it possible to sort of think creatively about anti-circumvention laws that might allow some room for circumvention for fair uses without opening up the Pandora’s box so that allowing these technology means that you’ve essentially repealed the anti-circumvention laws.
[Other panelists’ answers omitted.]
Answer by Ed Felten:
I think this is one of the most important technical questions around DRM, whether we know, whether we can figure out how to accommodate fair use and other lawful use without opening up a big loophole. And the answer is, I think, right now, is that we don’t know how to do that. Not effectively. A lot of people would like to know whether we can do that or how we go about doing it, but it’s a big open question right now.
Let’s leave aside for now the flaws in Mr. Valenti’s argument, and focus just on his use of the quote. Note that he artfully excerpts segments from Prof. Samuelson’s question, to make it appear that she asked a different question than she really did. Also note that he removes an important part of my answer: the last sentence, where I talk about the technological relation between DRM and fair use as being a “big open question”.
Which brings us back to the bill being discussed today. If we want to answer the “big open question” I mentioned, we need to do more research. But the DMCA severely limits some of the key research that we would need to do. The Boucher-Doolittle bill would open the door to this research, by creating a research exemption to the DMCA. But that issue is apparently not up for discussion today.
[Note: This post is based on Mr. Valenti’s written testimony, of which I have a copy. I did not hear his live testimony. Seth Finkelstein reports that Mr. Valenti did use the quote in his oral testimony.]
[blink]
Ooops… Sorry about that. I probably should have used sarcasm and irony tags as well…
For some reason, it was my understanding that Mr. Valenti believes that there is no such thing as a “fair use right”… or, at least, not in regards to videos and movies… according to the law. I find myself wondering if he regards his use of your words as “fair use” or not (i.e. he may simply take it for granted that he may use excerpts however he wants, without recognizing that the permission for doing so is, in fact, the doctrine of “fair use”). Thus, in a sense, the beginning of my comment — how would he react to being forcibly reminded that this right, taken for granted, is due to fair use.
I suppose the rediculousness of his going to court to defend his use of those quotes was also a bit much for me… :p
Once fair use rights are completely gone, I don’t think we’d see any large businesses being as kind about this as you are, Mr. Felten. I’m worried about what will happen if Mr. Valenti truly wants fair use to be a forgotten thing of the past, and he gets his wish.
As for the second part… I suppose I’ve been following SCO’s multiple personalities… er, cases… er, lawsuits… for far too long. However, if, by some absurd miscarriage of justice, they prevail on their “derivitive works” “theories”, I can see other companies making the most of the outcome. (“You’ve listened to these CDs? Any music you make is now ours, ours!!! Look, it’s part of the license agreement for your listening to the music at all! La ha ha ha ha ha!!! Derivitive works, ha ha!” … ahem.)
Hmmm… Looking at “fair use” rights in another way, though… Just how far could I (or anyone) mischaracterize your arguments and opinions by quoting your words and, effectively, putting words in your mouth — as Valenti may have done in Congress recently — before it could no longer be considered fair use?
Is character assassination by misusing someone else’s words, in small quotes, fair use? (Or is this kind of problem usually handled by slander cases? I’m not sure…)
And so on…
[I was going to make up examples from the “Fritz’s Hit List” posts (and have actually worked out a few)… but I finally decided not to push it. 🙂 ]
— Steven
The question is not, “Can it be done?”
The true question is, “Should it be done?” And, “What will the consequences be, if this is done?”
jvance – it’s worse than that. A work which can possibly be used to bypass access controls on a copyrighted work for non-infringing reasons is enough to run afoul of the DMCA because there is no such device which can not also be used for infringing access. So rather than err on the side of freedom and prosecution of actual infringers they make all such technologies illegal.
To cypherpunk:
What was omitted from Pam Samuelson’s question was the suggestion that we think creatively about technology and laws to address this issue.
Regarding researchers’ problems with the DMCA, note that you can violate the DMCA even when no copyright is infringed. The DMCRA would specifically change this, making it legal to circumvent in order to make noninfringing use of a work. That provision by itself would make a difference for researchers.
Note too that it’s not always possible to do research with uncopyrighted works, because the researcher might not have access to the technology that creates a protected work. For example, I can’t make a copy-protected CD (at least not one that uses any of the leading CD-DRM technologies), but I can study copy-protected CDs.
To the last commenter (whoever you are):
Mr. Valenti was making fair use of the copyrighted conference transcript. He’s welcome to do that. I’m not going to try to take away his fair use rights.
What’s the copyright status on that transcript, and your comments (as contained therein)? Could you sue him for copyright infringement? (If it’s on the RIAA’s or MPAA’s web sites, can you use the DMCA against them, to bring the site down until they’ve removed it?)
[laughing out loud…]
I wonder how well SCO’s tactics would sound here… Try claiming that the entire website became a derivitive work of your comment the moment your comment came into contact with it, and the contamination thus caused can’t be erased? 😛
[/LOL]
Must…. catch…. breath…. laughing…. too…. hard….!
Cypherpunk:
Chris Brand is correct. Just google for Mr. Felten’s SDMI work.
Cypherpunk – as I understand it, you don’t have to infring anyone’s copyrights for your work to be illegal under the DMCA – it just has to be possible to use your work to infringe copyrights.
I think if you were to try to make a device that allowed fair use copies but disallowed copies that weren’t fair use and you failed because your device allowed some unfair use copies to be made, you’d have broken the law, regardless of whether anyone actually used your work to infringe copyrights.
Two things:
Cypherpunk, I think you raise a good point about to doing the research on non-copyrighted material. I don’t know how feasible it is.
Second, from Professor Felten’s quote, it isn’t exactly clear that the statement left out refers to DRM. In fact, from reading it at face vaule, it seems that it is still in reference to the fair use circumvention and whether it is technically possible to do so.
Allowing copy protection measures to be circumvented will inevitably result in allowing anyone to make hundreds of copies – thousands – thereby devastating the home video market for movies.
Just like what happened when VCRs got popular. Oh, wait…
I’d be interested on your thoughts on Trifecta which is meant to attempt to address some of the more clear distinctions in copyright statutes… of course, users are free to infringe copyright outside of the app…
First, while I agree that in truncating your response he made you sound more certain than you are, I don’t see that he mischaracterized Samuelson’s question. What was the difference you saw between what she asked and what Valenti claimed?
Second, what in the DMCA is preventing people from doing research to answer the question of whether we can create technology that would allow for fair use without opening the door to unlimited distribution? The DMCA only protects copyrighted material. Why would you need to infringe anyone’s copyrights in order to conduct such research?
I heard the oral testimony. The above may not be a word for word transcript, but it’s essentially what he said.