Today I testified at a Senate Commerce Committee hearing. The issue under discussion was whether (or how) the government should require the inclusion of DRM (anti-copying) technology in digital TV equipment. Here is my written testimony.

If you haven’t been to such a hearing, you might be surprised at some of what happens. For one thing, unlike the hearings you see on TV, some of the Senators are absent, and some come and go during the hearing. (A Senator is on multiple committees, and various hearings are going on simultaneously, along with other business.)

You would probably be disappointed as well at the quality of the debate. It’s not that debate doesn’t occur; and it’s not that the issues at hand aren’t important. But much time is wasted on posturing that is irrelevant to the nominal topic of the hearing and seems designed only to show that one side is purer of heart than the other. An example was the repeated references to porn on P2P networks. This had no connection to the hearing’s topic, and nobody even bothered to connect it to the topic. And none of the witnesses had any connection with P2P technology.

At the witness table, I was seated next to the one and only Mr. Jack Valenti, whom Senator Brownback laughingly introduced as “the eternal head of the MPAA.” Mr. Valenti was accompanied by a seeming army of helpers who passed him notes at a furious pace. He struck his usual apocalyptic tone – his testimony was titled “The Perils of Movie Piracy – and its dark effects on consumers, the million people who work in the movie industry, and the nation’s economy: Some facts, worries, and a look at the uncharted future”. The first paragraph is a real doozy:

No nation can lay claim to greatness or longevity unless it constructs a rostrum from which springs a “moral imperative” which guides the daily conduct of its citizens. Within the core of that code of conduct is a simple declaration that to take something that does not belong to you not only is wrong, but it is a clear violation of the moral imperative, which is fastened deep in all religions.

And this at a hearing about TV tuner regulation!

Mr. Valenti, characteristically, hit the P2P porn meme the hardest, even, in a surreal moment, inviting the Senators’ staffers to go download some porn from Kazaa and see for themselves how vile it is. As a parent, I had to chuckle on hearing the American movie industry complain about the distribution of inappropriate sexual content to kids. But then again the whole room seemed at times to be an irony-free zone.

I’ll be testifying tomorrow morning at a Senate Commerce Committee hearing on “Consumer Privacy and Government Technology Mandates in the Digital Media Marketplace.”

The hearing is really about two topics: the DMCA subpoena process that allows copyright owners to learn the identities of Internet users (“Consumer Privacy”), and the impact of regulations that would require technology makers to build anti-copying technology into their devices (“Government Technology Mandates”). I’ll be on the panel discussing the second topic. Other witnesses on the panel will be Lawrence Blanford of Philips, Jack Valenti of the MPAA, and Chris Murray of Consumers Union.

I’ll post my written testimony here later. I’ll also post my impressions of the hearing afterward.

UPDATE (4:50 PM): It appears that a live Internet audiocast of the hearing will be available on capitolhearings.org, starting at 9:30 AM (Eastern). The hearing starts at 10:00 with a panel discussing the subpoena issue; I’m on the second panel.

Yesterday’s New York Times reported that recording industry lobbyists are shocked, shocked to find porn on popular peer-to-peer networks. Naturally, they think P2P should be heavily regulated as a result. Somebody should send them a copy of Michael Kinsley’s classic Slate editorial on the most dangerous of all media: paper.

James Grimmelmann at LawMeme explains a recent opinion by the Ninth Circuit Court of Appeals, holding that a party that used an obviously improper subpoena to get information from a computer can be sued for breaking into that computer. If you think about this, it makes some sense, if the subpoena was used to defeat ordinary security mechanisms.

This week, the Economist ran an odd piece comparing the SCO/IBM dispute to the Scopes “Monkey Trial.”

SCO, for anyone who has never heard of the company, is pronounced “skoh”, as in Scopes. Indeed “the SCO case” of 2003 sounds increasingly like the famous Scopes Monkey Trial of 1925, which pitted religious fundamentalists against progressives wanting to teach Darwin alongside the Bible in American classrooms. The SCO case plays the same role in a culture war now consuming the software industry. On one side are the equivalents of the fundamentalists—buttoned-down types clinging to proprietary and closed computer systems. Facing them are today’s evolutionists—the pony-tailed set championing collaboration and openness in the form of Linux, an operating system that anybody can download and customise for nothing. The 1925 trial had a monkey as its symbol; the 2003 case has the Linux trademark, a cute penguin.

It’s interesting that the open source crowd are cast as the evolutionists and the proprietary vendors as creationists. This would seem to imply that open source is the way of the future, and proprietary software is the way of the past. Surprising, coming from an outfit as traditionally pro-business as the Economist.

Apparently the Economist fell into the popular trap of reading too much into the SCO/IBM case. In the Scopes case, the facts were clear (Scopes had taught evolution) and the law was clear (it was illegal to teach evolution). Only the constitutional and public-policy issues were really on the table for discussion. The trial was a debate disguised as a legal proceeding.

In SCO/IBM, by contrast, the facts are very much in dispute. IBM stands accused of simple copyright infringement and breach of contract. The policy issues surrounding open source are not on the table; and it seems to me that enough is at stake for both parties that neither one will try to turn the trial into a public spectacle. Outside the courtroom we’ll hear lots of noise, but inside the courtroom I predict a straight-ahead trial on SCO’s allegations.

In any case, both sides are uniquely resistant to the obvious typecasting. The open-source side would typically be painted as anti-capitalist ponytail-and-Birkenstock hippie leftists – but that image just doesn’t fit IBM. And the proprietary-software side would typically be painted as plutocratic Goliaths bullying a poor, idealistic David – but the Goliath role just doesn’t fit SCO.

There are important economic and policy issues involving open source, but the SCO/IBM lawsuit is a singularly poor vehicle for exploring them.