Sponsored by: Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO)
Highlights: 8 a.m., March 5, 2003 – FCC Commissioner Jonathan Adelstein, keynote address
Where: Marriott Metro Center, 775 12th Street NW, Washington, D.C.
Contact: Martha Silver, 202-659-5990; http://www.opastco.org/conventions/2003LNR.htm
Stanford University sponsored this conference (overlapping in time with the Digital Rights Management conference in Berkeley) on spectrum policy. Lots of good coverage on blogs; video is also available.
Digital Rights Management isn’t a new concept, but has taken on a new urgency following the passage of certain laws and industry efforts now having controversial effects. A conference was held in Berkeley, CA over the last few days. I blogged it, plus there are great resources online, with more coming: transcripts (TBD), audio, and video (TBD).
Anti-circumvention regulations in the US and elsewhere
Mark introduces panel.
Tony Reese: which DRM systems? how efficient and effective? US law controls access and rights. DIfferent legal treatment: access gets more protection than rights; acts of circumvention (DIVX), if 24 hour license and you hacked around to view, illegal. Rights not protected in same way. DVD allows user to see on screen but not on LCD, limiting right to public performance; circumvention but not violating law, if viewed in class, no liability under copyright infringement. Max legal protection under DRM is about access. Caselaw: copyright owners may not have to choose: may merge into single system: CSS example. Allows play on compliant player, allows watching but not copying. Trusted systems vs compliant. Legal effect: merged systems have both protections, DeCSS case was premised on access circumvention device. Leg history not intended to ban rights control if non-infringing, no legal liability. Effect of merged systems sucks all oxygen out. (read paper online)
Graeme Dinwoodie: EU copyright directive: Denmark and Greece only members that have laws. member states under constraints about DRM regs, from EU et al. Some try creative things: German protection for labeling. Generally treatment between access and rights are equal, but no exemptions. Article 6-4. Exemptions must exist in national law, but member states not harmonized. Appropriate measures: trigger for tech measures. Focus on uses and purposes. What are approp measures required? arises in absense of voluntary measures, after reasonable time. Based on future effects, future harm. Obligation to promote vol measures, second to deal with imbalances. British proposals look like DMCA rulemaking.
Bernt: levies: a European perspective. appear to be on their way out, seems to be on way in here in certain academic circles. Levies contrast to collective rights management (see his slide). Private copying levies: equipment, blank media, levy system different per countries (none in UK and IRE). German home taping cases (1955-1964): considered copyright infringement, equipment mfgrs liable for contrib infringement; levy compromise between rights and privacy. EC Copyright directives: promotes and protects DRM, levies mandated for copying (5.2.b), levies being phased out. How to “take aaccont of (non)application Tech measures? degree ofactual use, availability of measures (incl cost, acceptance, privacy, compliance with the law)
Questions:
Fritz from floor: levies on VCRs, if absurd, why have so many democracies in Europe adopted it? BH: defend Valenti? That’s a trick. Choice isn’t between prohibition or levy, choice between monitoring or invading privacy, it’s a difficult choice. Problems started w/ contributory liabilty. ML: prohibitions not same as tax, different systems.
Don Whiteside, Intel: efficiency of levy infrastructure, compensation paid to rights holders, rates, methods, how much of the funds make it back to rights holders? BH: little transparency, tariffs set haphazardly. Levies are being repartitioned is murky. Spectacular difference between countries.
Mike Marion, Phillips Electronics: Home recording act has levies, left a large loophole. Anybody have feedback on how well that levy system has been used in US? TR: talk with copyright office (people here), some funds are being paid. Computers carefully exempted from HRA, not a lot of info out there about how much or to whom.
Pam: closing, thanks. More to be available from DRM conf website soon.
Billy Schwartz, Morrison/Forrester gives intro to David E Nelson Memorial Keynote Address: both David and Rep. Zoe Lofgren struggle for balance, public and private interests. Bio for Nelson.
Zoe Lofgren: Massive digital media revolution changing the way we interact, arouses deep emotions in content community. quote from Jack Valenti: boston strangler to woman home alone (VCR). now Armageddon, skipping commercials, perfect digital copies, DMCA; content owners were supposed to embrace digital tech, now 5 years later just experimenting with distribution. Law has adverse affects on consumers. What are we protecting? Secure for limited times, to promote the sciences… part of a deal between society and inventors/artists, to advance science and culture. Problems DMCA cedes too much power: not just price of digital books but prevents sharing or other uses. Format doesn’t change expectations. Now unlawful to disseminate fair use, no balance now. Copyright never before gave such power, unintended consequence. Destroyed first sale doctrine (Congress), potential to extend copyright in perpetuity. Watched Lessig argue Eldred, very interesting, decision was bizarre. Dampening tech competition (DMCA), not intended either. SonicBLue: 25% spending now in litigation. Lexmark: none of us had this in mind. No content being protected, hard to get venture capital if half of your spending is litigation. Tech for streaming desktop to flatpanel on wall, can’t get signal there–it violates DMCA. Songs streaming over cellphones abandoned for same reasons. Some consumers tick-offs: WDET suspended radio streaming; RIAA rules (to John Conyers, MI) 104th congress (Zoe sworn in), not ready to deal with copyright. First draft of bill outlawed web browsing, early techies didn’t think Washington meant anything to them. (Yahoo, Mosaic, et al). Some in the tech world now pay attention, hired representation to help them keep abreast. Newer bill has better protection, see it online. DeCSS: shouldn’t be prohibited from breaking into your own property. Access to content under concern shouldn’t be individual backups, should be 1M copies sold in Brazil. Understand that this is not limited to US: agreements abroad are contingent on accepting our version of DMCA.
Panel: DRM-related legal and policy initiatives in the U.S.
Pam: wide array of content, some lawful, some not. Proposals (Hollings of last year) and Broadcast flag proposal would strengthen rightsholders, other bills give better balance. Wyden’s consumer protection re: labelling. CD’s harm to computer suit just survived motion to dismiss. DMCA not being used just to get rid of black boxes, but wider uses, more controversial now, call to reform to limit unintended consequences.
Q: Congressional concern about widespread copying; will DRM solve?
ES: law has problems but is good law, villifaction astounds me. Piracy costs $11B/year, steals jobs, revenues, innovation. DMCA is a tool, can be misused. Incarnation as tool to overreach is fantastic: reality doesn’t match well. Pam: not the question, is DRM. ES: is one of many tools. RE: need strong mgmt right, Hillings bill is silly, but if system charges for content… don’t want first sale doctrine in this world, one free copy gets out and copies are made, entire technology is lost. FA: Emery’s answer is right, unlimited copies are biggest problem. Need to increase security, in theaters, screenings; enforce rights under copyright laws, expedited subpoena process, “a deal was made in 1998, safe harbor with expedited subpeoena process.” Consumers provided w/ content in more convenient form. EB: supporters of strong copyright, balance w/ promoting innovation. DRM is wrong question: problem is not just piracy, digital revolution has thrust change, legitimate interests, second level changes. Piracy is piece of problem, but how to structure entire info flow: DRM is both tool and weapon. JB: Consumer org representing consumer interests: DRM is part of solution, lots of leakage, not a perfect solution, DRM will be deployed, pay attention to that employment. JH: eMusic is non-DRM format distrib, napster still had enforcement tools but didn’t use them? DRM is a tool, but not necessary. If eMusic was successful wan’t DRM, it was about content. Think carefully between DRM and business model: don’t have to have it for enforcement.
Pam: Hollings bill not in this congress, but B’cast flag. Fritz: what’s up?
FA: not similar proposal at all. Core: communications issue. Cable and sat delivery syustems can protect content, but over-air b’casters don’t, need level playing field to prevent redistribution over Internet. Otherwise broadcasters will migrate, no free TV. JB: B’cast flag had different intent than Hollings (one size/tech fits all), difficult to describe how flag will be deployed, may be like Hollings. Criteria? who makes decision? Gov regulatory role in terms of imprimateur on technology. Language: Hollings mandate, DRM standards. Consumers w/out clear role don’t see it other than a mandate. serious issues, requires consumer voice. ES: Tech companies opposed to Hollings, too early to tell if FCC is mandating. Potential is there. EB: I’d agree w/ potential to be mandate: Hollings bill terrible bill but wonderful legislation as to galvanized debate. Participation, openness, competitiveness, issues cloud mandate or standard, likely format gives huge leverage to allow small group of companies enormous change, might have a very bad situation. MT: questions you’re asking may not be questions you mean to ask. NOthing wrong with being a monopolist, but depends on how you got ther and what you do w/ monopoly power. Question: does standard overbroad and casts chill on innovation? Not DRM yes or no, under what context is it being developed and used. People talking from extremes, not the field of dreams. Lot of people want access to content, increasingly demand-driven economy, little being done to understand demand. Like eating your young. RE: marked content not subject ot unauthorized use, restraints appropriate? Specifics? RA: what monopoly problem do you see? Mozelle: you’re not a monopoly but that’s not what you say in Washington. FA: Copyright described as a monopoly, exclusive right to maintain control. Incentiv (lost a few words)
RE: monopoly can mean different things: Eldred gave monopoly for nothings. What’s mechanisms, not aspirations? Give me the details. JB: lots for it, lots say ineffective. Who controls and make decisions about technologies and market that would work w/ flag to permit other uses and permissions? allowing Internet to be part of home entertainment network? 3 studios would have to agree that tech is robust and compliant: giving power to incumbents? FA: selective reading, that’s one of 4 criteria. FCC can measure, open to new innovative technology IF equally effective. Irresponsible rhetoric: it only permits redistrib over digital networks. JH: one impact: no way to have ethernet, connection is encrypted, can’t use ethernet. FA: right today. Our only problem is mass redistrib to tens of millions of people, destroys after- market for TV. JB: can I send a snippet elsewhere? FA: if tech exists to send snippet securely MT: monopoly problem when consumers can’t make informed decisions. Not de minimus, but if problem is dwarfed by solution, it’s a problem. Answer is in the middle, must have flexibility, standards appear at outset to be overbroad. FA: Tools appear overbroad, but DVD: certain fair uses are not possible because of CSS, was necessary to movie producers, now really successful. Weigh consumer benefits against negative impacts (de minimus). MT: issues: potential chilling effect or harmful products w/ no disclosure is problematic. AOL/TW merger, movie industry and others asked to put strong concditions so that pipe couldn’t chill standards for set-top boxes. How to respond now? RE: ignorance eis bliss on these panels. Fragments: 10 who want assemble, precipise environment: one lost copy = billion copies, instantly cascades. But we don’t konw how this works. If content specific and machine general, should be ok,. Hollings off the table. If all his way or leakage, would rather have choice. EB:huge power in small group of companies, can steer tech & choke innovation. Simiilar technology” can keep us in litigation for years. Pam: BF does’t just do tv tuners, will also cover downstream devices. FA: No proposal on the table gives us that power. ES: that’s not entirely accurate: BF covers one, other sources of leakage. Fear w/ BF approach: regulatory interventionist model w/ gravitas thereafter. Not only tech drives projecct, but by solving in bad ways, it kills tech and hurts you too. FA: so we should not solve a problem if it cold possibly in the future it could be a different problem? RE: Exclusive barrier? Does giving FA control over lever kill tech? not specific, ES: DVD protection before CSS, mandate, would have made tech problems; figure out diff standards.
Pam: Jon, what about covering this kind of tech?
Jon: Try to understand as user would, get past engineering details, lots of these are process debates, readers care about results. What’s problem being solved? BF about redistribution, illustrated by Napster in music industry. What tech might solve problem? ATSC had identified set of bits to trigger, then policy question which is about what’t he problem is, then what happens? (imagination.) JB: in trying to probe Richard’s queston, I asked Fritz… we have to explore how this standard is going to work, need to get inside the process. Debate doesn’t shed light on issue. Pam: mandates or legislation, standarts process; public interest doesn’t/not included by large concerns.. ES: tension: they are open, but expensive, time consuming, requires tech know-how. Public interest forums like FCC or congress, different problems arise. JB: we’ve been fighting for years, only have a voice at FCC. NO PI chair at table. Looking for ways. Consumer orgs: attempt to work on standard in process. FA: another safeguard, bodies are open but inconvenient or impossible for consumers, but they vote in marketplace. RE: that’s not what you’re worried about, concerns are for pre-market. No valid public voice. “Save the dictator,” process is very difficult, are we strengthening market or monopoly. ES: evidence that marketplace will respond: cycle, titghteing DRM, consumers scream, loosen, piracy, tighten. Abandon tech that doens’nt work. Dongles. EB: standards and open process: key measure is number of players, some dominated by few very large players. BF this is a problem. Certain surrogate capability in some groups, needed in others. JH: who decides which programs carry BF? Policy decisions should not be w/ technologists, should be in congress? MT: it is ijmportant: no one group has answer, not certain narrow issues. Diveristy of view, may not be fixed in stone, is valuable. Market is great force but imperfect. Otherwise you wouldn’t have us for course corrections. Standards setting orgs generally good, but circumstances where gov or industry groups becomes corrupted? extending outside what they’re trying to control? Pubilc forums gov sponsored not fringe: meetings on spam, etc. where FCC takes no acation to see what develops. JB: ball driven forward by gov forums, terrific role for FTC (convening). Consumer is not dispositive, free speech and privacy rights conflict w/ majority opinions. Must be addressed, esp in closed systems: should some content be unflagged? FA: 1st amendment, court after court after court has said 1st A has nothing to do with… Pam; I’ve read those cases and that’s not what they say. MT: get to middle of what’s reasonable.
Pam: anti-circumvention regs? cases like toner carts and garage door openers are DMCA unintended consequences– tweaking to exclude from scope?
JB: several areas neeed tweaking: two points. Unless consumers are really organized and get intot he game, reps Lof/Bouch are flying alone. Serious interests don’t want to open DMCA to political realm even if they agree that changes need to be made. In the face of flag, DTV bill, others, fundamentally wrong message NOT to go to congress, they need to hear your voices. Content people are well know, have lot of power. Balancing requires lots of work by consumers. RE: mystified: how to tweak? compatible systems, implied exceptions? intermediate solutions are attracative but dangerous. FA: agreeing w/ JB: Boucher’s bill repeals DMCA. Prohibition against trafficing of illegal devices or circumvention. Boucher’s bill: tools ahve fair use values therefore not illegal. EB: history of DMCA: how to structure, political forces against certain features that passed, circumvention was unique: either everything is banned w/ exception for permissible uses, or default other way. Blanket prohibition was wrong, but won. Encryption research was one example that lost. No broad undersanding in congress about what they were doing, impact is far reaching (as predicted) for anti-competitive reasons. Pam: anati-trust problems, or will Congress need to amend? RE: analogy to this in telecom: now Trinko case. Standards to exclude, leg structure generally allows things to be blown open, Indiv players w/ separate properties, copyright crosses over to anti-trust. MT: never been leg prescription obout how industries work togheter. RE: enlarging FCC? preventing collusion, tightly brokered deals… MT: what kind of public voice? lots of money and interst, but not to say interest of consumers isn’t important or disorganized but can still inform legislators.. Antitrust tools: squealers. Thinking about what ijmpact is follows. Get survey about what’s happening on ground. ES: lexmark, unintended or unanticipated, as a matter of focus was piracy, now competitors in the marketplace. how to create fair uses w/out letting everything out of the bag, answer no. Fix as a matter of law: evicerated purpose of statute. EB: industries will be destroyed–talk aboaut overhype. RE: can you fine-tune? MT: that’s not the question. “if armageddon is going to happen…” RE: constraining fair uses, unless one copy = billions. JB: only way to get out of extreme characterizations, talk about facts and how tech works. Forum for discussion is missing and adversarial. Congress hearings, level of knowledge is small. Create forum, bring varied players to table. ES: speaking in absolutes is wrong. Fair use is about balancing: socially redeeming excuses unauthorized copies. Not same answer everytime. Too early for Zoe’s proposal. Lots of harm to public interest, hasn’t seen proof of that yet. JB: w/in constraints of DRM technology, same terms don’t apply, permission required and tech disallows, funndamental change to fair use. JH: presupposing universe gets DRM’d? if market allows, non-drm may win.
Questions:
Fritz, from floor: css can enable portability, update to allow protected outputs for other protected environments? FA: decisons out his realm, he’s not involved. JH: does intel have reference design?
Mark from fooor: consensus: Hollings bill is bad, madndates tech. WHy then is BF at FCC? market-based in devices in competition, market developing tools, favored by FCC means not about standards or market, it’s about regulation. FA: marketplace way to resolve is to encrypt from broadcasters. Policy implications are extreme, would render useless all consumer devices. RE: regulation is about content or box. EB: all compete a competitive marketplace where acceptible technology might emerge, where we’re going wrong.
Lucky, from floor: expensive receivers…software defined radio at a fraction of cost, robustness requirements of BF can’t be met, so consumer benefits can be kept off market. Is this in best interest to keep tech costs high? FA: HDTV sets must receive encrypted signals, sep from BF.