Objections notwithstanding, 1201 needs reform

Professor Lee Hollaar has just produced a fairly brief piece for the Institute for Policy Information called, “A Bad Trade: Will Congress Unwittingly Repeal the Digital Millennium Copyright Act and Violate Our Trade Treaties?

I have to be honest here: Hollaar’s “bad trade” is a bad article. Before I get into my extended rebuttal, however, let’s do a few quick links. H.R. 1201 would amend Section 1201, and it would be a good idea for several reasons. Interestingly, content industry advocates from Fritz Attaway (MPAA) to Rep. Mike Ferguson (R-NJ) to computer science professors from Utah have taken swipes at this bill, and that’s just in the last week. It’s getting people’s attention, and that’s a good thing.

Now, on to the rebuttal.

First, Hollaar argues that H.R. 1201 will violate our treaties. There is little chance of this and, even if so, no threat that other signatories would mind. When Title I of the DMCA was being debated, even its most fervent proponents (including then-PTO chief Bruce Lehman and Rep. Bart Gordon) explicitly acknowledged that the bill far exceeded the WIPO treaties’ mandates–the very mandates that were the title and justification for the bill. Rep. Gordon insists, ““once we pass something here, it has to go to the international community. … They are really waiting for us to see what we are going to do. So whatever we do is the ceiling, not the floor.”

Hollaar also fails to mention that the CAFTA language is obviously there because US negotiators insisted. With all due respect to our Latin trading partners’ cultural heritage (I mean that!), the CAFTA language and the aggressive WIPO interpretation are both obvious examples of policy laundering (pdf). These are not policies that the general public would support, so diplomats go abroad, insist on “better” (i.e., worse) language in treaties, and come home insisting that we have to implement these anti-democratic laws in the name of international relations. I was not there, but I will virtually guarantee that this language wound up in CAFTA due to US arm-twisting. Poor countries benefit more from cheap information inputs than well-protected information outputs. If we back off, that will shape the treaty’s interpretation in a way that will please the other CAFTA signatories.

Next, Prof. Hollaar fails to take a realistic account of the place of actual DRM in the actual market. He approvingly cites the federal mandate that all DAT recorders implement the SCMS copy control system (p. 2) without mentioning the fact that SCMS killed DAT’s competitiveness or that Sony has since stopped manufacturing DAT machines.

He also fails to acknowledge the widespread use of circumvention technologies by both wholesale infringers and people who seek to make generally noninfringing uses–the extant failure of the law to prevent the distribution and use of circumvention technologies. “Provide a loophole, and you’ll see the devices being sold or the programs available” (p. 2), he insists.

They may not be sold (much in the US) today, but circumvention programs sure are available. Google “DeCSS”, Professor Hollaar, and let us know what you find. I subscribe to two different Mac magazines, and each has reviewed at least two user-friendly DVD-ripping programs. I did a survey of academics on a cultural studies listserv, and over one quarter admitted to using DVD circumvention programs to make video clips for classroom use. These programs are easily found, commonly used, and applied for both infringing and otherwise noninfringing uses. If we’re not stopping piracy, why strip these rights from regular consumers?

My favorite paragraph in Hollaar’s article, however, may be:

Beyond an objection to anticircumvention in general, there was no opposition to the Section 1201(a)’s circumvent to access provision as the DMCA was being considered, except for a concern that it might allow the unwarranted locking-up of material not protected by copyright. Congress addressed that with a provision allowing the Copyright Office to issue rules every three years exempting classes of works from the provision upon a showing of an impact on criticism, comment, news reporting, teaching, scholarship, or research and the effect of allowing circumvention on the market value of the copyrighted works.

In the first sentence, Prof. Hollaar shows that he did not read the hearing testimony very closely. (And if you didn’t read something closely, it is clearly best not to make sweeping claims about what is not in there.)

Robert Oakley, representing 5 library associations, told a House Commerce Subcommittee that 1201 “could convert America’s libraries for shared resources for a community into pay per view information outlets.” He also objected that fair use would not be a defense to the access provision. Jonathan Callas of Network Associates Inc. insisted that what became 1201(a)(1) would chill cryptographic research. Ed Felten and Dmitry Sklyarov would certainly echo that refrain.

In reaction to the second sentence, and as somebody who HAS studied these documents closely (not to mention testified), the triennial exemption rulemaking is entirely inadequate (both in statutory mandate and in implementation) at preserving the right to make noninfringing uses. At this year’s rulemaking, I was sitting right next to Jonathan Band when he called the proceeding a “kabuki”. EFF and Public Knowledge both stayed away in 2006, an implicit (PK) or explicit (EFF) declaration that the whole thing wasn’t worth their time. I discuss the problems of this rulemaking in much greater detail here: Catch 1201.

Finally, Hollaar insists that there are no “real problems” (p. 5) with Section 1201. He elides the Sklyarov case, in which a Russian programmer was essentially arrested for “breaking” a US law while in Russia and daring to talk about it in the States. He also refuses to acknowledge that Felten actually was silenced. Felten failed to deliver a scheduled presentation, to fellow encryption researchers and not the general public nonetheless, because of a 1201-based legal threat. Read Felten and Hollaar talk about it in more detail here. Note how Felten fumingly calls Hollaar out for the latter’s strategic misrepresentations of the facts.

If Hollaar were to examine the documents from the Copyright Office’s triennial rulemaking (instead of just talking about it glowingly) he would see several unresolved problems. The problems with DVDs alone could fill an entire journal article. To this day, Linux users cannot watch legally purchased or rented DVDs on their own computers without violating 1201. In the 2000 rulemaking, the Copyright Office told Linux users to buzz off and buy a Windows or Mac box.

Online movie critics cannot make excerpts of DVDs without spending hundreds of extra dollars for visibly (and sometimes unacceptably) reduced output quality. In response to this concern, the motion picture industry has twice urged critics to point their video cameras at their television sets. This year, when they demonstrated the results, Brad Pitt looked green. In 2003, at least, the Copyright Office agreed that this was an acceptable substitute for digital quality.

Teachers cannot use DVDs in the classroom without wasting class time, violating the law, and/or spending hundreds of extra dollars. That was the subject of a proposal by Peter Decherney, Michael Delli Carpini, and Katherine Sender (pdf) (disclosure: all profs at Penn, where I am a Ph.D. student and one of Delli Carpini’s advisees).

That’s just the list of problems with DVDs, but the problems with 1201 go on and on and on. Thanks to 1201, librarians are less able to archive our digital heritage. Teachers, students, and garden-variety end users are less able to help themselves to reclaim their legal rights such as fair use. Encryption researchers are less able to innovate (or to help us solve problems like Sony’s rootkit). All because of the mere threat of litigation–regardless of the admittedly low number of cases that actually go to trial or result in cease-and-desist notices. We wouldn’t say that a society that only occasionally beats and jails journalists has no problems respecting a free press. Make a few “examples” and most of the others will behave. Likewise, the mere threat of litigation backed by occasional lawsuits is a clear suppression of the right to make noninfringing uses of materials that are under digital lockdown.

Here is Hollar’s closing paragraph:

H.R. 1201 should not be the mechanism for putting the United States in violation of its trade agreements. If such a far-reaching decision is to be made, it should be after careful debate based on an understanding of the anticircumvention provisions. It should not happen by the passage of a misleading bill that repeals the provisions through stealth.

I’ve already rebutted the “violates our trade agreeements” argument above, but Hollaar essentially concedes that the trade agreements argument can be beaten by a “careful debate” about the effects of Section 1201.

The careful “debate” has raged for years in the law reviews, except it’s almost too lopsided to be called a debate. Beating up on Section 1201 has gone from de rigueur to borderline cliché. Everyone from 3Ls to David Nimmer has taken a swipe or three, and defenders are much harder to come by. I wrote a lit review summing both sides while writing Catch 1201, and it was actually fairly difficult to find a wide swathe of reputed scholars who think today’s Section 1201 is good law.

Additionally, the “stealth” allegation is a joke (not to mention an ad hom). I was at a House Energy and Commerce Subcommittee hearing today where Boucher was very explicit about supporting H.R. 1201 in order to restore fair use. It was a hearing on the broadcast flag, and Boucher is using the flag bill as a negotiating chip and a platform for advocating H.R. 1201. He could hardly be less stealth about it. (If you’re going to close on an ad hom, at least make it credible.)

I could go on and on, but I’ll stop now, except for one parting swipe at the publishers. The Institute for Policy Innovation has every right to publish whatever half-cooked papers it sees fit. But their motto, “Advocating lower taxes, fewer regulations, and a smaller, less-intrusive government,” just doesn’t square with defending an intrusive paracopyright that demonstrably leads to capricious, anti-competitive lawsuits and suppresses research and innovation.

When will groups such as IPI and the Progress and Freedom Foundation, so-called “laissez faire” information policy groups, just come out and admit that they’re pro-regulation or anti-regulation depending on whichever is in the best interests of the biggest corporations?

Update: This entry is now cross-posted on the Public Knowledge policy blog.

Update 2: Thanks to Seth Finkelstein for the link. (Yes, this blog is still deep enough into the long tail that it’s worth my time to thank people for links.) Seth’s contributions to the DMCA exemption hearings, a vital part of the war against digital censorship, also warrant praise.