IN DEPTH ANALYSIS
The Coming Extinction of "Fair Use" and "Free Speech"
Pay per View (Read or Listen) Will Be the New Paradigm
October 10, 2000
Someone call the Environmental Protection Agency. Joining the list of such endangered species as the spotted owl and the snail darter are the traditional concepts of fair use and free speech.
Who are the polluters and destroyers of these increasingly rare species? The Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA) and the Digital Millennium Copyright Act (DMCA).
Upon the extinction of these species we will all live in a "pay-per-use" world where people no longer own books, movies or music. The copy you hold will merely be a rental contract and will require repeated "owner authorizations" before most uses are even possible.
Consider the following bulletin from Electronic Frontier Foundation ALERT -- Sept.. 30, 2000:
FCC Paves the Way for Requiring Anti-Copy Technology in Digital TV
Hollywood Continues to Dismantle Fair Use Rights in Digital World
The Federal Communications Commission (FCC) issued a ruling on Sept. 18 that allows Hollywood to require the manufacturers of digital VCRs, high-definition televisions, cable set-top boxes, and related equipment, to implement copy restriction technology into the devices.
Hollywood's latest attack on civil liberties limits the public's ability to make fair use of digital programming by imposing restrictive licensing schemes on the device manufacturers. Just as they impose a CSS license on the makers of DVD players that forbids any recording functionality to the consumer, Hollywood now wants to impose such a scheme on digital TVs, VCRs and other viewing and
recording equipment.
By inserting instructions into the digital programming stream that are obeyed by the hardware, the studios are able to control the public's ability to save or copy programming. Since the devices will only permit the consumer to copy the content that the studios code as copyable (not likely to be much, if anything), the public's fair use rights would effectively be extinguished in the digital television realm.
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How can this be? The law, as enacted through the DMCA, bans any user from the circumvention of technical encryption systems designed to prevent access to copyrighted works. In other words, you can't write, own or use a program like deCSS that allows circumvention of an encryption scheme. This has now been tested in court with Hollywood through the MPAA winning a smashing victory.
Curiously Hollywood and the MPAA has fought this battle before. The very famous SONY BETAMAX case, often cited during the Napster trial, ruled against Hollywood. And, in spite of the fact that Hollywood's loss paved the way for the biggest income stream in the history of the creative arts - the VIDEO RETAIL and SALE of TAPES - Hollywood is making certain they don't lose the battle ever again.
Congress Allows an Escape Clause
Inn passing the DMCA Congress was concerned they were being misled by the Hollywood consortium. So they built in a tiny escape clause. They allowed two years for consumers to petition the librarian of Congress to allow exceptions. This could occur only if the librarian of Congress determines that the public's ability to make non-infringing uses had been adversely affected through the enactment of the law.
But such a determination must be made by October 28th of this year. And when Congress enacted this law they, digital copying and use was in it's infancy. No one envisioned mp3's would become the medium of choice in the digital generation.
As a result, academics and free speech and fair use advocates have been appealing to the librarian of Congress for relief. Unfortunately, the law may have mandated an answer from the librarian much too soon. As the mp3.com, deCSS and Napster lawsuits are proving, the technology is changing faster than judges and decision makers can comprehend.
With massive financial donations lining politicians pockets, the result will probably be to lock the barn, rather than risk losing the horses.
The consumer will lose the ability to use and copy music because, by law, all computers, audio and video equipment must contain and use encryption and copy protection devices.
"The future of fair use and other traditional copyright defenses will be determined, in significant part, by the outcome of the current rule-making," wrote law professor Peter Jaszi, on behalf of the Digital Future Coalition, an online civil liberties organization composed of nonprofits and Internet companies.
"Access controls could be employed to prevent consumers from ... viewing the ... products they had purchased," Jaszi said. "Unless, of course, they were willing to pay again and again for the privilege!"
Jaszi's comments came as part of hearings held earlier this year by the U.S. Copyright Office on the DMCA's anti-circumvention provisions.
The motion picture industry tried to make this a reality with the failed DIVX concept. Consumers rejected it. The public won, right?
Not a chance!! Using the September 18, 2000 ruling by the FCC and the growing body of case law, Hollywood will make their own dreams come true. Every digital device you own will be programmed to control your personal use of every copyrighted product you possess. Whether it's pay-per-view, pay-per-copy or pay-per-read, that decision will not be yours to make. The copy of the book, movie or music will simply be a rental, with rights easily revoked by the copyright holder.
Think the WIZARD is shouting fire in a crowded theater (pun intended)? Don't take our word for it. We urge you to read the very in depth discussion of these issues and the power of the librarian of Congress in WIRED NEWS: "Fear of a Pay-Per-Use World" by Oscar S. Cisneros
Come on WIZ.... I can do anything I want on My Computer
The Electronic Frontier Foundation (EFF) and the WIZARD, fkap have often felt like "lone rangers" in the fight against the secure copy protection formats being proposed to "protect copyright holders."
In order to assist our readers in understanding the seriousness of these issues, we are reprinting a substantial portion of the Electronic Frontier Foundation ALERT (revised) -- Sept. 29, 2000, with their much appreciated permission.
The following section discusses the efforts of the Secure Digital Music Initiative (SDMI) consortium to protect the current copyright profiteers.
Preface
Several EFF staffers recently accepted an invitation to meet with members of the Secure Digital Music Initiative (SDMI) to discuss technical discrepancies between EFF's portrayal of SDMI-compliant devices/SDMI's current specifications and to open a dialog about the civil liberties concerns EFF has expressed regarding this technology. EFF would like to thank the SDMI representatives for an informative and thoughtful dialog exploring the technological and social issues surrounding this attempt to create a secure environment for the distribution of digital music.
Continuing the Boycott
The diligent efforts of SDMI to create a technology that secures content while allowing some potential to make personal copies is impressive. EFF, however, can not soften its stance against SDMI and continues to encourage hackers to boycott the "Hack SDMI Challenge" on the basis that the technology fundamentally restricts fair use, is anti-competitive and ignores previous lessons learned by the software industry.
SDMI is attempting to create a technical standard that will place a permanent watermark on digital content, starting with music, that will be used to strictly control its public use. At the core of SDMI's specifications is the requirement that SDMI-protected content can never exist in an unprotected state. Content containing an SDMI-compliant watermark will even retain its protection in an analog form, since the watermark is made part of the audio signal.
Under SDMI's specifications, content providers will have the power to
code their content with a set of usage rules that will govern how
consumers may use their music. These rules will then instruct the
SDMI-compliant device as to the number of times content may be
reproduced, if any.
Restricting Fair Use
SDMI compliance allows content providers to eliminate critical fair
use rights, such as excerpting portions of music files in high quality
audio and possessing multiple copies of music files that are not
disabled. A school orchestra director can be prevented from providing
students with musical excerpts through SDMI-compliant devices.
Journalists with such restrictions can also be kept from making
multiple copies for news stories. People who want to use content for
parody or satirical purposes can be silenced, not able to disseminate
their views through an SDMI-compliant architecture. Rap artists can
also be severely limited from reusing the material of other artists
without permission from the record companies. People can be kept from
making backup copies of purchased content. Also, SDMI compliance gives
content holders the ability to circumvent the "First Sale" doctrine:
the right to actually own instead of simply licensing purchased
content. Under SDMI specifications, content holders get to make
determinations related to all of these rights.
What the good folks at SDMI do not seem to understand is that fair use
is a right, not a privilege. Requiring people to get permission from
content holders to criticize their work is an unreasonable (and we
would argue unconstitutional) burden on their ability to exercise
their free speech rights. Permitting unlimited analog copying is not
an adequate solution, in that restricting protected speech to lesser
quality technologies does not satisfy the First Amendment.
Furthermore, EFF fears that anyone who circumvents SDMI's copy
protection mechanisms or the digital rights management schemes
enforced by SDMI will be opening themselves up to a lawsuit under the
anti-circumvention provisions of the Digital Millennium Copyright Act
(DMCA).
The Anti-Competitive Nature of SDMI
If SDMI were merely an alternative music distribution scheme that
offered artists a choice of protecting their works, as SDMI portrays
itself, EFF would welcome it into the marketplace of ideas. However,
when over 90% of the world's music content holders are together
creating this standard, there is no room for legitimate competition.
Everyone from artists to hardware manufacturers to consumers will be
required to use SDMI standards if they want access to the vast
collection of materials controlled by the recording industry.
The creation of SDMI as an organization has also given content holders
a convenient scapegoat around which they can mandate public policy
while maintaining an illusion of fairness. SDMI's policy has been to
wash its hands of any potential abuse on the part of content holders.
SDMI claims to simply set up an architecture in which content holders
are later free to choose the usage rules. What they fail to point out
is that SDMI and the content providers are the same people. When they
step out from behind the thin curtain of SDMI, content providers will
set the rules by which the world's public must passively listen to
their music without the opportunity to speak back.
Lessons from the
Past
The computer industry learned a decade ago that copy-protecting all
software was not an acceptable model for consumers. The software
industry has almost universally embraced open models of software
creation and distribution, like the open source movement. With
consumers already demonstrating their desire to own unrestricted
copies of their favorite music, one would think that the music
industry would take notice of the software industry's hard-earned
wisdom and put forth similar models of music distribution. Clearly,
some artists who are engaging in alternative models are already
receiving attention (and downloads!)
Don't Hack Away Your Rights!
EFF again urges anyone with the technical expertise to compete for the
"up to" $10,000 prize to refrain from doing so and to continue telling
SDMI--and your friends, relatives and colleagues--that you are
participating in this boycott and why.
If you are a hacker, reverse engineer, digital audio expert,
cryptographer or other targeted by SDMI's invitation, refrain from
giving SDMI free consulting on how to hack away at your rights.
Please:
- Refrain from participating in the "HackSDMI Challenge."
- Publicly say you are doing so (in your e-mail signature file, on
hacking, engineering and other relevant mailing lists, on your own
web page, and wherever else you deem appropriate).
- Write to SDMI ( info@sdmi.org ) and tell them that you refuse to
help them undermine your own rights, and why.
- Urge colleagues to do likewise.
- Inform and encourage musicians to participate in the SDMF
challenge through CAFE ( http://www.eff.org/cafe ).
- Join EFF!
If you are not a tech expert but are a user of digital music
technology, you too can play a role:
- Write to SDMI ( info@sdmi.org ) and to your favorite MP3
equipment/software vendor(s) and tell them that you want to be
able to choose how you listen to your music.
- Express your concerns with distribution systems that lock you into
a single technology or music player.
- Tell them that you do not appreciate being considered a thief by
default.
- Pass this alert around to your friends. (Please only recirculate
to appropriate forums if sending to mailing lists, etc.)
- Join EFF!"
If you are an independent artist, you can:
- Participate in CAFE and the SDMF initiative at
http://www.eff.org/cafe .
- Inform and encourage other artists to participate in CAFE and
SDMF.
- Release your material in MP3 and other open formats.
- Send your music to outlets that are dedicated to giving exposure
to artists using open formats such as Radio EFF
( http://www.eff.org/radioeff ).
- Tell SDMI ( info@sdmi.org ) you oppose any attempts to force
manufacturers to disable support for non-DMAT music in an attempt
to herd new artists toward the RIAA oligopoly.
- Join EFF!
If you are a "signed" artist, you can really help:
- Participate in CAFE and the SDMF initiative at
http://www.eff.org/cafe .
- Inform and encourage other artists to participate in CAFE and
SDMF.
- Release your material in MP3 and other open formats, when possible
under your contract.
- Tell SDMI ( info@sdmi.org ) you do not agree that protecting music
industry and artists' revenues is dependent on stripping everyone
of their rights.
- Tell your label you do not support SDMI or DMAT.
- Tell your fans (live, on your website, in lyrics, etc.) that you
do not believe they are all a bunch of pirates, and that they
should write to the labels and protest being treated like they are
all thieves by default.
- Contact us ( jm@eff.org ) about becoming more involved in speaking
out against the direction the industry is pushing the digital
content.
- Join EFF!
All above is directly quoted from the Electronic Frontier Foundation (EFF) ALERT and reprinted with permission. BOLD FACE Type has been added by the WIZARD, fkap for emphasis and readability of certain key points. |
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