Fordham law professor Sonia Katyal has an article up @ the SSRN Electronic Library that brings to mind a question I asked some months ago over @ Copyfight: Why do we tolerate in the name of copyright protection what we only unwillingly tolerate in the name of combating terrorism -- e.g., law that strips us of our right to privacy and due process?
The paper, entitled "The New Surveillance," describes in detail how the courts aid and abet new, extra-judicial regimes of private/corporate surveillance on the Internet -- and proposes, among other things, "greater judicial supervision of the DMCA" as an appropriate fix.
Writes Prof. Katyal:
In cyber-literate circles, it's common knowledge that the DMCA has been a dismal legislative failure. For years now, every new DMCA lawsuit trumps the last for absurdity. And it sure hasn't made any perceptible dent on "digital piracy." As detailed in our "Unintended Consequences" report, it's been consumers, researchers and competitors who have had the most to fear from the DMCA.
But Congress hasn't heard the message. Until now. This Wednesday, May 12th, at 10:00 a.m., the House Energy and Commerce Committee subcommittee on Trade, Commerce and Consumer Protection is holding a hearing on H.R. 107, also known as the Digital Media Consumers' Rights Act (DMCRA).
Here in DC, the rumor is that tomorrow's hearing on the DMCRA may become an all-day affair, with as many as 13 witnesses on three consecutive panels. In addition, it appears that there was a last-minute, behind-the-scenes, ultimately unsuccessful effort by the motion picture industry lobby to get 321 Studios' CEO Robert Moore removed from the witness list.
Why? Perhaps because the MPAA doesn't want Congress to hear from the over one million users of 321 Studios' DVD X Copy software. Jack Valenti, in perhaps his last appearance before Congress as MPAA chief, will almost certainly testify that the American consumer cannot be trusted with the terrible power of making back-ups of DVDs they legitimately own. DVDs, he will intone, are like fine crystal -- once scratched, you'll just have to buy a new one.
As of today, DMCA reform has a very real chance of passing the U.S. Congress. The biggest ray of hope for those of us who care about fair use came not from what happened at the hearing itself, but rather, at a lunch session that took place during a recess in the testimony of the 13 (!) witnesses. It was there that Rep. Joe Barton, Chairman of the full House Energy and Commerce Committee and a co-sponsor of H.R. 107, announced that he intends to see the bill marked up (a prerequisite to approval), passed by the subcommittee, passed by the full committee, passed by the full House of Representatives, and ultimately signed into law by the President.
At today's hearing, the following Congressmen demonstrated a real understanding of why H.R. 107 matters to consumers, to libraries, to researchers, and to competition:
A trio of responses to the DMCRA hearing on Wednesday:
It would great if everyone could just take a loyalty oath at the start and thus get beyond the endless querying about whether they believe in some sort of heretical radicalism. Something like:
"I am not now, nor have I ever been, a member of the Communist Party. I pledge allegiance to copyright, and to the intellectual property system for which it stands, one compensation, responsible, with property and profit for all."
The most remarkable testimony at last week's DMCRA hearings was that of former Congressman Allan Swift.
Swift was testifying as a private citizen, as a "home recordist." Basically, he's been making "mix tapes" for 54 years:
In that time, I have given friends many tapes, cassettes and now CDs containing "programs" I have created from my own collection of LPs and CDs. In that time, I have never made a straight duplicate of a record for anyone. If they ask me to, I tell them politely how easy is it to buy it on the Internet. In that time I have never charged a person a penny - even for the cost of the raw cassette or CD blank. It is just my hobby.
This just in: the California Institute of Technology and Loyola Law School are presenting a mock trial this Friday, May 21st, to play out a scenario in which a student creates a distributed computing application to crack DRM systems, leading to the criminal prosecution of everyone involved under the DMCA.
On a panel a few weeks ago, I asked the head lawyer for Apple's iTunes Music Store whether Apple would, if it could, drop the FairPlay DRM from tracks purchased at the Music Store. He said "no." I was puzzled, because I assumed that the DRM obligation was imposed by the major labels on a grudging Apple.
Thanks to the recent Berkman Center report on the iTunes Music Store, I think I understand.
A group of influential Republican senators have introduced a bill to make permanent the civil liberties-corroding provisions in the USA PATRIOT Act that were sold to the public -- and to Congress -- as temporary measures. These provisions are among the most controversial in the Act, and for good reason: they represent an extraordinary assault upon our most basic rights as U.S. citizens. The fact that they expire is one of the only checks on this assault.