summary of hearing

Phil Gengler
2003-05-06 08:14:33

On Friday, May 2, I attended a hearing before 5 members of the Library of Congress, supporting an exemption to the DMCA's section 1201(a)(1)(A) prohibition on circumvention. I was arguing for an exemption to be made for allowing decryption of CSS encryption (the encryption used on nearly all DVDs) for playback on computer operating systems for which DVD CCA-licensed playback software does not exist. The hearing, while scheduled to include several areas of circumvention involving DVDs, primarily focused on two areas: DVD backups and region coding.
The other attendees of this hearing were Ruben Safir (NY Fair Use), Robert Moore (President, 321 Studios Inc.), Michael Einhorn, Bruce Turnbull (DVD CCA), Fritz Attaway (MPAA), Shira Perlmutter (AOL Time Warner), and Steven Mitchell (IDSA). Myself, Mr. Safir, and Mr. Moore were in favor of exemptions (for varying classes of works), while Mr. Turbull, Mr. Attaway, Ms. Perlmutter, and Mr. Mitchell opposed exemptions, with Mr. Einhorn trying not to take sides.

Ruben Safir's argument was a bit broad, in that he sought to have any protected work exempted on the basis that DRM is theft. I agree with the sentiment, but I don't think that a hearing on something as specific as 1201(a)(1)(A) was the place to try and get this done. He did say that getting the message out to the press was important, and in that, it's quite possible that he was only doing this as a way of generating publicity for his cause. His argument went all over the place, lacking a specific focus on anything in particular.

Second to speak was myself. I had a very brief talk about how nearly all commercially available DVDs are encrypted with CSS, yet all players are available for Windows or MacOS. All in all, it was a rather unremarkable argument, which didn't generate very much reply from anyone.

Following me was Mr. Moore. 321 Studios is currently in a lawsuit in California over their software DVD Copy-X, which allows people to make backup copies of DVDs. He had a very nice presentation, detailing exactly how the software worked and what measures it employed to prevent it from being used to make illegal copies of movies. He cited a number of submitted testimonials to DVDs which had become damaged and were no longer playable, and then relayed how his software is often able to gain access to data on the disc that normal DVD players can't read. His other main point was the ease with which a DVD could be rendered unplayable, beit to scratching, warping, or delamination.

Mr. Einhorn followed, talking about how he wasn't in support of or in opposition to exemptions, but that he was there only to address concerns from both sides on an economic level (he has a Ph.D in economics). He primarily address region coding, and didn't have much beyond that.

Which brings us to the opponents of exemptions. These nearly all addressed the same points, with the primary focus being on region coding, something that received little more than passing mention in the talks of the previous speakers. Only Mr. Turbull of the DVD CCA has anything to say about the 'Linux issue', saying that the CSS license is 'OS-blind', and that they had licensed it to at least 2 companies making Linux DVD players. Of those, he said one was still pursuing this, though his fatal admission (which I hope to address in post-hearing written comments) is that the company's DVD player is OEM-only, meaning to use it you have to buy a drive from a company bundling that software.

All in all, the talks were rather dull, but the question & answer period certainly brought new life into the hearing. This was the chance for the 5 member panel from the LOC to ask questions of the participants. These questions nearly all concerned region coding at the outset, a topic which was admitted by Mr. Attaway of the MPAA to be purely a marketing tool, designed as an intentional replacement to the NTSC/PAL/CCOM standards for VHS that exist. The studios claim that region coding is needed to ensure a film is only marketed where desired, even calling it (in there own words, this is a direct quote) "price discrimination". It was asked why the studios couldn't just NOT market a film (or certain versions) of a film to certain areas, and why they felt they needed to prevent people in those areas from even being able to watch these films. They didn't have any appropriate comeback to that, I felt.

The questions were mostly hypothetical, but the MPAA and AOL TW were playing semantics with them. For example, concerning the Indian movie industry, it was asked that if an Indian filmmaker released a movie on DVD with the Indian region code, why shouldn't someone in the US be able to circumvent that region code to watch the movie? The reply from AOL TW was that Indian films were not under US copyright and therefore didn't matter to these proceedings, ignoring the fact that while the situation was hypothetical for the question, it's entirely feasible for a similar thing to happen which DOES fall under US copyright law.

What eventually came up was the scope of the LOC to create exemptions. This authority is granted under 1201(a)(1)(C) and 1201(a)(1)(D), the latter reading "The Librarian shall publish any class of copyrighted works for which the Librarian has determined, pursuant to the rulemaking conducted under subparagraph (C), that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected, and the prohibition contained in subparagraph (A) shall not apply to such users with respect to such class of works for the ensuing 3-year period." The opponents of exemptions argued if an exemption were to be granted for a non-infringing use, it would 'legalize' infringing uses that employed the same technological mean, and that any exemption would be 'overbroad'. I thought this was the most ridiculous thing they could possibly have said, and made the point that if the LOC doesn't grant an exemption simply because there is some infringing use that someone may conceive to be legal, then that entire section is worthless, because no exemption would ever be granted just on that basis. I also noted that any infringing use would still be illegal and covered under other sections of the copyright code.

At the end of the day, the panel's favor seemed to be with the opponents, though one can always hope I'm wrong in that observation. I hope to be allowed to submit written comments and clarifications following the hearings, since a number of point were mentioned in passing that I'd like to be able to expand on. A transcript from the hearing should be available within a few days, and when it is, I'll certainly link to it from here.