DMCA Exemption Hearings

On the Penguinal Ebullience blog, a fascinating transcript of the DMCA exemption hearings from Friday:

The first of several hearings for exemptions under section 1201 of the DMCA took place at the Library of Congress today. Fortunate enough to have a cool boss, I was able to attend ‘on detail’. This set of hearings will cover the exemptions granted from Oct. 28, 2003 – Oct. 27, 2006. The first panel convened at 10:00 : half an hour late following a suicide attempt on the subway. It consisted of Seth Finkelstein (who has spent much of his own spare time and money over the past years cracking censorware databases ; he was fresh off the plane on his own dollar) and Jonathan Band (representing a number of library associations) supporting exemption for the decryption and compilation of the databases used by various censorware programs, and David Burt of N2H2 (which recently pulled off a victory against the ACLU in a censorware case) opposing the exemption.

Seth and Band operated largely as a single coherent unit during the proceedings. Seth did most of the talking, with Mr. Band occasionally translating Seth’s insightful, sometimes gleefully blunt arguments into legalese. Seth did a good thing by trouncing early on the semantics game of ‘filtering’ versus ‘censoring’ : “Filtering is when you block something you don’t want to see. Censorship is when someone blocks something they don’t want you to see.” This helped immensely, and the panel seemed very receptive of what he had to say : that the public has an inherent right to know what is being blocked from public schools and libraries, that censorware manufacturers are not receptive to complaints of malfunctioning software, and that a decryption of any given program’s list of censored sites does not constitute a compromise of the ability of that program to function….

The second exemption hearing of the day was on copy-restricted red book audio CDs:

This panel was much less lively – it was Thomas Leavens of Full Audio Corporation and Seth Greenstein of the Digital Media Association arguing for exemption against Steve Englund, the RIAA rep who looked for all the world like William H. Macy. The entire panel was approached very much from a webcasters’ view (Mr. Leavens and Mr. Greenstein both have tight ties to the commercial webcasting industry – Mr. Leavens spoke of his ‘partnerships’ with Microsoft and Clear Channel) and went for about twenty-five minutes before becoming a nearly indecipherable verbal quagmire, with the panel and the three speakers splitting and resplitting hairs over what congress meant by ‘limited’ and ‘reasonable’, where the line was drawn between access controls and copy controls, and how much power the Office of Copyright has to revise what congress wrote. The basic arguments of FAC/DMA were that the RIAA needs to give webcasters unprotected copies of CDs, as copy-protected CDs cannot be ripped into PCs as ephemeral copies. RIAA (Mr. Englund) maintained that webcasters need to write for permission every time they want an unprotected CD, or they can just audio-out the CD to a computer. He also said that if webcasters could play the CD in a regular CD player, they could be legally be said to have ‘access’ to it – never mind that it is completely impractical to jerry-rig a hardware CD player to a computer to webcast (see Jack Valenti’s “Just make a VHS copy of the DVD and and fair-use that !”). His opponents retorted that if they could not be given access to the red book audio of new releases (not WMA files or ‘second-session’ compressed CDs or whatever oddness the RIAA distributes to them now), then the 8.8% royalties they are paying are for nothing.

Quote from RIAA : “The copy-protection of these CDs is easy to circumvent and will probably remain easy to circumvent.”….

Perhaps “easy” to circumvent, but still illegal. Is the RIAA advocating illegal behavior by webcasters so they (the RIAA’s members) don’t have to provide non-copy-protected CD’s? How does this jibe with their rabid pursuit of file sharers? Is it up to the RIAA to decide which “illegal” activity is okay and which isn’t? This would seem to fly squarely in the face of equal protection under the law, or perhaps, equal law under the protection. You can’t say it’s okay to wind at one law you find inconvenient and not at another you like – application of the law isn’t supposed to be artibitrary.