Policy Blog Entries by Bill Herman

In the first chunk of an interview with Copycense that will be published in several parts, copyright uber-expert William Patry argues, inter alia, the copyright term is too long.

Here’s the relevant text:

From a policy standpoint, I think the duration of copyright is way too long. Whether “life plus 50 [years]” was correct or not I think can only be answered by taking into account what we got internationally. There was never an argument that “life plus 50” was required to give adequate incentive; “life plus 50” had been the standard in the Berne Convention for some period of time, and the idea of shifting to that in the [Copyright Act of 1976] was … because it benefited us overseas. If I had the ability to write the copyright laws myself, I would probably make the term life of the author and that’s it. I think the [current] term is way too long from a policy standpoint.

While I would urge the reader to consider arguments on their own merits, Patry is a legendary copyright expert with very few peers.

The Copyright Office today granted 6 exemptions to 17 USC § 1201(a)(1), effective for the next three years, that allow end-users to circumvent technological protection measures in order to make noninfringing uses of certain works.

Two of the exemptions are particularly noteworthy. They are:

1. Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.

6. Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.

This represents a substantial shift in the Copyright Office’s interpretation of Section 1201. (More after the break.)

The US Copyright Office has delayed its ruling in the triennial rulemaking to determine exemptions to the DMCA’s ban on circumventing technological protection measures, instead extending the current set of exemptions for the near future.

The Copyright Office website provides no reason for the delay. All we know now is that the Register of Copyrights has not produced a set of recommended exemptions and that the delay is expected to last “no more than a few weeks” (pdf).

17 USC 1201(a)(1) prohibits the circumvention of a “technological measure that effectively controls access to a [copyrighted] work.” Except for a list of narrow exemptions, it is illegal to hack through such copyright-protecting technologies, popularly referred to as “digital rights management” or “DRM.”

Some of the exemptions are permantly encoded elsewhere in section 1201. The Copyright Office determines another set of temporary exemptions that last for three years. For more on this process, follow the first link or read this paper.

My response to Ed Felten’s policy recommendations (Felten suggests we wait and see before imposing network neutrality mandates), has garnered its own response. Tim Lee of TechLiberation has posted two responses (first) (second), the first of which becomes part of Felten’s sensible follow-up, and the second of which references this thoughtful post by EFF Chairman Brad Templeton.

The very short summary of the dispute goes like this: We network neutrality supporters are so scared of the perils of broadband discrimination that we are willing to accept the perils of imperfect regulation. Opponents are so scared of the perils of regulation that they are willing to accept the perils of discrimination, at least for now.

The other three guys are very intelligent people, one of whom has been dragged into this (reluctantly, I’m sure), and all of whom have thought long and hard about this. As in any decent debate, both sides have some merit.

First, consider the large degree to which we agree:

Ed Felten has just released a paper entitled “Nuts and Bolts of Network Neutrality” (pdf). It’s a reasonably solid introduction to the subject that should be read, especially for those who do not understand the technical issues. Prof. Felten is to be commended for his thoughtful input on this important matter.

In the conclusion, Felten argues that the best policy option is to continue the threat of regulation without actually regulating. He notes, “If it is possible to maintain the threat of regulation while leaving the issue unresolved, time will teach us more about what regulation, if any, is needed” (p. 10).

His paper has gotten a lot of play, especially from those who oppose regulation, so it is important to respond. Ed Felten knows more than most folks (myself included) about networking technologies, but I dare say that current political theory demonstrates that his policy option is quite unrealistic; the chance to act will expire too quickly, and the threat of regulation will have passed.

In this interview from today, Brooklyn-based telecom analyst Bruce Kushnick insists that big telecom has systematically failed to deliver on its promises to the public and to policymakers.

In the early and mid 1990’s, telecommunications companies promised to build networks that could allow them to compete with cable. We were all supposed to get high-speed fiber optic cables (light pipes) right to the house, and they were supposed to carry voice, data, and video. There would be tons of competition, and 86 million homes would get 45 Megabits per second of two-way data capacity.

Microsoft, accused of tricking users into installing spyware on their Win XP boxes in the name of fighting piracy, is now defending itself against a sizable legal and PR offensive.

The embattled program, Windows Genuine Advantage (WGA), logs on to the internet and connects to the Microsoft databases, without the user’s permission, in order to verify the authenticity and uniqueness of the Windows XP serial number.

If a customer’s serial number is flagged as inauthentic, she can no longer download any Windows XP updates except for security patches.

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.

Today, the Senate Judiciary Committee held a hearing considering the “problem” of the analog hole. Public Knowledge President Gigi Sohn was the last witness, and the 3 Senators in attendance seemed to react well to her message and the concerns of our allies in the tech sector.

First, let’s cover some technical and legal background. (Skip ahead if you just want the digs on the hearing. Also, here are Gigi’s oral and written (pdf) testimony.)

Congressmen including Lamar Smith (R-TX) and Howard Berman (D-CA) were among the Representatives who used a hearing yesterday as a chance to take rhetorical swipes at patent trolls.

The hearing, held by the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property, was called, “Patent Trolls: Fact or Fiction?”

A patent troll is a person or small company that traffics primarily or exclusively in the threat of patent litigation. The company will either register or purchase patents with no intention of developing products using the patented technologies or techniques. Rather, they will go seeking people whom they can credibly accuse of infringement. Trolls will seek licensing fees that exceed the market rate but fall short of the would-be defendant’s legal expenses (pdf). Failing that, they are willing and able to go to court.

The bill at issue is H.R. 2795, “The Patent Reform Act of 2005.”