PK President Gigi B. Sohn testified before the U.S. Senate Committee on the Judiciary on the subject of “The Analog Hole: Can Congress Protect Copyright and Promote Innovation?” on June 21, 2006.
Gigi’s written testimony is available here (pdf).
Committee member statements and the testimony of other witnesses is available from the committee’s website: http://judiciary.senate.gov/hearing.cfm?id=1956
A transcript of Gigi’s oral testimony follows:
Mr. Chairman, Ranking Member Leahy and members of the Committee, my name is Gigi Sohn. I am President of Public Knowledge, a nonprofit organization that seeks to protect the public’s rights in debates over copyright law and communications policy. Thank you for inviting me to testify today.
I would like to focus on the impact of efforts to close the analog hole on consumers. I brought a couple of props to help clarify the scope of this debate. Here’s a video iPod. It is one of the most advanced personal digital devices available, but it has an analog connector, here on the underside. With a $20 analog cable you can connect this to your television and watch your legally downloaded videos on your analog TV.
I also brought a DVD player, also equipped with analog connectors on the back. Those multicolored video and audio outputs allow you to watch your legally purchased DVDs on your television. You’ve probably seen similar outputs on the back of your VCR, your television, your digital video camera, your Tivo and your video game consoles. These analog outputs are the analog holes that the content industry wants you to close.
What would closing the analog hole mean for consumers? For one, it would restrict lawful uses of technology, like recording television shows onto a computer, or moving recorded content from one device to another over a home network. These uses may not be authorized by the content industry, but they are 100% legal. Second, closing the analog hole could make obsolete hundreds of millions of consumer devices. Devices that are purchased before an analog hole mandate goes into effect may not work with devices purchased after. There is no transition period and no backward compatibility. Third, to the extent that such a mandate results in costs to device manufacturers, they will inevitably be passed on to the consumer.
Fourth, closing the analog hole will restrict, if not eliminate, the making of fair use excerpts of DVDs or other digital media for a presentation or classroom use. This is because the Digital Millennium Copyright Act makes it illegal to circumvent digital access controls for any reason, even if that use would be lawful under fair use. The analog hole is an important legal and technical solution to this problem. Indeed, both the Copyright Office and the MPAA have said that the analog hole should be the only way for consumers to be able to engage in fair use of protected digital media. By now asking Congress to close the analog hole, the content industry is playing a shell game that consumers will lose.
The legislation introduced in the House would codify these consumer harms. It also suffers from several other problems: 1) the bill mandates an unproven and disputed technology, VEIL, which heretofore has only been used in Batman toys and games; 2) the bill adopts encoding rules would limit time shifting, space shifting and in some instances, the making of any personal copies, in violation of fair use principles; and 3) the bill puts the inexperienced and overworked Patent and Trademark Office in charge of the oversight of a vast number of consumer electronics and computer devices and sets up a bureaucratic morass that can’t help but slow innovation.
I note that Hollywood has offered no real evidence that analog to digital conversion is being used for indiscriminate redistribution of copyrighted works. Indeed, much of the testimony submitted to you today focuses on hard goods piracy and infringement resulting from the use of computers and digital networks. The way to fight these problems is not by removing an important means for consumers to lawfully use the digital media and technology they purchase. Instead, the content industry should use the many legal, technical and marketplace tools at their disposal, including: The Supreme Court’s Grokster decision, which allows content owners to sue manufacturers and distributors of content who actively encourage illegal activity. This directly addresses Mr. Cookson’s concern that some analog- to-digital device manufacturers encourage infringement. The Family Entertainment and Copyright Act, which makes it illegal to bring a camcorder into a theater or leak pre-release movies. Lawsuits against individuals who engage in wholesale infringement over P2P networks. Agreements between content companies and Internet service providers to crack down on piracy while protecting individual privacy. Digital rights management tools that are marketplace driven, not government mandated.
Of course, the best deterrents to widespread infringement are business models for online content delivery that are reasonably priced, easy to use and flexible. To Hollywood’s credit, it is starting to experiment with different business models. We believe that Congress should allow the market to work before it adopts a technology mandate that on balance will hurt consumers far more than it would help the industry.
I’d like to close with this thought. When Congress was considering the DMCA eight years ago, the content industry assured legislators that this would be the last law they would seek to limit consumers’ lawful uses of digital media. But in that time, we have seen proposed law after proposed law intended to further limit consumer rights and which impose a variety of innovation taxes on the technology sector. In this Congress alone, no fewer than five bills in both houses would tip the copyright balance even further towards the content industry. This is nothing more than a carefully planned, long-term assault on honest consumers, to make them pay multiple times for uses that the law still considers “fair.”
Members of the committee, legislation to close the analog hole would be profoundly anti-consumer and would have no effect on piracy. I urge you to reject technology mandates and thereby preserve the careful balance inherent in our copyright laws. Thank you.
