Items tagged "Fair Use"


New Senate Telecom Bill–Fortified with Broadcast Flags!

June 13, 2006 Broadcast Flag , DRM , Fair Use , Piracy , Policy Blog

So, now that the House passed its version of the telecommunications bill, the focus now turns to the Senate, and more specifically, the Senate Committee on Commerce. The other day, the Chairman of the committee, Senator Stevens, dropped his version of telecom reform. It covers everything but the kitchen sink. It's currently being discussed at a hearing right now.

read more after the break…

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Cable Industry, Now Its Your Turn

May 26, 2006 Fair Use , Policy Blog

The cable industry is about to get a taste of what its like to be on the wrong side of the fair use unfriendly Hollywood. Several of the studios and their broadcaster arms are suing Cablevision, claiming that their video recording service, called "Network DVR," violates their copyrights.

Network DVR differs from a TiVo like service in that subscribers would retrieve shows not from a hard-drive in a set-top box, but from the cable system itself. Subscribers would choose the shows they want, and they would be recorded on a central computer.

The studios say it is ok for consumers to time shift their favorite programming, but that cable systems currently only have a license to simultaneously retransmit the programming they provide. If the cable companies want to store their programs, the studios say, they must either negotiate a separate license with the studios, or give them a portion of the revenues from the service. Needless to say, Cablevision disagrees, and believes that its service falls squarely within consumers' right to time shift, which was explicitly protected in the landmark Sony v. Universal Studios Supreme Court case, , otherwise known as the "Betamax" case.

I've spent a fair amount of time trying to convince the cable industry that it should reject tech mandates like the broadcast flag and join the fight to preserve fair use. I was successful in convincing them not to join in Hollywood's brief in our broadcast flag case,, but that decision was based on not wanting to concede that the FCC should have sweeping powers. To the extent that most cable companies are really broadband companies rather than content companies (the exception being Time Warner, which interestingly is not a party to the case), they have a big stake in ensuring that they are not forced to architect their networks in a way that will limit their subscribers' rights and anger them in the process.

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CATO Event on the Harms of the DMCA

April 26, 2006 Blog Posts , DRM , Fair Use , Policy Blog

Today, the CATO Institute held a half-day conference entitled "Copyright Controversies: Freedom, Property, Content Creation, and the DMCA," that over three panels, turned out to be a fairly good of the issues–from both sides of the argument.

You can learn about the Digital Millennium Copyright Act, or DMCA, here.

Rep. Lamar Smith, Chairman of the Intellectual Property Subcommittee of the House Judiciary Committee, started off the discussion talking about how his district is a good balance of innovators and creators. He thought that the cases involving garage door openers and printer cartridges were the exceptions to the rule which could be solved with an adjustment to tort reform.

Rep. Zoe Lofgren said that the DCMA has not been effective, because the content industry says that digital piracy persists and continues to ask for greater copyright protections. She has proposed her own bill, the BALANCE ACT and supports Rep. Rick Boucher's HR 1201 to allow for innovation and fair use under the DMCA.

David Levine presented a great economic analysis of copyright, who talked about how historically, you don't need copyright to produce incentives.

Gregory Lastowka discussed his paper entitled "Amateur-to-Amateur: The Rise of a New Creative Culture," which looked at the issue of copyright from an out-of-the-box point of view. He came at it from the viewpoint that the internet is a communications medium and that copyright dilutes the ability to communicate. On that same panel, Michael Masnick of questioned why folks like Patrick Ross looked the internet as a way to dilute copyrights. Ross and Masnick argued about whether or not Ross' organization, the Progress and Freedom Foundation, was promoting copyright industry ideals because of their funders.

The final panel was probably the most lively. Tim Lee of the Show-Me Institute, discussed his paper, which caused today's debate, entitled "Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act." Gary Shapiro of the Consumer Electronics Association, as always, did a great job exposing the practical pitfalls that the DMCA creates for innovators and creators. Those two contrasted with Solveig Singleton and Emery Simon who said that, although the DMCA was imperfect, that it's needed to allow the content industry (which includes software industry) to innovate and protect their digital content.

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CES update 2 — fair use and other topics

January 6, 2006 Blog Posts , Fair Use , Network Neutrality , Policy Blog

An all-Republican panel of legislators finally got to the heart of what's important here at CES. Of course, I mean fair use. What else is there, right? We couldn't find out where the Ds were.

Rep. Darrel Issa (R-Cal.), member of the House Judiciary Committee, called for Congress to enact legislation to specify what exactly fair use means. Issa said the Digital Millennium Copyright Act was flaws because it didn't make more clear the fair use concept, and created the misimpression that fair use had been taken away. The law, he said, created the odd situation in which he, personally, could use software to hack a program to make a legal copy of something, but that he couldn't use tools devised by others for the same purpose.

What's needed, Issa said, is an "acceptable, enforceable" level of fair use for today that is in line with the expectations of consumers. Congress should act on the issue "sooner rather than later" because of the speed with which consumer devices can interact and share material. "The genie is already out of the bottle with MP3s," he said. "We need to lock in something close to what the public will accept," Issa said, adding that both sides [tech and content] are losing every day as the public keeps advancing its idea of what constitutes fair use, which may not comport with what either industry had in mind.

Issa said that a fair use system could include allow "a little bit of copying" but not commercial transfers. He said levels would need to be set for fair use, but didn't offer a specific suggestion. Issa also said a software "flag" could be used to enforce the personal copying aspect of fair use.

House Telecommunications and Internet Subcommittee Chairman Fred Upton (R-Mich.), said that if the Judiciary panel got serious about a bill, his committee would take a look at it, but said also that it wasn't high on the food chain: "I don't know if the controversy can be resolved this legislative term." Among other items, the telecom rewrite will take precedence, that that will take place over the first half of the year.

The panel also tackled the issue of net neutrality, with Upton and others endorsing a market place solution. Rep. Steve Buyer (R-Ind.) in particular argued vigorously against new regulations for net neutrality or for other telecom issues, including subsidies for the DTV transition.

Rep. Charlie Bass (R-N.H.), was more protective of rural areas, noting that in some towns consumers don't have a choice of broadband services.

Other notes: Gary Shapiro's speech hasn't been posted to the Web yet. When it is, it will be here:

The lights were out in the theatre during the speech, and it may be my note-taking skills are a little rusty, so check out the transcript when it gets posted.

We caught up with Verizon Chmn. Ivan Seidenberg for a couple of minutes to ask about the Ed Whitacre controversy. Seidenberg's view was that companies like Google and Yahoo "make markets for us" by increasing demand for high-speed services. However, he still expressed concern over the fact that Verizon works on a subscription basis, while Google and others have an advertising base. "That's something we need to work out," he said, ending a brief but cordial conversation. Another Seidenberg quote — He started his presentation by noting that most people in the audience probably had at least one, and maybe more, cell phones or other devices with them, said: "Please turn them on." He likes to hear them working.

Having just recovered from seeing Tom Hanks, we were absolutely thrilled by the rumor that Tom Cruise will make an appearance on behalf of Google tomorrow. No word if true, or, if true, whether he will bring his own couch on which to jump.



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Rootkit and Fair Use

December 13, 2005 Blog Posts , Broadcast Flag , DRM , Fair Use , Policy Blog

Michael Hiltzik of the LA Times has written a great column (free registration required) that started off with the ongoing ridiculousness of rootkit, and develops his point to the climax:

Plainly, the media companies are engaged in an all-out attack on the principle of "fair use."

Here here!

We see it all over the place: copy protected CDs that you can't put on your iPod; copy protected downloaded music that you can't put on a competing player; excerpts can't be made of access controlled DVDs.

The one that PK has fought the hardest–government mandated DRM that would touch every device in your home even capable of playing digital video–the Broadcast Flag. At a recent hearing, when asked why Congress couldn't exempt broadcast news (for which most copying would clearly fall under fair use) and works in the public domain, the content companies had no response.

If they actually spoke their mind, their answer would be that these grand debates have zero to do with piracy. Instead, it's actually about control–not just over everything they conceive, but what consumers can do with it after legally obtaining it, and what technological innovators can do with it to make it more useful.

Thankfully, that's not how copyright works, and we work every day to ensure it.

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Recent Fair Uses

December 5, 2005 Blog Posts , Fair Use , Policy Blog

I had been wanting to remark on a specific fair use study(beware of PDF) earlier last week, but never got around to it. Thankfully, Tim Lee on has a to the point post on the Technology Liberation Front.

But while I'm on the fair use subject, I should point out a great post by Donna Wentworth on Corante. It covers a number of ongoing fair use quibbles.

One more: The Free Expression Policy Project at the Brennan Center for Justice at NYU Law School just put out their study entitled, "Will Fair Use Survive?". You can find the full PDF here. Of course, feel free to quote it, make limited copies or excerpts of it to criticize and discuss it, and make personal, non-commercial copies of it–it's your right!

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A More Functional TiVo Scares NBC?

November 29, 2005 Blog Posts , Fair Use , Policy Blog

In case you haven't heard, TiVo recently said that it would be making the content that its users record available to Apple iPods and Sony PSPs. Pretty cool! It's not exactly anything new–especially since it's been a basic feature of Windows Media Center, ReplayTV since their inception, and more recently Dishnetwork's "pocketdish" devices. Regardless, the ability to watch the content that you've otherwise legally obtained on a portable device is a welcome future upgrade.

So what's with NBC? In a recent Variety article, they said:

"TiVo appears to be acting unilaterally, disregarding established rights of content owners to participate in decisions regarding the distribution and exploitation of their content. This unilateral action creates the risk of legal conflict instead of contributing to the constructive exploitation of digital technology that can rapidly provide new and exciting experiences for the consumer."

Quite a reaction! Since when do copyright owners have the right to tell me when and where I watch the TV I've recorded? I don't think it's been since the Sony Betamax case that we've fought over this issue. Are we really calling personal copying to a portable device "distribution?" If so, doesn't the same go for copying CDs to iPods, or any of the other TV recording systems I referenced above?

Why not look at it as a marketing opportunity, as Warner Bros. reportedly did:

"In addition to focusing on the legal issues, it's also important to focus on the fact that consumers are saying this is the kind of thing they want. We're excited about the fact that people are buying portable devices and are looking for video content on them. It's potentially a huge market for us."

How refreshing! Considering what consumers want. Of course, this isn't the first we've heard of this kind of pro-consumer attitude in recent weeks.

As far as I know, NBC hasn't taken any action against TiVo, and it's possible that the above statement was just the rhetoric of an uninformed individual. Just the same, those statements don't help policy makers form better conclusions.

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So much done, So little time

November 29, 2005 Blog Posts , Broadcast Flag , Fair Use , Network Neutrality , Policy Blog

Well, there's been a brief hiatus on the Policy Blog, and that's because we've actually been pretty busy at PK. Here's a quick rundown of what we've been up to:

  • Testifying on the Broadcast Flag: Gigi's first hearing in November was on the broadcast flag, HD-radio protection, and closing the analog hole. Read more about the hearing here, our press release here, and Gigi's testimony here.

  • Telecom Rewrite process: I've told you about our Open Broadband white paper previously. We've been working with others to voice concern about issues like net neutrality in the rewrite of the '96 Telecommunications Act. There was a House Telecommunications Subcommittee hearing on Nov. 9, and this is what we had to say about the hearing and the latest staff draft.

  • DOJ Copyright Proposals: Seemingly out of the blue, the Department of Justice released its recommendations on how copyright law could be "improved" to aid their enforcement efforts. While PK believes in strong copyright enforcement, we disagree with the suggested changes by the DOJ. Here's what we had to say about it.

  • Testifying on Fair Use: Gigi's second hearing of November was on the fair use doctrine of copyright law. The hearing was held in the House Subcommittee on Commerce, Trade and Consumer Protection, of the Energy and Commerce Committee. Gigi's oral and written testimony are on our website, and you can view the webcast from the subcommittee's website.

  • Follow-up Letter: As a follow-up to the fair use hearing, Chairman Stearns asked us to provide him with list of examples of consumer uses that are prohibited by the DMCA. We sent him that letter on Nov. 21, providing examples from Gigi's testimony and some important others.

Whew, quite a month! Rest assured, new posts are coming!

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Public Knowledge’s President Reacts to Peer-to-Peer Self-Help Bill

July 25, 2002 Fair Use , News & Analysis , Press Release

While enforcing the Copyright Act and preventing copyright infringement are worthy goals, Representative Berman's Peer-to-Peer Self-Help bill goes too far. Rep. Berman's bill gives the content industry great latitude to engage in harmful behavior that could affect lawful consumer activities, as well as unlawful behavior.

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