Discussion November 2005

discussion@lists.fsfe.org

12 participants
12 discussions

German software licensing law
by MJ Ray 06 Dec '05

06 Dec '05

Can a software licence in the English language only be valid if it specifies that it is governed by German law? I've been told that the reverse isn't true: an English court would not normally consider a licensing agreement in German only that claimed to be under English law, without some special circumstances. I know even less about German law, so I'm hoping some kind soul on this list knows about this situation. Any pointers or references welcome. This seems to be a common situation with European software. There was also the QPL which was in English and specified Oslo courts, but I care less about that right now. There was a draft of something called the d-fsl published, which was in both English and German and was said to be seeking to satisfy all requirements of German law. Was being in German too part of that? Thanks for reading, -- MJ Ray (slef), K. Lynn, England, email see http://mjr.towers.org.uk/

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French Government Lobbied to Ban Free Software
by Jerome Dominguez 05 Dec '05

05 Dec '05

25 November 2005. FSF France press release. Friday November 18th, 2005, French Department of Culture. SNEP and SCPP tell Free Software authors: "You shall change your licenses." SACEM add: "You shall stop publishing free software," and warn they are ready "to sue free software authors who will keep on publishing source code" should the "VU/SACEM/BSA/FA Contents Department"[1] bill pass in the Parliament. URL: http://www.fsffrance.org/news/article2005-11-25.en.html -- Traduction philosophie GNU : http://wiki.april.org/TradGnu Lorsque la consigne est infame, la desobeissance est un devoir. http://www.cafeine.org/blog

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French Government Lobbied to Ban Free Software
by Jerome Dominguez 02 Dec '05

02 Dec '05

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Document about Free Software/Open Source
by C. Grobmeier 01 Dec '05

01 Dec '05

Hi all, as a fan of fs/os i want to see more acceptance for this in my company. I have figured out, that even programmers in my company have lack of knowledge about FS/OS. To change this, i would like to collect information and write a document about this. Well, i searched amazon and didn't find any book. Google brought billions of hits. i would like to ask if somebody would like to share his/her link collection with me or would like to discuss what's a must have in such a document. In my first ideas i though about this topics: - what means free software and open source? - what are licenses and which are wellknown (GPL, LGPL, Apache2, BSD) - how big development-groups work and can survive (apache and gnu) - where to find free software and seperate the good from the bad (is this project dying or not in nearest future? can i use it anyway) - how to get involved I know there is a lot information on the net (sometimes i think i read it all ;-)) but i missed a "book". I would like to try to communicate with OS-Developers and write about their experiences with open source. why do they do such things? what's the benefit? Let me know what you think about such an idea. If you know similar papers which are better than i could do :-) let me know. If you have another ideas- tell me. So, keep on hacking & cheers, Chris.

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UN's document is a SCANDALOUS SHAM!
by Rui Miguel Silva Seabra 25 Nov '05

25 Nov '05

Not because they omit friendliness towards Free Software, but because they are paying explicit lip service to established interested against the citizens of the world. My quick view over the document expressed in here: http://slashdot.org/comments.pl?sid=169359&mode=thread&cid=14115080 Also a reply I did to myself after I found out how they love DRM: http://slashdot.org/comments.pl?sid=169359&mode=thread&cid=14115109 Rui

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Irish Times Article Text?
by Seth Johnson 25 Nov '05

25 Nov '05

Hello, I'd like to get the text to this article at the Irish Times, on software patents: http://www.ireland.com/newspaper/finance/2005/1125/30882948BWKARLIN.html Bugmenot.com doesn't have any logins for it. Can somebody send the text to me? Seth -- RIAA is the RISK! Our NET is P2P! http://www.nyfairuse.org/action/ftc DRM is Theft! We are the Stakeholders! New Yorkers for Fair Use http://www.nyfairuse.org [CC] Counter-copyright: http://realmeasures.dyndns.org/cc I reserve no rights restricting copying, modification or distribution of this incidentally recorded communication. Original authorship should be attributed reasonably, but only so far as such an expectation might hold for usual practice in ordinary social discourse to which one holds no claim of exclusive rights.

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[heise.de] Microsoft, the "Vienna Conclusions, " and the UN World Summit
by Georg C. F. Greve 25 Nov '05

25 Nov '05

[ english translation of http://www.heise.de/newsticker/meldung/66530 -- now online at http://www.heise.de/english/newsticker/news/66619 ] Microsoft, the "Vienna Conclusions," and the UN World Summit The Vienna Conclusions drawn up for the UN's World Summit on the Information Society WSIS) were presented in an edited version in Tunis: Digital Rights Management was inserted where "free software" used to be. It turned out that these changes were made at the request of Thomas Lutz, a member of the management board at Microsoft Austria, and ÖVP representative Carina Felzmann, who also heads a PR and lobbying firm. The Chancellor of Austria published the text presented in Tunis. His office has yet to react to a query in this matter that heise online placed last Sunday. Under the title ICT + Creativity, Austrian Chancellor Wolfgang Schüssel (ÖVP) sent out invitations last June to a top-notch international conference for the WSIS. Microsoft was one of its sponsors. In various panels on various topics, experts held discussions, with the results being protocolled in texts mutually approved. These texts were collectively published as the Vienna Conclusions. One of the panels was called Digital Rights / Creative Commons. Nii Narku Quaynor, then-CEO of Network Computer Systems Limited of Ghana and a former African representative at ICANN, chaired the panel. Ralf Bendrath, political scientist at the University of Bremen and a monitor of the WSIS process for the Heinrich Böll Foundation, reported on the panel. Other participants included Georg C.F. Greve of the Free Software Foundation of Europe (FSFE), Richard Owens of the World Intellectual Property Organization (WIPO), Georg Pleger of Creative Commons Austria, and Peter Rantasa of Music Information Center Austria (mica). Bendrath and Greve were shocked when they saw the brochures distributed in Tunis (PDF file) (allegedly) containing the Vienna Conclusions. Instead of the original text from "their" panel, they read a version that differed in several substantial respects. To begin with, there was no talk anywhere of the "success of free software." In addition, the meaning of the section that discussed the revenue shift from content and digital works to services based on them had also been changed. The statement that software should be seen as the cultural technology of digital society was watered down to "the practical and simple use of software." Likewise, the following two passages popped up out of nowhere: "Commercial products bring innovation to the mass of consumers all over the world"; and "To ensure ongoing innovation, Digital Rights Management (DRM) development and deployment must remain voluntary and market-driven." At first glance, this might sound consumer-friendly, but actually it is a jab against the EU's attempts to regulate DRM. "DRM has nothing to do with innovation. The Sony rootkit also shows that there is nothing voluntary about DRM," argues Greve. "In Tunis, we tried to talk with the Austrians (about the editing of the text). But they were too busy celebrating the 'World Summit Award' and its funding with the sponsors." When the television show ORF futureZone reported, "media professor" Dr. Peter Aurelius Bruck, "Editor-in-Chief" of the brochure that the Austrian Chancellor's Office published, started taking part in the online forum. While Bruck did not deny that changes were made, he did accuse the journalists at ORF of "misleading the public." After the conference he directed, he launched a public blog so that all of the texts could be discussed further. But Greve and Bendrath claimed that no one who took part in the panel was informed of this blog. Indeed, the blog does contain three postings on the content of the DNA Conclusions, two of which concern the Digital Rights / Creative Commons panel. On September 27, three days before the blog was closed as announced, the entry "Comments from Microsoft Corporation" appeared, signed by "Thomas Lutz, Manager Public Affairs Mitglied der Geschäftsleitung Microsoft Österreich GmbH". He proposed that all of the passages that spoke of the success of free software or the revenue shift from content and digital works toward services be deleted altogether. Microsoft felt that they should not be kept because the goal of free software is to make it impossible for anyone to earn money from software. "This is so obviously stupid and nonsensical that it seems pointless to comment on it", Greve comments in his own blog: "Just another monopolist trying to uphold their monopoly by preventing freedom of markets ? which is what Free Software really aims at." The changes that Microsoft proposed were taken out without the members of the panel even being consulted. Further down, Microsoft successfully has the sentence concerning "innovation through commercial products" added to the text. On October 5, a few days after Bruck had officially closed his blog, ÖVP parliamentarian Carina Felzmann published an entry in her capacity as head of the PR and lobbying firm CoxOrange and as Chairwoman of the Association creativ wirtschaft austria, which also includes IFPI, the Association of the Austrian Music Industry. Her post contains the sentence about DRM. Upon returning from Tunis, Greve reported that, "The panel is now discussing internally whether we will make a joint statement or take any other steps." "I feel that this is the best solution because the Conclusions were a collaborative effort." And while members of the panel discussed among themselves how to proceed, heise online is still waiting for the office of the Austrian Chancellor to respond to its query. (Daniel AJ Sokolov) (Craig Morris) / (jk/c't)

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FSF Europe Newsletter
by Free Software Foundation Europe 07 Nov '05

07 Nov '05

1. Fellowship portal migrated to eZ publish 2. Joint Statement of FSFE and FSF Latin America to WIPO GA 3. WSIS workshop on internet governance and human rights 4. Workshop about Free Software in Austrian schools 5. Internet Hungary 2005 6. Valtellinux in Caiolo (Italy) 7. Internetdagarna in Stockholm (Sweden) 8. FSFE's political message in Ireland 9. Georg Greve in Brazil 10. Real Networks leaves antitrust EU case 11. Microsoft's new "shared source" licenses 1. Fellowship portal migrated to eZ publish After the Fellowship portal has been online with basic functionality for several months, it was becoming clear that the FSFE does not have enough manpower available to stabilize and extend it further as planned. However, eZ systems generously offered the migration of the portal to eZ publish and its maintenance as a contribution to the Free Software community. Now, after the migration is complete, the portal is already faster and more functional, even though it is still under development. https://www.fsfe.org/ 2. Joint Statement of FSFE and FSF Latin America to WIPO GA The Free Software Foundation Europe and its sister organisation, the Free Software Foundation Latin America, issued a statement towards the 2005 WIPO general assemblies in which they strongly criticise current plans about the Broadcasting Treaty. The Broadcasting Treaty would create another layer of monopolisation on material that is transmitted in various forms, including the Internet: broadcasting companies would get a prohibitive privilege lasting for 50 years on all broadcasted images and sounds without any gain by society. In the same statement, the Free Software Foundations in Europe and Latin America emphasise that to promote creativity, WIPO should seek to support new and alternative means of fostering creativity in the interest of humankind, not add more layers of monopolisation. http://www.fsfeurope.org/projects/wipo/statement-20050930.en.html 3. WSIS workshop on internet governance and human rights Jonas Öberg participated in the WSIS workshop on internet governance and human rights at Uppsala University in Sweden. The workshop was focused on the human rights issues in relation to the WGIG (UN Working Group for Internet Governance). Besides taking part in the discussions, Jonas also managed to establish some interesting contacts. 4. Workshop about Free Software in Austrian schools The Danube University Krems in Austria organised a workshop about Free Software in Austrian schools. Karin Kosina opened the workshop with a general introduction to Free Software and its relevance for the educational sector. The general consensus after the meeting was that while there are many strong local groups, there should be more focus on working together and coordinating the activities in the future. The initiators are planning to organise a follow-up event. 5. Internet Hungary 2005 Stefano Maffulli held a speech at Internet Hungary 2005, Hungary's biggest professional conference for internet users. The focus of the conference was on possible business activities for communication and media industry. Stefano's speech was about software freedom and business freedom. 6. Valtellinux in Caiolo (Italy) FSFE participated to the annual meeting of Free Software users in the beautiful valley Valtellina, in the Italian Alps. Stefano Maffulli presented the Fellowship, and Alessandro Rubini gave a speech about embedded GNU/Linux. 7. Internetdagarna in Stockholm (Sweden) The Swedish Internet infrastructure foundation organised the conference "Internetdagarna 2005" in Stockholm, Sweden. Several issues were discussed during the conference, including a discussion on Sweden's IT policy and the dangers of a digital divide. Jonas Öberg participated throughout the conference. 8. FSFE's political message in Ireland FSFE's Brussels Representative, Ciaran O'Riordan, gave the opening talk at this year's annual general meeting of the Irish Linux User Group. O'Riordan spoke of the recent software patents legislation, the new IPRED2 legislation, the unseen work of FSFE, and how to support FSFE and national Free Software organisations. 9. Georg Greve in Brazil During a trip that brought him to Sao Paulo, Campinas and Manaus, Georg Greve participated in the III Encontro de Software Livre do Amazonas (ESLAM) in the north of Brazil: Giving two speeches on Free Software and the dangers to freedom in software he greatly enjoyed the opportunity to participate in this exceptional conference and meet many old and new friends in the local Free Software community. 10. Real Networks leaves antitrust EU case As part of their USD 761 Million deal with Microsoft, Real Networks has now left the antitrust case against Microsoft. After the record fine of EUR 500 Million, Microsoft has now spent roughly six times that amount to solicit support away from the European Commission: This brings the number of parties in support of the EC down to two, including the Free Software Foundation Europe. This case increasingly turns into an impressive demonstration why it is so important that FSFE is independent and its positions are incorruptible. http://mail.fsfeurope.org/pipermail/press-release/2005q4/000118.html 11. Microsoft's new "shared source" licenses For some time now Microsoft has tried to play on the common confusion around "Open Source" with its "Shared Source" program. Now they released five simplified licenses, two of which are being thoroughly screened by the FSF Licensing Committee: they might turn out to be Free Software compliant, one of them mildly Copyleft, even. Given previous Microsoft statements about the Copyleft approach and in particular the GNU GPL as "viral", "cancerous" and "communist", seeing Microsoft now publish licenses applying the very same principles came as quite a surprise. Of course there are two large caveats before starting to celebrate Microsoft as a Free Software company: Publishing a license does not mean much before significant software is released under that license, and it would have been preferable to use directly the most successful Copyleft licenses, the GNU General Public License (GPL) and Lesser General Public License (LGPL) for its "Shared Source" program. http://mail.fsfeurope.org/pipermail/press-release/2005q4/000120.html You can find a list of all FSF Europe newsletters on http://www.fsfeurope.org/news/newsletter.en.html

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Fighting Software Patents: European of the Year
by Seth Johnson 06 Nov '05

06 Nov '05

(Non-Europeans may vote; the poll closes November 11. -- Seth) > http://www.theinquirer.net/?article=27473 Fighting software patents net.wars By Wendy M. Grossman: Saturday 05 November 2005, 07:31 THERE'S only a week left voting closes November 11 to vote for the EV50 top Europeans of the Year (http://www.ev50.com/). This year, as The INQ reported in late September (http://www.theinquirer.net/?article=26408), the nominees for Campaigner of the Year include Florian Mueller, the driving force behind NoSoftwarePatents (http://www.nosoftwarepatents.com/). Actually, though, there are a couple of other EV50 nominees you can vote for if you want to send a message opposing software patents. Michel Rocard (nominated for MEP of the year) was the European Parliament's rapporteur on this topic, and José Luis Rodriguez Zapatero (nominated for Statesman of the Year) represented the only government to vote against the software patents proposal in the European Council. Finally, Dalia Grybauskaite, up for Commissioner of the Year, is the only one in her category that NoSoftwarePatents describes as "a safe choice". NoSoftwarePatents does have this handy voting guide (http://www.nosoftwarepatents.com/en/m/ev50/vote.html), though most of its other recommendations are, it says, randomly generated. (You cannot, apparently, vote in only the categories that interest you; for your vote to count you have to vote in all of them; seems sort of silly to me, since it guarantees that anyone who's only interested in one subject will choose people they know nothing about in all the other categories.) You vote separately for European of the Year, which is chosen from all 50 nominees. That an anti-software patents campaigner should be nominated for an award won by the late Pope is a pretty extraordinary thing. In the US, when software patents were first mooted, you saw programmers testifying sedately in front of government officials in locations around the country; in Europe we're seeing people protesting in the streets. The software patents issue is an important fork in the road for US-Europe trade relations. It's not entirely surprising that it should be more controversial in Europe, given that most of the biggest software companies are American. If you regard software patents as creating artificial monopolies, then the logic is perfectly clear: allowing software patents will transfer an increasing amount of economic control to entities with no allegiance to Europe at all. Of course, it's arguable that they haven't got all that much allegiance to the US either; multinational megacorporations tend to behave as though they were nations in their own right. Although unlike nation states, they do not have to worry about taking care of the unemployed. It seems entirely possible that we are on the verge of a split in the computer industry that will mirror the existing situation in the television industry. In the US, television is dominated by commercial interests; what public service broadcasters there are must fight for every dollar they get in funding. In Europe, while public broadcasters do not necessarily dominate, they are far more substantial forces. In the UK in particular, even after a decade or two of changes and cutbacks the BBC casts a long shadow over all of broadcasting. If you think of open source software as computing's equivalent of public service broadcasting, it's easy to think that Europe will embrace open source as both the City of Munich (14,000 desktops) (http://news.zdnet.co.uk/software/linuxunix/0,39020390,39216394,00.htm) and the NHS (800,000 desktops) (http://hardware.silicon.com/desktops/0,39024645,39117233,00.htm) are trying to do while most of the US remains wedded to commercial software, whether that's licensed, as now, or provided as an online service as per Microsoft's Live.com announcement this week (http://www.forbes.com/newsletter/2005/11/04/microsoft-google-yahoo-mr_1104b…). People sometimes suggest that open source is at a disadvantage because users don't have an easy path to technical support; in the litigious US, the bigger deterrent to its adoption may be uncertainty over whom to sue. Whatever happens in Europe, software patents, which will almost certainly continue to be granted in the US despite calls to reform the US patent system, could provide some interesting weapons for a trade war. But that's all somewhat distant speculation. At the moment, things are looking promising for the opponents of software patents, and although Florian Mueller is by no means the only or longest-serving of these, he is the most visible, and the hope is clearly that securing him and the other nominees highly publicized awards will send a distinct message to the EU. It will not be enough by itself. If there's one thing we know after ten years of public policy surrounding the Internet, it's that even if software patents fail now in Europe the issue will not go away. There are many avenues software patent proponents can take. They can continue to lobby for the passage of the Computer-Implemented Inventions Directive, being squabbled over in the Council and in the European Parliament. They can lobby the national governments of EU member states to get the dissenters to change their policies. And, in a bout of policy laundering, they can push for cross-recognition, so that the US automatically respects EU-issued patents and, more importantly, vice-versa. The people who want software patents will continue trying for them via all these avenues, and any others they can find. Companies like IBM, Microsoft, and Siemens are not going to suddenly abandon trying to replicate the strategy that has proved lucrative for them in the US. This battle has a long way to go yet. µ Wendy M. Grossmans Web site has an extensive archive of her books, articles, and music (http://www.pelicancrossing.net/), and an archive of all the earlier columns in this series (http://www.pelicancrossing.net/nwcols.htm). She has an intermittent blog (http://www.livejournal.com/~wendyg). Readers are welcome to post there or to send email, but please turn off HTML.

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PK Testimony on Broadcast Flag
by Seth Johnson 04 Nov '05

04 Nov '05

> http://www.publicknowledge.org/news/testimony/20051103-gbsohn-testimony > http://static.publicknowledge.org/pdf/20051103-gbsohn-testimony.pdf Statement of Gigi B. Sohn, President Public Knowledge Before the House Judiciary Committee Subcommittee on Courts, the Internet and Intellectual Property Oversight Hearing on "Content Protection in the Digital Age: The Broadcast Flag, High-Definition Radio, and the Analog Hole" Washington, DC November 3, 2005 Chairman Smith, Ranking Member Berman and other members of the Subcommittee, my name is Gigi B. Sohn. I am the President of Public Knowledge, a nonprofit public interest organization that addresses the public's stake in the convergence of communications policy and intellectual property law. I want to thank the Subcommittee for inviting me to testify on content protection in the digital age, and to comment on what I hope to be the first of many discussions on three draft pieces of legislation before the subcommittee, the Broadcast Flag Authorization Act (BFAA), the HD Radio Content Protection Act (HDRCPA) and the Analog Content Protection Act (ACPA).1 Introduction and Summary As some of you know, I served as counsel to the nine public interest and library groups that successfully challenged the Federal Communications Commissions (FCC) broadcast flag rules in the United States Court of Appeals for the District of Columbia Circuit. My organization financed and coordinated the case, which is titled American Library Association v. FCC, 406 F.3d 689 (D.C. Cir. 2005). I respectfully request that a copy of the courts decision and a copy of petitioners opening brief in the case be placed into the record of this hearing. For Public Knowledge, its members and its public interest allies, the D.C. Circuits decision vacating the broadcast flag rules is about much more than the ability of citizens to make non-infringing uses of copyrighted material that they receive over free over-the-air broadcast television. It is about limiting the power of a government agency that, in the courts own words, has never exercised such "sweeping" power over the design of a broad range of consumer electronics and computer devices. For the past seventy years, Congress has never given the FCC such unbounded authority to control technological design. This has fostered a robust market place for electronic devices that has in turn made this country the leader in their development and manufacture. The broadcast flag scheme would put a government agency in the position of deciding what software and hardware technologies will come to market and which will fail. I urge this subcommittee to think very long and hard before granting the FCC broad power to engage in this kind of industrial policy. Ask yourselves, is it good policy to turn the Federal Communications Commission into the Federal Computer Commission or the Federal Copyright Commission? I am confident that with the opportunity for public input and serious deliberation and an opportunity for public input, you will decide that the marketplace, not the government, is the best arbiter of what technologies succeed or fail, and that Congress, not the FCC, is the correct arbiter of the proper balance between content protection and consumer rights. I similarly urge this subcommittee to weigh the costs to consumers of proposals to mandate content protection for digital satellite and broadcast radio and to mandate content protection to close the analog hole. Efforts to limit what consumers can record over digital radio technologies suffer from many of the same maladies as the TV broadcast flag -- specifically government control over technology design. In addition, the proposed radio content protection legislation permits the FCC extinguishes the long-protected consumer right, guaranteed by the Audio Home Recording Act, to record transmissions for personal use. Furthermore, because the draft bill will impose limits on a new technology -- so called HD Radio that, unlike digital television, consumers need not adopt, those limits may well kill this fledgling technology. Why would a consumer buy an expensive new digital broadcast radio receiver when it would have less functionality than the current analog receiver? The broad, sweeping draft legislation to close the analog hole suffers from the same problem; it puts the government in the role of making industrial policy, and will severely limit consumers ability to make lawful uses of copyrighted content. Like the broadcast flag, the legislation mandates a one-size-fits-all technology that has not been the subject of public or even inter-industry scrutiny. The prohibitions in the legislation would require redesign of a whole range of currently legal consumer devices, including DVD recorders, personal video recorders and camcorders with video inputs. Importantly, the existence of the analog hole has been touted as a "safety valve" for making fair use of digital media products where circumventing the technological locks has been rendered illegal by the Digital Millennium Copyright Act. Should Congress close that hole without amending the DMCA to protect fair use, consumers' rights to access digital copyrighted works will be eroded even further. There are better alternatives for protecting digital content than the heavy-handed technology mandates proposed here today. Those alternatives are a multi-pronged approach of consumer education, enforcement of copyright laws and use of technological tools developed in the marketplace, not mandated by government. The recent Grokster decision and the passage of the Family Entertainment and Copyright Act, which you spearheaded, Mr. Chairman, are just two of several new tools that the content industry has at its disposal to protect its content. Any Legislation to Reinstate the Broadcast Flag or Impose Radio Copy Protection Should be Considered in Regular Order As a preliminary matter, I would like to address an important procedural issue. If this subcommittee and the Congress ultimately decide to legislate with regard to the broadcast flag and digital radio copy protection, it should do so in regular order, and not as part of a budget resolution or appropriations bill. These matters are not germane to the budget and appropriations processes. Indeed, they are far too important and controversial to be legislated on a spending bill. If Congress ultimately decides that it must try and legislate broadcast flag and radio content protection mandates, it should do so only after considerable debate and public input. There is considerable evidence the public is greatly concerned with the governments efforts to mandate digital television and radio content protection for digital devices. Over 5000 individual consumer comments were filed in opposition to the flag at the FCC -- where so many consumer comments are rare -- and tens of thousands of citizens have contacted their Congressional representatives over the past 6 months (since the D.C. Circuits decision) urging that the TV flag not be reinstated. Clearly, this is an issue that deserves a full and fair hearing, and not to be simply attached to a spending bill.2 An FCC-imposed Broadcast Flag Scheme and/or Radio Content Protection Scheme Will Transform the Federal Communications Commission into the Federal Copyright Commission Despite the FCCs protestations to the contrary, the broadcast flag scheme and any radio copy protection scheme will necessarily involve the agency in shaping copyright law and the rights of content owners and consumers there under. Making copyright law and policy is not the FCCs job. It is Congress job. Petitioners brief in ALA v. FCC, at 43-50, lays out this argument in great detail. While it is true that the TV broadcast flag scheme does not completely bar a consumer from making a copy of her favorite TV show, it does prevent consumers from engaging in other lawful activities under copyright law. For example, as the D.C. Circuit noted in ALA v. FCC, the broadcast flag would limit the ability of libraries and other educators to use broadcast clips for distance learning via the Internet that is permitted pursuant to the TEACH Act, Pub. L. No. 107-273, 116 Stat. 1758, Title III, Subtitle C, §13301, amending 17 U.S.C. §§ 110, 112 & 882 (2002). See ALA v. FCC, 406 F.2d at 697. This and other examples highlight that while proponents of the flag may justify it as prohibiting only "indiscriminate" redistribution of content over the Internet, it actually prohibits any and all distribution, no matter how limited or legal. For example, if a member of this subcommittee wants to email a snippet of his appearance on the national TV news to his home office, the broadcast flag scheme would prohibit him from doing so. Video bloggers would similarly be unable to post broadcast TV clips on their blogs. Imagine how much different the debate around broadcast decency would have been had bloggers and others not been able to post a clip of the now-infamous Janet Jackson Superbowl halftime performance? The fact that the broadcast flag will limit lawful uses of copyrighted content was detailed in the Congressional Research Service Report entitled Copy Protection of Digital Television: The Broadcast Flag (May 11, 2005). CRS concluded there that While the broadcast flag is intended to "prevent the indiscriminate redistribution of [digital broadcast] content over the Internet or through similar means," the goal of the flag was not to impede a consumers ability to copy or use content lawfully in the home, nor was the policy intended to "foreclose use of the Internet to send digital broadcast content where it can be adequately protected from indiscriminate redistribution." However, current technological limitations have the potential to hinder some activities which might normally be considered "fair use" under existing copyright law. For example, a consumer who wished to record a program to watch at a later time, or at a different location (time-shifting, and space-shifting, respectively), might be prevented when otherwise approved technologies do not allow for such activities, or do not integrate well with one another, or with older, "legacy" devices. In addition, future fair or reasonable uses may be precluded by these limitations. For example, a student would be unable to email herself a copy of a project with digital video content because no current secure system exists for email transmission. CRS Report at 5.3 Thus, it strains credulity to say, as the FCC has, that the broadcast flag scheme does not put the agency in the position of determining copyright owners and consumers rights under copyright law. It is Congress duty, not the FCCs, to find the proper balance of those rights. The regulatory scheme proposed under the HDRCPA similarly, and perhaps even more directly, places the FCC in the position of determining consumers rights under copyright law. Section 101(a) of the draft bill gives the FCC the authority to control the unauthorized copying and redistribution of digital audio content by or over digital reception devices, related equipment, and digital networks, including regulations governing permissible copying and redistribution of such audio content. Under this proposal, the FCC is placed in charge both of 1) determining the extent to which unauthorized copying (which is legal is some circumstances) of digital broadcast and satellite radio content is permitted; and 2) determining what kind of copying and redistribution of audio content is permissible. If this language is not giving the FCC power to set copyright policy, then it is hard to imagine what language would do so. The Broadcast Flag and Radio Content Protection Schemes Would Give the FCC Unprecedented Control over a Wide Variety of Consumer Electronics and Computer Devices The BFAA has been referred to by some as "narrow," because it purports to do nothing more than reinstate the FCC rule vacated by the D.C. Circuit in ALA v. FCC. However, for the reasons discussed below, the FCC rule is anything but narrow. As the D.C. Circuit recognized in ALA v. FCC, the broadcast flag gave the agency unprecedented "sweeping" authority over consumer electronics and computer devices. In a nutshell, it puts the FCC in the position of deciding the ultimate fate of every single device that can demodulate a television signal. Thus, not only must television sets be pre-approved by the FCC, the agency must also pre-approve computer software, digital video recorders, cellphones, game consoles and even iPods if they can receive a digital television signal. Thus, the broadcast flag scheme places the FCC in the position of dictating the marketplace for all kinds of electronics. The agency has neither the resources nor the expertise to engage in this kind of determination. This type of government oversight of technology design will slow the rollout of new technologies and seriously compromise US companies competitiveness in the electronics marketplace. Some would argue that the initial certification process worked because all thirteen technologies submitted to the FCC were approved. However, that is a very superficial view of that process. First, it is widely known that several manufacturers removed legal and consumer-friendly features of their devices before submitting them to the FCC, largely at the behest of the movie studios. Second, the changing nature of the FCC and its commissioners is likely to make for widely varying results. Given the fervor of then- Commissioner Martins dissent to the Commissions approval of TiVo-To-Go, it is unlikely that such technology would be certified today under Chairman Martins FCC.4 The HDRCPA would similarly place the FCC in the position of mandating the design of new technologies. The plain language of the draft bill gives the FCC the authority to adopt regulations governing all "digital audio receiving devices." In the case of so-called High Definition (or HD) Radio5 this could have the unintended consequence of destroying this new technology at birth. Digital broadcast radio benefits consumers through improved sound quality (particularly for AM radio) and the ability for radio broadcasters to provide additional program streams and metadata. Unlike digital television, however, consumers need not purchase digital broadcast receivers to continue receiving free over the air broadcast radio. Certainly, if digital radio receivers have less functionality than current analog radio receivers, consumers will reject them and the market for HD radio will die. Moreover, because the HDRCPA also applies to digital satellite radio, it has the potential to cripple this increasingly popular, but still nascent, technology. Legislation to Close the Analog Hole is Premature, Unnecessary and Would Further Tip the Copyright Balance Against Consumers The Analog Content Protection Act is a detailed and extremely complicated technology mandate that deserves further consideration by my organization. Preliminarily, I would note that this is the first time in the recent discussion over digital content protection that CGMS-A + VEIL technology have been proposed. While the CGMS-A + VEIL technology was discussed at the Analog Hole Reconversion Discussion Group, it was quickly dismissed as not worthy of further consideration. Thus, unlike the broadcast flag, this technology has not been fully vetted by industry and public interest groups. Accordingly, we are quite surprised that CGMS-A + VEIL is being presented today as a fully formed, mature proposal to Congress. If Congress feels it must do something about the analog hole, it should refer the technology back to industry and public interest groups so CGMS-A+VEIL can be thoroughly analyzed for its impact on consumers and the cost to technology companies. In the complete absence of any such review, the one-sided imposition of such a detailed technology mandated would be unprecedented. Based on a preliminary analysis of the ACPA, I would like to make the following brief substantive points: * The ACPA would impose an inflexible, one size fits all technology mandate that is more intrusive than the broadcast flag: The ACPA mandates that each and every device with an analog connection obey not one, but two copy protection schemes. Thus, while the broadcast flag would put the FCC in charge of design control just for technologies that demodulate a broadcast signal, the ACPA would mandate design for every device with an analog connector, including printers, cellphones, camcorders, etc. Like the broadcast flag, it sets in stone a copy protection technology for technologies that are always changing. * The ACPA would impose a detailed set of encoding rules that would restrict certain lawful uses of content. The proposals tiered levels of restriction based on the type of programming (e.g., pay-per-view, video on demand) limit lawful uses in a manner that ignores the four fair use factors of 17 U.S.C. §107. Thus, the draft legislation upsets the balance established in copyright law between the needs of copyright holders and the rights of the public by placing far too much control over lawful uses in the hands of the content producers. * Would eliminate the DMCAs safety valve. One of the common justifications for limitations on fair use imposed by the anti-circumvention provisions of the DMCA is that the analog hole is available for individuals who, for example want to make a snippet of a DVD using a video camera held up to the TV screen.6 The ACPA would eliminate that safety valve. * The exception for legacy devices renders the ACPA ineffective. The ACPA exempts from its grasp the millions of legacy devices with analog connectors. It is unlikely that any action to try to close the analog hole will be effective. There are millions of video recording devices in homes that will operate for years and not be covered by this act. At the same time, the ACPA will discourage sales of new products because consumers will realize that the newer technologies will have less functionality than older technologies. * Must be considered in the context of broadcast flag legislation. Without broadcast flag legislation, the ACPA would be an ill-considered technology mandate that will increase costs and limit consumer rights; together with a broadcast flag mandate, the ACPA would allow nearly complete control over what consumers may do with content they have purchased or otherwise received legally. Copyright Law and Marketplace Initiatives are Better Vehicles for Finding the Proper Balance Between Content Protection and Consumer Rights than are Government-imposed Technological Mandates I am often asked the following question: if Public Knowledge opposes the broadcast flag, radio content protection and closing the analog hole, what are better alternatives to protect digital television and radio content from infringing uses? The best approach to protecting rights holders' interests is a multi-pronged approach: by better educating the public, using the legal tools that the content industry already has at its disposal, and the technological tools that are being developed and tested in the marketplace every day. In the past year alone, the content industry has used and won several important new tools to protect content, including: * The Supreme Courts decision in MGM v. Grokster and its aftermath. The Supreme Court gave content owners a powerful tool against infringement when it held that manufacturers and distributors of technologies that are used to infringe could be held liable for that infringement if they actively encourage illegal activity. The result has been that a number of commercial P2P distributors have gone out of business, moved out of the U.S., or sold their assets to copyright holders. * Lawsuits against mass infringers using P2P networks. Both the RIAA and the MPAA continue to sue individuals who are engaged in massive infringement over peer-to-peer (P2P) networks. By their own admission, these lawsuits have had both a deterrent and educative effect. * Passage of the Family Entertainment and Copyright Act. The FECA gave copyright holders a new cause of action to help limit leaks of pre-release works and made explicit the illegality of bringing a camcorder into a movie theatre. It also provided for the appointment of an intellectual property "czar" to better enforce copyright laws. * Agreements by ISPs to pass on warning notices. It is apparent that the war between Internet Service Providers and content companies has begun to cool. Last month, Verizon and Disney entered into an agreement by which Verizon will warn alleged copyright infringers using its networks, but will not give up their personal information to Disney. * Increased use of copy protection and other digital rights management tools in the marketplace. There are numerous instances of the use of digital rights management tools in the marketplace. iTunes Fairplay DRM is perhaps the most well known, but other services that use DRM include MSN music and video, Napster, Yahoo Music, Wal-mart, Movielink, CinemaNow and MovieFlix. The success of some of these business models are a testament to the fact that if content companies make their catalogues available in an easily accessible manner, with flexibility and at a reasonable price, those models will succeed in the marketplace, without government intervention. These tools are in addition to the strict penalties of current copyright law, including the DMCA. To the extent that the content industries are looking for a "speed bump" to keep "honest people honest," I would contend that many such speed bumps already exist, while more are being developed every day without government technology mandates. Finally, by far the most effective means of preventing piracy is for the content industry to do what it took the music far too long to do7 satisfy market demand for easy access to content at reasonable prices (which a free market will inevitably produce) that consumers can enjoy fairly and flexibly. DVDs are the best example of the market working. There, a government mandate the Digital Video Recording Act was rejected and an industry-agreed upon fairly weak "keep honest people honest" protection system was adopted. Despite the fact that the protection system was defeated long ago, the DVD market has grown at an astounding rate from zero in 1997 to $25,000,000,000 in sales and rentals last year. As I noted above, new music and movie digital download services are just now emerging in the market. We sincerely believe these efforts, if supported vigorously by the content industry, along with industry-agreed upon protection, will make government intervention in the free market unnecessary. Conclusion The draft bills presented here today reflect a vision of the future where government places itself squarely in the middle of technological design, and where consumers rights to make lawful uses of copyrighted content are determined by a government agency that is tasked with regulating our nations communications system. That vision is antithetical to the largely successful and generally balanced system we have now, where the marketplace is the driver of technological innovation, and copyright law, developed by Congress, governs consumers rights. Because this vision of the future so radically departs from the present, I urge this subcommittee to proceed slowly, with great deliberation and with input from the public given great weight. I want to again thank Chairman Smith, Ranking Member Berman and the other members of the Subcommittee for holding this hearing to discuss how to balance digital content protection with consumer rights to make lawful uses of copyrighted works. I look forward to answering any questions you may have. 1. I would like to thank Neil Chilson, Public Knowledges legal intern, Heidi Wachs, Public Knowledges legal fellow, and Fred Von Lohmann and Seth Schoen of the Electronic Frontier Foundation for their assistance with this testimony. 2. Moreover, Public Knowledge believes that any debate about technological mandates of the kind proposed here would be incomplete without a thorough consideration of how these mandates, together with the anticircumvention provisions of the DMCA, place limits on consumer rights and technological innovation. It has been suggested that H.R. 1201, "The Digital Media Consumers Rights Act" as introduced in the House Committee on Energy and Commerce, may provide a proper balance to the legal limitations imposed on consumers and innovators. Clearly this is a debate that deserves full public attention. 3. The equipment incompatibility problems caused by the broadcast flag scheme are myriad, and should be taken into account by this subcommittee as it considers the BFAA. In addition to the compatibility problems discussed in the CRS report (e.g., the inability to make copies on one system and play it on another), for example, none of the 13 different technologies approved by the FCC in its interim certification process are able to work with each other. This means that a consumer who buys one Philips brand flag-compliant device must buy all Philips brand flag compliant devices. This raises consumer costs, and also raises serious questions about competition among and between digital device manufacturers. For a detailed discussion of these issues, see http://www.publicknowledge.org/content/presentations/bflagpff.ppt 4. For a detailed analysis of the flaws of the FCCs certifications process, see Center for Democracy and Technology, Lessons of the FCC Broadcast Flag Process (2005), found at http://cdt.org/copyright/20050919flaglessons.pdf 5. I say "so called," because calling a digital radio broadcast signal "High Definition" is quite misleading. Whereas in the television context, High Definition connotes a far clearer and sharper picture, an HD radio signal simply raises the quality of AM radio to FM standards, and permits the reception of broadcast radio in places where an analog signal would get cut off, such as in a tunnel or at a traffic light. Indeed, an "HD" quality signal is not even a CD quality signal. See, Ken Kessler, Digital Radio Sucks, its Official, found at http://www.stereophile.com/newsletters/. 6. See Testimony of Dean Marks, Senior Counsel Intellectual Property, Time Warner, Inc., and Steve Metalitz, Representing Content Industry Joint Commenters, before the Copyright Office in Rulemaking Hearing: Exemptions From Prohibitions On Circumvention Of Technological Measures That Control Access To Copyrighted Works, May 13, 2003 at 60-61: "I think the best example I can give is the demonstration that Mr. Attaway [MPAA Executive Vice President for Government Relations and Washington General Counsel] gave for you [Marybeth Peters, Registrar of Copyrights] earlier this month in Washington in which he demonstrated that he used a digital camcorder viewing the screen on which a DVD was playing to make a excerpt from a DVD film and have a digital copy that could then be used for all the fair use purposes." (Mr. Metaliz at 60.) "I agree with everything Steve has just said about fair use copying or taking clips with digital camcorders and analog camcorders being widely available " (Mr. Marks at 61.) 7. See Keynote Address of Edgar Bronfman, Chairman and CEO of Warner Music at http://www.tvworldwide.com/events/pff/050821/agenda.htm. "The Music Industry, like almost every industry faced with massive and rapid transformation first reacted too slowly and moderately, inhibited by an instinctive and reflexive reaction to protect our current business and business models."

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Discussion November 2005