I am writing to urge your opposition to the "Enhancing Federal Obscenity Reporting and Copyright Enforcement (EnFORCE) Act of 2003". Mr. Hatch argues that "market realities" dictate a need for antitrust exemptions for the music and movie industries. As far as I can tell, the only market reality here is the fertile market that Mr. Hatch's campaigns have become for these industries, which have a history of insular and anticompetitive practices including construction of vertical monopolies and (very recently) price fixing in collusion with large retailers. Granting them exemption from Federal antitrust law would be the height of folly, and should not be included in any copyright reform act.

I recently received from Bill Nelson, one of my U.S. Senators, a response to a letter I had written him regarding copyright issues and, particularly, the use of copy-protection technology on audio CDs. This letter contained an interesting turn of phrase that set me to thinking hard about the challenges we face in dealing with politicians over issues of copyright, and how fair use fits in a world of technological insurgency and counterinsurgency in the access to and protection of copyrighted works.

Background

I was recently burned by a copy-protected CD (I won't say which because I don't want to declare open season on my musical tastes) that failed to play on my notebook CDRW drive where I listen to most of my music. Failing to get any satisfaction from the retailer, who of course would not take returns on open product (ironically because I could copy and return it), I decided to complain loudly to anyone who had an interest in ensuring fair practice between business and consumers. This list of communicants included:

• The Better Business Bureau
• The Federal Trade Commission
• My State Attorney General
• My U.S. Representative
• My U.S. Senators

Note that these last two were included, not because I expected them to drop by the local Best Buy and start kicking ass and taking names, but as I routinely correspond with them on copyright and technology related issues, I was able to insert my story in my next letter to them as anecdotal evidence of the kind of harm consumers could face from mandated DRM/copy-protection technologies.

Copy Protection or Copyright Protection?

Getting back to the point of this missive, the line from the Senatorial reply that inspired my contemplation was, with my emphasis added:

Thank you for contacting me regarding copyright protection of digital media.

Here is the crux of the matter: Copy protection (the term I used) is a technological measure to inhibit certain classes of use by consumers. Copyright protection (my Senator's term) is a matter of law, implemented by law enforcement to protect the rights of copyright holders. Conflating these two is dangerous because machines cannot consider the subtleties of the law, particular of fair use exemptions, and cannot be trusted with authority to protect copyrights, only to prevent copying.

How can we make this distinction clear to the policy makers who will impact the very future of technological, even intellectual, development of our culture? Their business being the law, they view the problem as one of making users obey the law via electronic proxies. The only problem is that machines do not easily understand exceptions, particular exceptions as subtle as those posed by copyright law. They do not know when copyrights expire, or when a particular copy is protected by fair use. How can we disabuse our representatives of the notion that machines can be made as cunning as legislators? How can we communicate that there is no technological mandate that will not have grave implications for fair use?

Or am I just being short-sighted in my view of the technlogy? As a software engineer, I am well aware of how biases and blind spots develop over time. Neglecting theoretical uncomputables and intractabilities, is it possible to encode the subtlety of the copyright law in software without binding the software to some global permissions database with the attendant implications for privacy?

To their credit, both my Senators and Representative claim to prefer market-driven solutions (although Rep. Wexler co-signed the Berman Peer-to-Peer Privacy Prevention Act and is now a founding member of the Caucus on Intellectual Property and Piracy Prevention, a congressional lobbying arm of the copyright industry if there ever was one), but it is clear from recent legislative history and a survey of pending bills that there will almost certainly be some form of governmental interference soon along the boundary between technology and copyright. It seems that now the only decision will be whether this action is taken to protect consumers fair-use rights or to strengthen the copyright cartel's stranglehold over electronic media and the technology that distributes and reproduces it.

Using -1 Overrated against +5 Funny is a waste of points. Someone else will come along and moderate it right back up!

I am writing today regarding last Thursday's introduction of H.R. 2517, the Piracy Deterrence and Education Act. While I find it refreshing that Congress would assign responsibility for monitoring of criminal copyright infringement to law enforcement where it belongs, rather than delegate it to corporate vigilantes (as with DMCA, P2PPPA), I am disturbed by some of the bill's text.

The conflation of copyright infringement with theft (H.R. 2517 repeatedly uses terms like "steal" and "theft") is disingenuous and dangerous. As you know, these are different crimes covered by different statutes, and it would be negligent to let this bill proceed as written. I request that you do whatever is within your power to ensure that the terms of the bill are clarified, and that any possibility of confusion of copyright infringement with more serious property crimes is removed.

The following text was sent to my Senators and, reworded in the second person, to Senator Hatch himself...

I am writing to express my dismay and outrage at comments made by Senator Orin Hatch during the Tuesday, June 17 2003 Judiciary Committee hearing on copyright issues. That a member of the Senate could advocate destruction of personal computers by copyright owners shows a shameful lack of respect for the law. The notion that due process can be circumvented in the interest of protecting intellectual property is absurd in the extreme. Are behaviors that would be considered terrorism under our statutes suddenly acceptable in the cause of defending the latest pop song or Hollywood movie?

I urge you to reprimand Senator Hatch for his words and urge him to start working now toward reasonable solutions to the current copyright/technology conflicts. Inflammatory rhetoric has no place in a reasoned debate, and if he intended these comments to be more than rhetoric, then he has no place in Government. Perhaps he would do better as a copyright paramilitary for the Recording Industry Association of America. I hear they're hiring.

It was with mixed feelings that I learned of the formation of the Congressional
Caucus on Intellectual Property Promotion and Piracy Prevention. While I
acknowledge that the current practice of casual "sharing" of copyrighted works
warrants action to preserve the rights of copyright holders, the initial
composition of the group, in fact the very name, suggests that it will promote
the interests of large corporate content owners while creating more
restrictions on technology, entrepreneurs and consumers. I apologize in advance
for the somewhat accusatory tone this letter takes and invite you to explain
why my concerns are unfounded, if indeed they are.

I have so far heard only four names associated with the caucus: Yours, Mary
Bono, Adam Smith, and Tom Feeney. I am well aware of your signature on and
defense of the Peer to Peer Privacy Prevention Act, Mary Bono's promotion of
the Sonny Bono Copyright Term Extension Act, and Representative Smith's letter
from last Fall assailing the GNU General Public License used by the Linux
operating system (a chief competitor to his large contributor Microsoft
Corporation) as a threat to "innovation and security". While Representative
Feeney's record appears to be sparse to nonexistent on copyright issues, I know
that second to the Club for Growth, his largest campaign contributor for the
2002 election was the Walt Disney Company. All these facts give me reason for
serious concern about the interests represented by the caucus. Is it to be an
unbiased panel for dealing with public policy issues raised by the collision of
technology and copyright, or a lobbying extension of the copyright industry?
When three-quarters of its initial membership have already demonstrated bias in
favor of that industry, and the third is bankrolled by one its largest
corporations, where is the voice of the consumer or of technology and content
entrepreneurs who don't already have billions in the bank?

Copyrights and patents are not property rights, but are suggested (not
mandated) by the Constitution as limited monopolies on creative work in
exchange for an ultimate payback to the public domain. This distinction was
made wisely by the founding fathers, and the arts and technology have advanced
unimpeded in many ways because of these limits on "intellectual property".
Imagine the penalty to our culture if no one could quote Dante or Shakespeare
without paying a royalty to their descendants. As ridiculous as it sounds,
copyright industry lobbyists have effectively used their paranoid view of
technology to put us well along the slippery slope at this point. The Digital
Millennium Copyright Act (DMCA) makes it possible for copyright owners to lock
up material behind encryption and prosecute the act of accessing it in an
"unapproved" fashion, even when that right is guaranteed in the US Code (fair
use) and case law that extends the fair use doctrine to include rights to time-
and space-shift. For good measure they throw in the Sonny Bono Copyright
Extension Act to ensure that the material remains, in effect, perpetually
protected.

I have never advocated any reduction in the rights of copyright holders. I hold
numerous copyrights myself, and in fact work in an industry (software)
dependent of IP protections. What I take issue with is the current trends of
legislation to criminalize technologies, rather than behavior, and to protect
the interests of one industry against the that of the public domain and of the
unimpeded advancement of science and invention.

So that I know exactly where you stand, and whether my energy spent expressing
concerns on this matter is worthwhile, I would like you to answer the following
questions:

1. Do you think the present copyright terms is too short, too long, or just
right?
2. Is present policy the best we can do to "advance the progress of the arts
and sciences" as the Constitution say? If not, how should the rules be changed
to do better?
3. What is the maximum amount of time "limited terms" can last when it comes to
patents and copyrights before terms are essentially permanent and the
Constitution is violated?
4. Do you believe it is appropriate for Congress to ban technologies that have
substantial non-infringing uses because those same technologies can be used for
copyright infringement?

I look forward to hearing your answers to these questions.

Dear Recording Industry Association of America:

As an Internet user, software engineer, and musician, I have followed the recent controversies over file-sharing and piracy issues and the RIAA's role in them with great interest. Until now, I have grudgingly respected your right to lobby the government and the courts for protection in the face of clearly illegal infringement of your protected works, though I have frequently disagreed with your tactics, which often amount to collective punishment of all consumers for the actions of the criminals.

I tolerated, because I had little choice, when you successfully passed the Audio Home Recording Act of 1992, placing a tax on blank DATs that I use to master my own music to compensate for your losses. I railed against the DMCA, which puts chilling restrictions on the advance of academia and technology in order to bolster your outdated business models. I began to question whether it was worth giving you my money when I bought my first copy-protected CD. I have never used a peer-to-peer network nor downloaded a copyrighted song except from the publishers themselves because I respect the right of creative people to be compensated for and to control reproduction their work. I've learned over time that this respect is not returned however, because I now have a disc that I can't listen to in my notebook computer since you have lumped me collectively with the rip-burn-share crowd.

Today, however, I am writing to inform you that your barratry against the computer science student Jesse Jordan of Rensselaer Polytechnic Institute, and final offer to "settle" for his $12,000 life savings (barely enough to cater your average record release party I imagine) officially goes too far. This student created a general-purpose tool for searching his campus network, and in your zeal to "send a message" to college students, you put him in position of defending *his* rights to create against your bottomless legal budget, all at a time when he was in no position to sacrifice his academic career to spend his days in court.

You have succeeded in sending a message to me. That message is that your organization is a litigious monster that does not deserve my support. I will not contribute to a group that sets itself against every technology it cannot control (I'm sure you would have lobbied to ban the Internet itself if you'd seen it coming) just because that technology might be used by criminals to infringe your copyrights, and for that reason I am declaring my intention today never to buy another recording released by an RIAA member label. This action on my part is a drop in the ocean to be sure, but I am far from alone in my disdain for your abuse of the courts and your customers, and the flood is gathering.

The next time you present Congress with your specious claims of losses due to piracy, I hope you will bear in mind that they will also have heard from me, and people like me, that another reason your sales are down is the unbelievable level of abuse and disrespect to which you subject your honest customers.

Sincerely Yours,
A.L. Borchers

Every +1 Funny mod point doubles the probability that someone will be compelled to reply with a lengthy and humorless response to your off-the-cuff remark.