|
|
May 15, 2003 IP JUSTICE TESTIMONY BEFORE U.S. COPYRIGHT OFFICE HEARINGS UNDER DIGITAL MILLENNIUM COPYRIGHT ACT
IP Justice welcomes this opportunity to testify to the Copyright Office about the adverse impacts Americans are experiencing in their ability to enjoy DVDs in non-infringing ways. The cause of this adverse impact is the access control technology employed by the movie industry to DVDs. The magnitude of this harm warrants the recommendation by the Copyright Office of the exemptions proposed by IP Justice in its submitted comments to permit circumvention in order to view a DVD on an unsupported player. We are mindful of the reasons given in the last rulemaking for rejecting any exemptions in relation to DVDs. IP Justice therefore wishes to emphasize four (4) important procedural factors in relation to this proposed exemption. These procedural matters are important because they shape the substantive findings of the rulemaking. First, we wish to remind the Copyright Office that its responsibility is to users and not to the copyright owners. Congress introduced the anti-circumvention measures to encourage copyright owners to make their works available digitally – or in the words of the last rulemaking, the measures are intended to be ‘use facilitating’. The responsibility of the Copyright Office in this rulemaking is not to repeat Congress’ logic but to protect users and ensure access – not availability – of protected works such as CDs. This did not occur in the first rulemaking in 2000. In that rulemaking, the Copyright Office gave undue preference to the interests of copyright owners, and in doing so, improperly reconsidered the interests of copyright owners. Second, the structure of this rulemaking, as interpreted by the Copyright Office, effectively precludes it from achieving its purpose. The Copyright Office insists that exemptions be defined according to ‘class of work’. Adequate protection of user rights requires that exemptions be drafted with reference to the type of user and circumstances of use. For example, if a person watches a DVD at home, they are not infringing the copyright owner’s public performance right but when they watch a movie in a cinema, the public performance right is implicated. Third, the Copyright Office has set an unduly high evidentiary standard given the nature of the harm it is supposed to protect against. This led to one of the Copyright Office’s conclusions in the first rulemaking that all allegations of harm were hypothetical in nature. However, the adverse effects experienced by users are likely, of their very nature, to be individual and discrete – difficult to measure and quantify. This does not detract from the existence of such harm. It does mean that Copyright Office should accept as sufficient evidence news reports and principled analyses of likely harm, which takes account of the interaction of the anti-circumvention measures with the limitations and exceptions for users under traditional copyright principles. It also means that the Copyright Office should give the comments and testimony supplied by ordinary individuals as much if not more weight as the views of corporations. IP Justice urges the U.S. Copyright Office to be mindful of the context within which this rulemaking occurs. This is important in three respects. To begin with, the context of this rulemaking is very different to the first rulemaking. Then, the prohibition on access circumvention had not yet taken effect. Three years later, restricted access DVD technology is more prevalent. Thus, the extent of the impact on users must be greater because the anti-circumvention measures are broader than copyright. The second important factor the Copyright Office should take account of is that the impact of any exemption will necessarily be limited. Acts of circumvention of access controls are, by their nature, inherently noncommercial and personal. Anyone who seeks to take advantage of an exempted act of access circumvention must be highly technically literate. A person cannot acquire a circumvention device or service from a third party nor make it available to someone else because to do so will infringe the anti-trafficking prohibitions of section 1201. This means that only a limited number of people are likely to be able to avail themselves of any of the exemptions. Thus the impact on the copyright owner of any exemption will be limited. Third, despite Hollywood’s promise to the U.S. Copyright Office during the last rulemaking that a Linux DVD player would be forthcoming - it has, three years later, proved to be ‘vaporware’. This means that a significant and growing portion of the population are unable to access DVDs they have purchased. Against this background, IP Justice makes the following four substantive comments. Firstly, we provided evidence of the need to bypass an access control in order to view a DVD on an unlicensed system. Second, the Copyright Office held in the last rulemaking that users do not enjoy an unqualified right to access works on a particular machine or device. This holding was inverted and misguided. It is copyright owners who do not have a right to dictate technology design – technology is a staple article of commerce. Indeed, Section 1201(c)(3) clearly states that the anti-circumvention prohibitions do not require the design of any particular technological measure. Users have a right to choose between technology platforms. As a result, competition can occur among technology providers to provide the best design. A finding which restricts freedom of consumer choice impermissibly extends the copyright owner’s monopoly. Therefore, the Copyright Office cannot and should not dismiss evidence of user harm based on technology preference. It has never been the law in this country that copyright creates the right to dictate technology choices to the consumer. DVDs are the personal property of their owners, and use-restrictions by the movie studios interfere with the owner’s ability to use her property in lawful ways. It is not the burden of the DVD owner to prove she has a right to view the film she paid for. On the contrary, any impingements upon the rights of the owner to lawful enjoyment of her property must be justified by the law. Third, in the last rulemaking, the Copyright Office incorrectly equated works available in DVD format to those which are analogue format. In doing so, the Copyright Office ignored the innovation which digital technology makes possible. DVDs are not the same as VHS. DVDs consist of numerous features that are not conceivable in analogue format. They may contain audio in different languages or subtitles, the ability to jump between scenes and additional commentary or information by actors and directors. Furthermore, movie studios have little incentive to continue to distribute VHS tapes in the future when DVDs give them total control over what an individual can do with the movies. Fourth, there is no evidence that user freedom of choice harms DVD copyright owners. A person who wishes to view a DVD on a platform of their choice is still a legitimate consumer – they must purchase the DVD prior to viewing it. The copyright owner is still compensated for that DVD. Tethering, however, allows a copyright owner to extend their monopoly and extract greater monopoly rents through its licensing of DVD software and hardware. This is the reason why copyright owners are reluctant to give consumers choice in technology platforms. This is the reason why the movie industry is content to ignore the platform preferences of legitimate customers. The Copyright Office’s duty is to the interests of users – including those who wish to enjoy the DVDs they purchase on Linux or any independently developed, and thus unlicensed, DVD players.
IP Justice testimony before U.S. Copyright Office in DMCA Hearings:
|
|
|
| ||||||||||
| ||||||||||
|