Press Release: NY Fair Use http://fairuse.nylxs.com New York City GNU/Linux NY Fair Use testifies for Fair Use at DMCA Hearings AOL TimeWarner and the MPAA caught lying on the public record by NYFairUse At the May 2nd, 2003 hearing for exemptions to the anti-circumvention provisions of the DMCA, NYFairUse (a subcommittee of NYLXS) confronted several false statements in testimony given by the MPAA, CSS Corporation, and AOL TimeWarner. CSS Corporation provides the encryption system for all DVD disks produced by members of the MPAA. The falsehoods stated by the content control industry swept through a whole gamut of issues, ranging from the claim that Linus Torvalds said the GPL was compatible with Digital Rights Management to an attempt to conceal that regional coding was inaccessible without cracking the CSS encryption system. Along the way AOL TimeWarner's representative claimed that copyright holders had the right to say exactly where an individual was allowed to watch DVDs. NYFairUse chairman Ruben Safir offered his testimony after the witnesses were introduced to the panel. In his opening remarks Mr. Safir stated that the failure to legally play DVDs on a free operating system deprived millions of people of their fair use rights. Mr. Safir went on to say that although the class of works under discussion was audio-visual, he had originally asked the copyright office to include all copyrighted works which were purchased in a normal cash-and-carry transaction without an explicit contract. The leader of NYFairUse then read several passages out of the 4th and 5th amendments to the U.S. Constitution, which guarantee the rights of individuals regarding their private property and security in their homes. After reading the appropriate passages of the constitution, Mr. Safir and Mr. Phil Gengler demonstrated the type of theft exemplified by DRM. Mr. Safir held up an audio CD containing the music of Fats Waller. He then gave it to Mr. Gengler. Mr. Safir then asked, "Can I buy that CD from your store?" Mr. Gengler said "Yes." "How much is it?" asked Mr Safir. Mr. Gengler replied, "It's 50 cents." Mr. Gengler accepted two quarters as payment and then put the disk into the hands of Mr. Safir. When he tried to put the disk in his bag Mr. Gengler refused to release it! The chairman of NYFairUse then faced the committee and said, "This is an example of theft. This is what DRM on DVDs does to every consumer, when they can't skip past the previews or play the disk on a Free Operating System, or when they can't play it on their unauthorized blender if they choose!" He concluded the demonstration with the statement, "DRM is theft, and it steals from the stakeholders. We are the stakeholders of copyright. DRM violates the rights of individuals under the 4th and 5th Amendments of the U.S. Constitution which, as recently pointed out by Supreme Court Justice Ginsberg in the Eldredge v. Ashcroft decision, contain the Fair Use doctrine as a right of individuals." Mr. Safir held up an audio CD containing the music of Fats Waller. He then gave it to Mr. Gengler. Mr. Safir then asked, "Can I buy that CD from your store?" Mr. Gengler said "Yes." "How much is it?" asked Mr Safir. Mr. Gengler replied, "It's 50 cents." Mr. Gengler accepted two quarters as payment and then put the disk into the hands of Mr. Safir. When he tried to put the disk in his bag Mr. Gengler refused to release it! The chairman of NYFairUse then faced the committee and said, "This is an example of theft. This is what DRM on DVDs does to every consumer, when they can't skip past the previews or play the disk on a Free Operating System, or when they can't play it on their unauthorized blender if they choose!" He concluded the demonstration with the statement, "DRM is theft, and it steals from the stakeholders. We are the stakeholders of copyright. DRM violates the rights of individuals under the 4th and 5th Amendments of the U.S. Constitution which, as recently pointed out by Supreme Court Justice Ginsberg in the Eldredge v. Ashcroft decision, contain the Fair Use doctrine as a right of individuals." At this point the chairman of NYFairUse leveled the first charge of dishonesty toward the content control industry. He noted that in last year's testimony Barry Sorkin of AOL TimeWarner, along with representatives from the MPAA, claimed that DVD encryption prevents piracy by preventing the direct physical copying of disks. They claimed that as such, it was a deterrent to piracy. In fact this was simply not true. A few weeks after their statements a Queens, NY warehouse was raided and revealed several hundred illegal DVDs that had been created by copying the disk with all encryption keys intact. It makes no difference whatsoever if the content copied to a DVD is encrypted or not -- the disk simply plays. Mr. Safir then told the panel that in light of this previous deception, the testimony of those who oppose exemptions should be discounted or at least held under extreme suspicion. As testimony continued, NYFairUse and Robert Moore of 321Studios caught the content industry in several other lies. AOL TimeWarner and CSS proved themselves dishonest and evasive when responding to the panel's questions. The panel was particularly interested in regional coding, and asked if it was possible to access the technology without hacking into the CSS encryption itself. Rather than give a direct answer, the witnesses evaded the question with an incomprehensible statement that took nearly ten minutes to produce. The Copyright Office panel grew increasingly frustrated and asked the question again. When pressed, the MPAA finally said that it is possible to access the regional code without decrypting the disk. Mr. Moore of 321Studios then objected to the claim. 321Studios has a product to repair and backup DVDs. He knows every aspect of DVD engineering, and he refuted the MPAA's answer that regional codes can be accessed without decryption of the disk. Mr. Safir then objected that those opposed to DMCA exemptions are stalling, obfuscating their answers, and now lying. He complained that this is a simple "yes or no" question that does not warrant throwing a pile of techno-jargon at the panel in an effort to confuse them. He then compared this testimony to the Challenger disaster hearing, in which the engineers spent weeks confusingly testifying to Congress until finally someone dropped a rubber O-Ring into liquid nitrogen, placed it on a table, shattered the component and said, "That's the problem that likely caused the accident." The chairman of NYFairUse then clarified that this is a simple matter: "The regional coding is in the encrypted data. You can't access the yolk of an egg until you break the shell." The panel later asked a very tough line of questions regarding the reasons for regional encoding. Steve Tepp, the Policy Planning Adviser of the Copyright Office, asked why this encoding was necessary. AOL TimeWarner's representative Shira Perlmutter offered a convoluted explanation, in which she claimed that AOL TimeWarner didn't want people to see movies in different countries for marketing reasons. She further explained that these marketing reasons were a result of the desires of copyright holders, who have the right to determine which people should be allowed to access their work. This brought a strong response from the panel. They asked her if she believes AOL TimeWarner has the right to prevent someone who purchases a disk in Japan from viewing it in the U.S. "Yes," she answered. The audience reacted with howls of protest. She then changed her answer. AOL TimeWarner also stated that they were strong proponents of the cyclic DMCA review process by the copyright office. But they later argued that there are no current conditions in which section 1201a or 1201v(D) can be invoked, as there is no such thing as a non-infringing use since the copyright holder has exclusive rights. Phil Gengler interjected that under those conditions the entire 1201 section is invalid -- according to that line of reasoning only copyright holders have the right to evaluate who can access copyrighted material, not to mention where and when! The NYFairUse chairman added that this kind of reasoning would subvert the will of Congress. AOL TimeWarner was caught in the lie that they supported the process, when they actually propose a standard which excludes enforcement of the law as passed by Congress. Fritz Attawy of the MPAA testified, claiming that it was currently legal to watch DVDs using Linux and that Linus Torvalds claimed that nothing in the "Linux" license or the operating system prevented the use of CSS DRM. NYFairUse pointed out that the MPAA is lying and didn't quote the entire article. There is nothing in the article which allows the development of CSS DRM. The Panel responded that it could discuss this in more detail later, but never returned to the point where Torvalds clarified that all keys would need to be visible in the source code (a violation of the CSS license). The Free Software community could not allow alteration of the source code to cripple functionality of software using CSS keys under the CSS licensing agreement. Clearly the MPAA lied again, and confused the issue before the copyright commission. Despite their apparently strong questioning it is very unlikely that this panel will create exemptions. They appear to reject the Supreme Court rulings and the provisions in statutory law which define the Fair Use Doctrine as wider than the specifics of Article 107 of the copyright code, despite the long legal tradition of fair use and a plain reading of the Constitution. NYFairUse and its parent organization, NYLXS, have a great deal of public education to do while the public is still able to connect the dots. Mr. Safir told the panel that as a people and a society we have two paths before of us: One is a free society with an increasing opportunity for participation and education; the other path is a blind march toward George Orwell's "1984". Many examples were provided of the inhibitions currently in place, and how society is being harmed without the proposed exemptions. We will need to continue our efforts to educate the public and untether information from the content control industry, while enforcing the 4th and 5th amendments of our Constitution.