Report on the Copyright Office’s Section 1201 Rulemaking Hearings of May 14, 2003

[What follows is a report from [redacted].]

I attended the Copyright Office Section 1201 Rulemaking Hearings yesterday. I was planning on also going today, but something came up at the office that I had to tend to.

Yesterday’s proceedings did not present anything out of the ordinary, other than comments by a gentleman named George Ziemann, who attended the panel on behalf of “himself,” stating bluntly that the Copyright Office is “losing its relevance” and that he would rather “donate his copyrights to Leonard Lessig’s [sic] Creative Commons than file for copyright registration with the Copyright Office.” The audience laughed to itself, and we all just kind of put our heads down and went “oh jeeze.” Needless to say, his confrontational comments made everyone in the room a little uncomfortable, and spurred some interesting facial expressions from the Copyright Office attorneys.

Brewster Kahle from the Internet Archive gave a great presentation (as did his counsel, my friend Marian Selvaggio from Wilson Sonsini), arguing for an exemption to circumvent access control mechanisms for purposes of archiving software. The Internet Archive archives software and games (amongst other things) by copying the data onto hard drives and then running emulation programs to recreate the original operating environment. Mr. Kahle gave a cool slideshow while contemporaneously showing off actual disks and game boxes from many software and game titles we all grew up on. At one point he broke out a Ziplock bag containing an original 5 1/4" floppy disk from an Apple II. Mr. Kahle’s cool exhibits, quirky personality, and energy breathed refreshing life into the proceedings.

Steve Metalitz responded to Mr. Kahle’s requests for the exemption by repeatedly urging that since many software publishers from the early 80s, such as Microsoft, Lotus, etc., are still “being actively traded on NASDAQ everyday” that Mr. Kahle should simply ask for permission to circumvent the archaic anti-access and copying devices used back then (such as dongles and the like) rather than have the Copyright Office grant an exemption for this purpose. Amongst George Ziemann’s intermittent interruptions, Mr. Kahle responded to Mr. Metalitz’s comments by saying “you know, when we visit a company like Lotus and show them our copy of their software from 1984 to ask if they can help us decrypt its access control mechanisms, most of the time these guys are like WOW!, COOL!, WE HAVEN’T SEEN THAT THING IN AGES! CAN WE HAVE THAT?” Mr. Kahle then stated that these companies no longer maintain the hardware and software devices necessary to decrypt the aging software, and stated that software companies are in the business of releasing software not preserving antiquated versions, and that asking a software company for permission or help to decrypt their software is not an option. Mr. Kahle and Marian Selvaggio put forth a very compelling case for the exemption, and it will be interesting to see how responsive the Copyright Office will be.

The other highlight of the day was watching the discussions in Session Three pertaining to sound recordings and musical works. More specifically, the discussion centered around anti-copying devices the record labels have been using to prevent CDs from playing in computers. Panelists included Gwen Hinze and Ren Bucholz from the EFF, Robin Marks from IP Justice, Steven Marks from the RIAA, and Mark Belinsky from Macrovision, Inc. (a company making DRM technology for the music industry). It was very difficult to hear Gwen Hinze’s comments, which were very soft spoken, but many of her comments were echoed by the louder Robin Marks from IP Justice, who basically said that the anti-copying mechanisms effectively serve as anti-access measures, and are denying consumers of their reasonable expectations when they purchase CDs. Steven Marks from the RIAA responded by saying that only 9 titles have been released with such encryption in the United States, and that complaints from users have been few.

Responding to IP Justice’s comment that consumers should be able to play a CD in any device of their choosing by virtue of the fact that they own the CD, the RIAA argued that consumers do not have this right and that it is instead a luxury that consumers to date have incidentally enjoyed. Mark Belinsky then stated that as multiple formats of CD and DVD (blue laser, etc.) develop, the 5 1/2 inch disc will embody ubiquitous formats, and this will prevent playback of any given disc across various platforms even though each platform may read content from some form of 5 1/2" media. Overall, Steven Marks did a bang up job for the RIAA, making well-crafted arguments and maintaining a steady, calm and collected tone despite a few heated questions from one Copyright Office attorney who almost seemed to have it out for the RIAA. Overall, the RIAA took the position that present and future technological devices are not intended to deny consumers of their expectations, and Mark Belinsky chimed in by saying that future CDs (to be released as soon as November I think he said) would contain "two sessions" of data — one for playback in traditional audio devices (stereos), and one for playback in computers running Windows XP, which should meet consumer’s expectations while addressing the RIAA’s concerns about piracy.