New Yorkers For Fair Use

© Copyright for the Digital Millennium

I'm Jay Sulzberger, and I'm here to represent New Yorkers for Fair Use.

Well, I was a little bit puzzled as to what to say on this panel, because seemingly this particular panel is about very specific harms of a very specific part of a big, complex law.

But as a matter of fact, I've been provided by the first three panelists with a parade of horribles. Mr. Montoro seems to have an 86 page parade of horribles, and of course CERT has an extraordinary parade of horribles -- things that one would not have thought could happen in America, things that one would have expected in the old Russian Communist empire. And of course, Mr. Band has just brought up the problem of the looting, spontaneous or planned, of ancient libraries of Earth's heritage.

I will just try to make what I thought was a difficult argument: We should not be discussing particular exemptions of particular clauses of the DMCA. But I think that with the three panelists before me, the pattern is clear: There's no excuse for any anticircumvention law in the United States of America. Because in each and every case, it is not that we have a parade of particular offenses against good sense, offenses against our freedom, attacks on free markets, attacks on scientific research, attacks of artists rights, attacks on our right to free speech, and most important, a fundamental, general and effective attack upon our present right of private ownership of computers.

Computers today are printing presses -- and it's shocking! I have certain conservative tendencies; I am also sympathetic to the socialists. But the idea that everybody who's a member of the middle classes can pick up a computer for 300 bucks, and pay their 20 bucks a month and get Internet access, and set up a web page -- it's shocking! Democracy is one thing, but mob rule is another. But yet, there's nothing that America can do about this. I hope there isn't.

But it looks as though there is. The DMCA anticircumvention clauses, in combination with the loose association, the alliance of cartels, oligopolies and monopolies which I term the englobulators, is in process of placing spy machinery and remote control machinery at this very moment, into every single Intel motherboard that's going to be sold in the next year. When Microsoft completes the software part of its system of DRM called Palladium, this will end, completely, your right of ownership, your right of private use of your Palladiated computer.

Now, the question arises: This can't be true, what I'm saying. I'm a nut, I'm an extremist, I'm strident. Yes. (Laughter) But I'm not nearly as much of a nut, I'm not nearly as much of an extremist, and I'm not nearly as crazy, vicious and strident, as the englobulators.

The question arises as: Why hasn't the press picked up on the fact that I'm the less extreme of the extremists? I believe in the Constitution -- even though I didn't sign it; that's my anarchist side. I think there's something to the first ten Amendments. And I think we should take the Fourth Amendment very seriously. I think also the Fifth has something to say about takings.

Why doesn't the press get it? It's a very simple reason -- I'm talking about rights and powers. I'm talking about fundamental rights of ownership, fundamental rights of free speech, fundamental rights of free association using our Internet and our computers. Why doesn't the press get it? Because in practice today, most people run a damaged, malfunctioning and obsolete operating system, usually called Microsoft Windows -- there's several versions.

Copyright law has already been, I think, dreadfully misapplied for the last twenty years, to prevent people from gaining control of their own property in their own homes. This is important property. We know that Microsoft -- and as a matter of fact all other vendors and makers of source-secret operating systems -- it's almost impossible not to give in to the temptation to spy somewhat on your users, particularly if they're connected to the Internet. Sun has done it; other companies have done it. It's mainly Microsoft because it was only interested in the Internet after 1990, although some of us have used the Net since 1970. Now most people have a computer. It is their means of personal communication; it's also their means of authorship, and their means of publication.

Now, let me deal with the accusation of copyright infringement. Yeah, sure -- there's going to be a heck of a lot more very serious copyright -- of the most dreadful sort -- because there are computers on the Internet, and I don't give a good gosh-darn about it. The invention of writing was dreadful to the ancient and honorable profession of the singing poet. The invention of the printing press did terrible things to the Catholic Church's position in Europe, particularly once the Bible was translated and then printed.

Things change. And the cries of a small, unimportant industry -- I mean the whole of the "content providers" side -- who of course refuse to admit there are any more content providers -- I really enjoy my own stuff much more than anything Disney has made since 1935. I stand equal to them, by the way. New Yorkers for Fair Use, one of our favorite tropes is: "Nonsense! We're not consumers; we're owners and we're makers."

Okay. Let me try and outline what anticircumvention laws do, and what they're about. This is one of our standard pieces of propaganda; we've been handing it out since last summer (Shows flyer).

"We are the Stakeholders" -- why do we say we're the stakeholders? This is an old joke, everybody knows it, I'm sure I'm not the first person to say this. In Washington parlance they say, what is a stakeholder? It's some organized group that can afford a full-time lobbyist, that's all.

The bizarre spectacle of seeing small private interests -- when I say small, I mean small: the cotton subsidies last year in the United States were about, I think, 40% of the gross of Hollywood. You don't see huge articles about particular wrongs and a huge struggle on the basic principles over how much of a subsidy they should get.

Okay. I'm not sure I'm actually going to read this whole thing, but -- "Freedom One: You may buy a copy of a movie recorded on DVD, you may watch this movie whenever you please, you may make copies of this movie, some of which may be exact copies, others of which may be variant copies." We all know that the legal underpinnings of DRM is anticircumvention. In the future, you won't be able to do that.

Now, this is an assault on private ownership of computers. This is absurd. There's no need to say it, you all know this: Ernest Miller and Joan Feigenbaum, both at Yale, suggested that this is just a mistake, it's going to be corrected. Copyright law shouldn't say anything about private copies. In the first place, technically it's going to be very hard. You're going to have an endless line of the most difficult, subtle things. For example, something on a news spool. Is that a copy or is it something in transmission?

The natural point which will defend us against the dreadful assault on private property which is all the anticircumvention clauses of the DMCA, is to draw a natural line. Inside your house, you've got a copy of something, if you've lawfully obtained it -- Oh, by the way, we're not copyright extremists. I myself am a big supporter of the GPL, which is a somewhat strict copyright license, and I consider it actually one of the main foundations of the defense of free software.

If you don't draw the line, if you seek for exemptions, you'll have to make hundreds of exemptions -- and even if you enforce them -- and you could enforce them -- the principle would remain: you don't have control over your machine. You'd have to get lobbyists, or a grassroots organization to come to Washington, appear before you every three years, and beg, on bended knee, for particular exemptions.

You don't have to do that. You are allowed to turn to Congress and say, we've seen the parade of horribles. And not just one parade. All of the people here, arguing for exemptions -- the principle is the same: These people can't reach into your house and tell you what to do! It's absurd!

I'm going to try to avoid discussing the other side of the bundle of rights that these people want to take away from us: the right to free publication, the right to free dissemination -- which are of course restricted by copyright, which I support strongly. I don't think it right that I should be allowed to go down and steal a movie without paying for it and set up a movie house and charge admission for it.

I'm sorry, I lost my track in one of my sentences -- You know, the Xerox machine -- it's always the same structure, we all know this here: the people who have the old methods for publication think their methods have to go on forever; always the words "business model" are used. Well, you know, we're not worried about their business models. We're worried about our computers and our rights.

And I believe it is within your commission to turn and then say, "We've had it." What are we going to do, have to have these hearings every six months? We're going to have to have ten of you up there, and a hundred of us here, explaining the absolute terrible things that anticircumvention laws in the United States do to markets, do to freedom of speech, do to development of better computers, etc., etc., etc.

I think you can turn and say, "We've heard enough. We suggest that Congress reconsider the entire bundle of anticircumvention clauses of the DMCA."

And if I'm asked a specific question, I will be happy to try and connect by at most three half steps, any particular anticircumvention measure to truly horrible and very large scale things.

Thank you.