[!CrackMonkey!] By Jay Sulzberger. Anticircumvention.

[Don Saklad]

By Jay Sulzberger. Anticircumvention.

...CHAIRPERSON PETERS: Thank you. Mr. Sulzberger.
http://www.copyright.gov/1201/2003/hearings/transcript-may2.pdf
http://www.copyright.gov/1201/2003/hearings/schedule.html
http://www.copyright.gov/1201/



...

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...

MR. SULZBERGER:
Thank you.

I'm Jay Sulzberger and I'm here representing New Yorkers for Fair Use.

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

But as a matter of fact, I've been provided by the first three panels with a
parade of horribles.



Mr. Montoro seems to have an 86 page parade of horribles.

Of course, CERT has the most extraordinary parade of horribles, things that one
would not have thought could happen in America, things that one would have
expected from the old Russian Communist Empire.

Of course, Mr. Band has just brought up the problems of the spontaneous or
planned looting of ancient libraries of Earth's heritage.



I was going to try to make what I thought was a difficult argument that we
should not be discussing particular exemptions to particular anti-circumvention
clauses of the DMCA.

But I think that with the three panelists before me that the pattern is clear.

There is no excuse for any anti-circumvention law in the United States of
America because in each and every case it is not

p183

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 upon our rights of free speech and the 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'm also sympathetic to the Socialists but the idea that everybody who is a
member of the middle classes can pick up a computer for $300 and pay their $20
a month and get Internet access and set up a webpage, it's shocking.

Democracy is one thing but mob rule is another.

Yes, there's nothing that America can do about this.

I hope there isn't but it looks like there is.



The DMCA'a anti-circumvention clauses in combination with the loose
association, alliance of cartels, oligopolies, monopolies, which I term the
"Englobulators" is in the 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 new year.

When Microsoft completes the software part of its system of DRM

p184

called Palladium, this will end completely your right of ownership, your right
of private use of your Palladiated computer.



Now a question arises.

It can't be true what I'm saying.

I'm a nut.

I'm an extremist.

I'm strident.

Yes.

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, strident as the Englobulators.



The question arises.

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 is something to the first 10 amendments and 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?

A very simple reason.

I'm talking about rights and power.

I'm talking about fundamental rights of ownership, fundamental rights of free
speech, fundamental rights of free association using our Internet and our
computers.

Because in practice today, most people run a damaged, malfunctioning and
obsolete operating system usually called Microsoft Windows

p185

or several versions.

Copyright law has already been dreadfully misapplied in the past 20 years to
prevent people from gaining control of their property and their house.

It's pretty 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 given into the
temptation to spy somewhat when you are ether connected to the Internet.

Sun has done it.

Other companies have done it.

It's mainly Microsoft because it was only after 1990 that the Internet became
widely spread although some of us had email in 1970.

But now, most people have a computer.

It's their means of personal communication.

It's also their means of authorship.

It's their means of publication.



Let me deal with the accusation of copyright infringement.

Yes, sure.

There can be a heck of a lot more very serious copyright, the most dreadful
sort because there are computers in the Internet.

I don't give a good God darn about it.

The invention of writing was dreadful to the ancient honorable profession of
the singing poets.

The invention of the printing press did terrible

p186

things to the Catholic Church's position in Europe particularly once the Bible
was translated and then printed.



Things change.

The cries of a small unimportant industry, I mean the whole of the
"content providers."

I, of course, refuse to admit that there are any more content providers.

I reread my own stuff and enjoy it much more than Disney has made since about
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."



Let me try and outline what anti-circumvention laws do and what they're about
to do.

This is one of our standard pieces of propaganda.

We've been handing it out since last summer.

"We are the stakeholders."

Why do we say
"We are the Stakeholders"?

It's an old joke.

Everybody knows this.

I'm sure this is not the first person to say.

In Washington parlance, what is a stakeholder?

It's some organized group that can afford a full time lobbyist.

That's all.



The bizarre spectacle of course of seeing small private interest, when I say
small, I mean small.

The cotton subsidies last year in the

p187

United States were about 40 percent the gross of Hollywood.

You don't see huge articles about particular laws and the deep struggle and the
basic principles over how much of a subsidy they should get.



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 which may be exact copies and others
may be variant copies.



We all know that the legal underpinning of DRM is anti-circumvention.

In the future, you won't be able to do that.

Now this is an assault of private ownership of computers.

This is absurd.

Let me just say and you all know this, Ernest Miller and Joan Feigenbaum both
of Yale have suggested that this is just a mistake and it will soon be
corrected.



Copyright law shouldn't say anything about private copy.

In the first place, technically it's going to be very hard.

You're going to have endless of the most difficult subtle things.

For example, there's something on a news spool.

Is that a copy or is it something in

p188

transmission?



The nature point which will defend us against the dreadful assault on private
property which is the all the anti-circumvention clauses of the DMCA is to draw
a nature line inside your house.

You have a copy of something.

If you have lawfully obtained it P-By the way, we're not copyright extremists.

I myself am a big supporter of the GPL which is a somewhat strict copyright
license.

I consider it to be part of the one main foundations of the success of free
software.

If you don't draw the line and you seek for exemptions, you'll have to make
hundreds of exemptions.

Even if you enforce them and you could enforce them, the principle would
remain.

You don't have control of your machine.

You have to get lobbyists or grassroots organizations to come to Washington to
appear before every three years and beg on bended knee for a particular
exemption.



We don't have to do that.

You are allowed to turn to Congress and say "We've seen the parades of
horribles and there's 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

p1898

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 rights of free publication,
the rights of free dissemination which are of course restricted by copyright
which I support strongly.

I don't think it right that I should 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 lose my track on one of my sentences before.

You know the Xerox machine.

It's always the same structure you all know this year.

The people who have the old methods of publication think their methods have to
go on forever.

Always the word "business model" is used.

We're not worried about their "business models."

We're worried about our computers and our rights.



I believe it is within your commission to turn and say we've had it.

What are we going to do?

Do we 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 anti-circumvention laws in the
United States do to markets, do to

p190

freedom of speech, do to development of better computer, etc., etc.

I think you can turn and say "We've heard enough."



We would suggest that Congress reconsider the entire bundle of
anti-circumvention clauses of the DMCA.

If I'm asked specific questions, I would be happy to try and connect by at most
three half steps any particular anti-circumvention measure to truly horrible
and very large scale things.

Thank you.



CHAIRPERSON PETERS: Thank you...

...



p1

UNITED STATES OF AMERICA
+ + + + +
LIBRARY OF CONGRESS
COPYRIGHT OFFICE
+ + + + +
RULEMAKING HEARING
+ + + + +
FRIDAY, MAY 2, 2003
+ + + + +

The hearing was held at
9:30 a.m. in the
Postal Rate Commission's Hearing Room,
Third Floor, 1333 H Street, Washington, D.C.,
Marybeth Peters, Register of Copyrights, presiding.

PRESENT:
MARYBETH PETERS  Register of Copyrights
DAVID CARSON  General Counsel of Copyrights
CHARLOTTE DOUGLASS  Principal Legal Advisor
ROBERT KASUNIC  Senior Attorney of Copyrights
STEVEN TEPP  Policy Planning Advisor

PANEL I WITNESSES:
FRITZ ATTAWAY
MICHAEL EINHORN, Ph.D.
PHIL GENGLER
STEVAN MITCHELL
ROBERT MOORE
SHIRA PERLMUTTER
RUBIN SAFIR
BRUCE TURNBULL

PANEL II WITNESSES:
JONATHAN BAND
SHAWN HERNAN
KEN KUPFERSCHMID
CHRIS MOHR
JOSEPH V. MONTORO, JR.
EMERY SIMON
NEAL R. GROSS

p2

JAY SULZBERGER



p3

I-N-D-E-X
Morning Session   Page
Motion Pictures and Audio/Visual Works
Rubin Safir       6
Phil Gengler      14
Robert Moore      16
Michael Einhorn   32
Bruce Turnbull    39
Shira Perlmutter  48
Fritz Attaway     54
Stevan Mitchell   58

Questions and Answers

Afternoon Session

Literary Works
Joe Montoro      143
Shawn Hernan     158
Jonathan Band    166
Jay Sulzberger   170
Chris Mohr       178
Keith Kupferschmid  181
Emery Simon      196

Questions and Answers



p4

P-R-O-C-E-E-D-I-N-G-S

9:38 a.m.

CHAIRPERSON PETERS:

On the record.

Good morning.

I'm Marybeth Peters, the Register of Copyrights.

I would like to welcome everyone to the third of the four days of hearings in
Washington in this Anti-Circumvention Rulemaking.



The purpose of the rulemaking proceeding is to determine whether there are
particular classes of works as to which users are or are likely to be adversely
affected in their ability to make non-infringing uses if they are prohibited
from circumventing technological measures that control access.

It's a long sentence.


Today our session will focus on a number of proposed exemptions relating to
audio-visual works on DVDs including backing up audio-visual works, tethering
an audio-visual work to particular devices and region coding on DVDs.

This afternoon's session will focus on proposed exempts for literary works
including computer programs...

...



p194

...

MR. KUPFERSCHMID:

Good afternoon.

I'm Keith Kupferschmid.

I have to say I've been called many things in my lifetime,
some good and some bad.

I've never been called an Englobulator.

Is that what's it called?



MR. SULZBERGER:

Englobulator.

I think that's useful term of art.

...



p242

...

MR. SULZBERGER:

I'd like to address the question of harms due to the DMCA and actually earlier
what I consider misguided laws about copyright and software.

I would like to specifically address some of the supposed harms that would come
to writers of anti-virus software.



You know real operating systems simply don't have viruses.

For example, none of the Unisys have viruses despite the claims of the
Microsoft apologists.

There is no cause for any anti-virus software so there is no cause for any
discussion now.



p243

How come you can't go into a store and just buy an already loaded cheap
IBM-style PC loaded with a free operating system?

The BSA is of course partly at least a creature of Microsoft and they go around
they terrify small companies and medium sized companies and government agencies
and school districts and demand that their licenses be shown to them.



At the same time, Microsoft's copyright license with the endusers guarantees
the enduser the right to refuse the license and get a refund.

The BSA stands with Microsoft in refusing to grant endusers relief from ever
having to worry about anti-virus software.



Now I'm going to connect this with dongles too.

Dongles are old and nowadays often limited piece of hardware and software which
is indeed a form of DRM or copy protection.

Microsoft in collusion with unfortunately Intel and other large manufacturers
of CPUs and motherboards is in the process of creating a single dongle which is
deeply embedded into the motherboard and the CPU.

There will be no dongle business and there'll be no getting around dongle
business when this happens.

This is happening now.



p244

The harm to consumers is simple.

No matter what Microsoft says and no matter what the BSA says they intend to
never allow any free operating system, one that doesn't have viruses, the ones
that run the `Net, the ones that send your email, the ones that run most of
your websites that you go to.

They don't want to let those into people's houses.



The foundation, the legal underpinnings by which they intend to prevent this is
misuse of copyright law.

I just wanted to address where the real harms are.

We're not talking about small to small companies or dongle go-arounds or dongle
helper companies or dongle companies.

We're talking about the entire home operating system business.



The reason you have viruses and the reason your stuff doesn't work so well is
because misapplication of copyright law and the failure to enforce the
Anti-Trust Law.

Every single anti-circumvention provision acts to increase the power of the
present cartels, oligopolies and monopolies here.

Thank you.

...




p256

...

MS. DOUGLASS:

I just have some quick one-shot questions. One of them goes to Mr.

p257

Sulzberger.

I understand I think that we're not here to really talk about fair use in
general so whether or not the DMCA shafts fair use or not.

I just wanted to ask about Palladium.

What are the alternatives to Palladium?

Why would you say "the end of the world we're not going to be able to do
anything after"?



MR. SULZBERGER:
I can think of many business models as they are called or fanciful projections, businesses.

But if I had the same persuasive power not saying anything corrupt here in any
simple way that the Congress of the United States as the MPAA and the RIAA, the
American Association of Publishers has, I can think of many business models
that could make me billions of dollars very quickly if I could get special laws
by which the United States, police forces and the courts would protect my new
businesses.



Here's a new business.

I project porn on the side of buildings and I then debt people's accounts if
they look at it.

Now I could claim as a matter of fact under Copyright law that I need these
special protections.

After all, I own the porn in the sense of copyright because I hold the
copyright.

My answer is very simple.

Things

p258

really do change.

We don't build pyramids anymore.

Faberge eggs haven't been made in some time.

Actually stuff like Petrarch wrote isn't being produced as much anymore.

There are extraordinarily complex and actually heavy interactions between law,
polity, custom, economics and human techniques of building things.



So today the music industry cartel of the most absurd sort is able to charge
$15 or $20 for a CD of a few songs.

I don't know.

I've never bought one in my life.

Now that the Internet has come and computers have come surely there is dreadful
copyright infringement just as there is every single day when one uses the
Xerox machine.



The answer is that Congress shouldn't pass laws to defend the special interests
which are themselves gross violators of anti-trust law in the crudest possible
sense and of course real copyright infringers as everyone knows.

In a matter of fact if there were a symmetry in these laws, I would demand P
Here's my answer to Palladium partly -that I be given permission to seize
control of all the RIAA companies' computers so I could make sure they are not
violating my copyrights.



After all, their company is somebody

p259

that's been convicted and have paid hundreds of millions of dollars for
copyright violations.

I have never violated a copyright in my life on any piece of popular music.

So it seems to me quite reasonable that I should be able to go to the Congress
and say and I should be able to go to Microsoft and say "Give me control over
their machines.

The answer is things change.

If it's no longer they can't make money by selling CDs or they can't make money
by selling things over the `Net if the trade-off is I give up my right to
private ownership of my computer, I give up my right to privately e-mail,
encrypt what I want to my friends, then I say "Good, there is no more such
business."

There aren't any buggy-whip companies today and that's because things change.



Once you get a sense that what we're talking about is a small industry,
there'll be music.

I make music for myself.

There'll be music.

There'll be performances of music.

With the free Internet, we'll make movies and we'll make more music.

We'll make it collaboratively.

Already people have put together which is not as finished a product as the
"Star Trek" movies but amateurs have thrown together a short "Star Trek"

p260

movie.

Probably they would consider perhaps a copyright violation, the copyright of
the only idea of the "Star Trek" universe.

We don't need to give up private ownership of computers just to protect a few
cartels.



By the way, one of the monopolies we'll be protecting is Microsoft because no
matter what they say since they violate the law today daily in the most gross
manner possible, they certainly P-They violate by the way copyright licensing
as I pointed out.

Why are they pushing so hard for Palladium?

Because without Palladium, we're going to break through.

You'll be able to really control your own machine and a free operating system
on it and they don't want that.

Let them die.

That's progress.

...




p260

...

MR. HERNAN:

I just wanted to be on record a little bit regarding Palladium.

Palladium and its related technology, TCPA and now TCG, is a useful and
powerful security technology that has legitimate uses.

It is a tool like lots of security tools.

With all due respects, Mr. Sulzberger, I don't think the scenarios of

p261

Microsoft trying to take over the world through Palladium and TCG are really
within the scope of this hearing.

It is a useful and powerful technology that can be used for good and bad
purposes.



MR. SULZBERGER:

May I briefly respond?



MR. CARSON:

Is it pertinent to what this hearing is about?



MR. SULZBERGER:

Yes.

I said I would demonstrate it and I will demonstrate right now.

What does Palladium do?

It enables a person who is not the owner of the machine to run a Trojan which
is heavily protected by effective technological measures as envisioned under
the DMCA and makes it illegal for you to try and look and see what they are
doing with your machine in your living room.

It is directly connected.



Now I wish to address Shawn Hernan.

Of course I agree absolutely that there are some uses and it's conceivable I
could want to allow you, sir, to run a shrouded Trojan operating system on my
machine.

It's conceivable.

Let's be realistic.

The same arguments would show that the first ten amendments of the United
States Constitution are useless.

This power should not be granted.

It

p262

will be effectively granted to a small group of monopolists, convicted
monopolists in one case, oligopolists and cartels who have displayed the most
brutal contempt for the rule of law and to think that now they will evince the
most delicate concern for free markets when by changing one bit of the mask
they would none but keys assigned by Microsoft to be placed in the TCPA is a
fantasy so fantastic that I do not believe that anyone, Mr. Hernan, if he would
consider the history would actually defend this.

Thanks.

That's all I'm going to say.

...



Neal R. Gross
Court Reporters and Transcribers
1323 Rhode Island Ave NW
202-234-4433
Washington DC 20005-3701
http://www.nealrgross.com
http://www.copyright.gov/1201/2003/hearings/transcript-may2.pdf
http://www.copyright.gov/1201/2003/hearings/schedule.html
http://www.copyright.gov/1201/