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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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May 21, 2004

Liberals, Conservatives Favor Different Kinds of Censorship

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Posted by Ernest Miller has published an AP wirestory on a recent Congressional hearing relating to the ClearPlay lawsuit (Lawmaker vows to protect tech that lets parents filter DVDs). ClearPlay is one of the companies being sued by Hollywood for providing technologies that will allow people to use alternate playback trees for their DVDs in order to skip the naughty bits. You buy a regular DVD at the local Wal-Mart, take it home, put it in a special DVD play and ... no more Titanic with nudity, for example (though the DVD is unchanged ... just the playback has been changed). Hollywood doesn't like this and wants to sue the companies out of existence under various copyright and trademark theories. See, EFF's case archives: EFF: Huntsman v. Soderbergh; and LawMeme's coverage, starting here: The Hypocrisies of the Writers Guild of America, West.

The hearings were held by arch-conservative Rep. Lamar Smith (R - Tx), who chairs the Subcommittee on Courts, the Internet and Intellectual Property of the Judiciary Committee. Rep. Smith is normally a proponent of strong copyright laws, but finds the expansive view of copyright conflicts with his censorious desires here (Smith's Opening Statement): "Just as the author of a book should not be able to force me to read that book in any particular manner or order, a studio or director should also not be able to use the law to force me or my children to watch a movie in a particular way."

He almost sounds like a Copyfighter (even stopped clocks are right twice a day). Read more about the opposition...

On the opposing side? Liberals, such as Rep. Howard Berman (D - Ca), who claims that (Berman's Statement): "I do not believe Congress should give companies the right to alter, distort, and mutilate creative works, or to sell otherwise-infringing products that do functionally the same thing." Well, actually, Congress has already given companies that right, at least according to some courts, generally justified under the limitations of first sale. I doubt anyone can stop me from buying books, ripping out a few pages and selling them - at least under copyright law. Why should it be illegal to sell someone a machine that will, figuratively, rip out the pages of the book in the privacy of their home?

More important, why should it be illegal to sell a device that will allow other people to annotate or provide marginalia for works? There is no interference in the sale of the original, underlying work. I guess Berman believes that creativity is only good for some people (Top Industries Donating to Berman).

What, exactly, is Berman afraid of?:

It would legalize the unauthorized software plug-ins that enable you to play the Tomb Raider computer game with a topless Lara Croft, and to put the faces of teachers and classmates on the heads of target monsters in certain “shooter” computer games. Would the legislation make it legal for someone with digital editing software to doctor a 30 year-old photograph of a Vietnam War rally so that it appears that John Kerry is standing next to Jane Fonda?

It would also allow people to put the face of Osama Bin Laden into a shooter, or create skins for the Sims that would allow sick people to have Bush and Kerry keep house together. The bit about the Vietnam War photograph is clueless. The issue isn't distributing deriative works, but distributing disparate elements that can easily be combined by the recipient.

The cluelessness continues:

It means that someone could sell an e-book reader that prevents reading the murder scene in an ebook version of Dostoevsky’s Crime and Punishment, but can’t sell the hard-copy book with the offending pages ripped out.

All of Dostoevsky's works are in the public domain. You can do whatever the heck you want with them, not to mention that you can sell copyrighted books with pages ripped out under the first sale doctrine.

Why would legislation protect technology that skips the violent scenes in a DVD version of Platoon, but not protect a service that cuts the same scenes from the VHS version? If both activities are copyright infringement today, why would legislation only immunize the digital infringement?

Because the consumer is actually applying the filter in their own home rather than the company making and distributing compiled derivative works?

Anyway, Berman is not the only opposition to this technology. There is also Marjorie Heins, founder of the Free Expression Policy Project, who sees this technology only as censorship (Testimony of Marjorie Heins [PDF]). In many ways, her comments were the most depressing, since she seems to show little recognition of the free speech of annotators being squelched. Why not speak in favor of free speech for annotators and writers of marginalia?

Comments (3) + TrackBacks (0) | Category: Laws and Regulations


1. cypherpunk on May 21, 2004 3:00 PM writes...

I appreciate the principled stand you are taking on this issue, in opposition to liberal groups that you might normally find yourself in agreement with. This issue seems to have ties to the European approach to copyright which was mentioned here recently in reference to Jerry Kang's talk. In Europe they emphasize the creative rights of an author to control his works even after they have passed into private hands. When a person creates something, his artistic vision is supposed to be kept intact and private parties should not be allowed to mutilate his creation.

I would prefer to see the issue decided on a case by case basis by mutual agreement (i.e. contract) rather than by a global social policy. But if we do need a policy, on economic grounds it is more efficient to put legal authority in the hands of the person who has physical control over the creation, the purchaser. For the government to intervene and try to keep everyone from altering creative works they have purchased will be inefficient and expensive, and easily leads to ludicrous and unenforceable situations. Allowing end users to manipulate purchased artworks as they see fit will be much more efficient.

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2. Seth Finkelstein on May 21, 2004 6:46 PM writes...

Oh, the politics here ...

It's really all about derivative works.

The problem is that we might end up with derivative works only allowed for censorship-like purposes!

Think I'm wrong? Look at the little-known DMCA 1201(h) provision, *FOR* censorware companies:

* (h) Exceptions Regarding Minors. - In applying subsection (a) to a
component or part, the court may consider the necessity for its
intended and actual incorporation in a technology, product, service, or
device, which -
o (1) does not itself violate the provisions of this title; and
(2) has the sole purpose to prevent the access of minors to
material on the Internet.

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3. Aaron Swartz on June 24, 2004 9:35 PM writes...

The FEPP thing is ironic because their mission includes fighting "[t]hreats to free expression and access to ideas that are caused by restrictive copyright laws".

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