April 2004

An Invitation from Public Knowledge:

Public Knowledge is having a fundraiser/party to celebrate the growing number of Silicon Valley companies that are beginning to understand the importance of getting involved in Washington DC tech policy. Decisions being made in Washington are effecting the regulatory climate for tech companies, and could have a big impact on the entire tech industry.

Wednesday, April 21st 7pm – 9pm
At the Frey-Norris Gallery, 456 Geary between Mason and Taylor, directions at http://www.freynorris.com/contact.html

$35 pre-registration at http://www.acteva.com/go/pk, $40 at the door. Your registration is a donation to Public Knowledge, and is tax-deductible to the extent allowed by law.

We’d like to thank and glorify the 21 tech companies that last month signed onto the FCC filing opposing the Broadcast Flag. It was a formidable beginning to what we hope will develop into an influential “tech side” in the policy debates. More and more companies are beginning to understand that FCC interference could hurt the tech industry, keep new markets from emerging, handicap Open Source development, slow innovation and increase the regulatory burden for tech companies.

We’d also like to raise awareness of the next FCC proceeding that will affect the tech industry. The FCC’s Cognitive and Software-Defined Radio rulemaking is extremely important–it could determine how spectrum is allocated in the future, what kinds of applications can run on wireless data networks, and what kinds of devices can use these networks. In the near future, Cognitive Radio will make it technically possible to use spectrum more efficiently; companies and products will be able to compete in a space that’s now the sole domain of incumbent operators. However, if we want to see the full potential of this technology, we need to keep the FCC from unduly regulating it.

Join your Silicon Valley capitalist comrades for the most fun you’ll ever have influencing FCC policy. Feel free to invite your friends, and broadcast this invitation widely.

The next big fight: WIPO broadcast flag treaty

While in New York, I went to the New Museum of Contemporary Art to see the John Waters’ exhibit. I love John Waters, particularly Pecker, which I think is one of the sweetest movies. This exhibit is displays collections of photos Waters took off his TV screen to create weird stills from quirky old movies and then arranged into a linear series or mini film strip.

Very few of the works had any real power or emotional twang to them. There were notable exceptions, like Twelve Assholes and a Dirty Foot, which was not to my taste, but had some oomph. But mostly, these were small, fuzzy and negligible.

This got me thinking about the “analog hole”. Copyright holders use digital rights management technologies to control whether and when you can copy or play movies and music. These DRMs can prevent copying even when the law would allow it for things like backing up and for fair use. The anti-circumvention provisions of the DMCA prevent the distribution of tools that would allow people to break DRMs for fair use purposes. We often argue that the DMCA is unconstitutional, or that there should be exceptions to the DMCA and other non-circumventing schemes to allow fair use. The retort is that DRMs and the DMCA don’t effect fair use at all because of the “analog hole”. You can plug your VCR in and make an analog copy. It won’t be good enough for pirating on the Internet, but its good enough for fair use. Problem solved.

John Waters’ latest shows one reason why that’s not good enough. The pictures have to be small, most no bigger than 5×8, because the quality of the image doesn’t let you make them bigger. The pictures are fuzzy. Sometimes he can use or play with the fuzziness as part of the art, but many times it just seems fuzzy. The poor quality of the image is a distraction from the images and arrangement selected. Waters has been swallowed by the analog hole.

When talking with Sprigman about this, he pointed out that this is a problem not only aesthetically, but with the definition of fair use itself. Fair use is explicitly about “criticism, comment, news reporting, teaching”. Its not about enabling contemporary art forms, letting the consumer be a creator or Rip, Mix, Burn. The Supreme Court finessed it in the Two Live Crew case, fitting hip hop cultural remixes into the concept of “parody”, or humorous criticism, to get the right result. But can we count on courts understanding and accepting popular subcultures enough of the time?

If the public is really going to reap the benefits of the digital revolution, if it’s going to mean something beyond more corporate music, faster, if its going to be about bringing the means of creative production into the hands of the average person and setting that inventive spark free, then fair use has to change. Otherwise we’ll all be trapped in the analog hole.

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