[free-sklyarov] Seybold session yesterday

[Christopher R. Maden]

Mark Walter, one of the better editors for Seybold Reports, moderated a 
panel discussion about the DMCA at Seybold today.  Seybold is one of the 
largest publishing technology conferences and exhibitions in the 
world.  Also on stage were free-sklyarov's own Kurt Foss (Planet eBook) and 
Robin Gross (EFF), and two lawyers with media connections (Alan and 
Jim).  Dmitry, Alex Katalov, and Dmitry's attorney were in the audience.

Jim seemed to be on "our side"; he felt that the DMCA had one good feature, 
which is a mandatory blanket payment for streaming audio royalties, making 
such streaming broadcasts legal.

Alan was very much a supporter of the DMCA, but made many excellent 
points.  First, claims that Dmitry was just helping Adobe out by pointing 
out a weakness, and should have been hired instead of jailed are 
revisionist at best.  Dmitry was just doing his research, and when Elcom 
decided to sell the product, it was to offer benefits to consumers, 
according to their own press release.  No mention of publicizing flaws in 
the Adobe Acrobat eBook Reader was mentioned at the time.

Another excellent point he made was that fair use may not be relevant to 
the debate here.  If the *contract* for using a piece of intellectual 
property, like the licensing terms on an ebook, specify certain 
restrictions, then fair use doesn't come into play.  If customers don't 
want to abide by the terms of the contract, they should refuse to enter 
into it in the first place.

There are certainly problems with that argument; in particular, as Alex and 
Vladmir K. have pointed out here, the terms of use for many ebooks isn't 
known in advance; Dmitry's lawyer pointed this out at the session.  But 
that, itself, is something consumers can vote against by refusing to buy an 
ebook with unknown terms.  Dmitry's lawyer also pointed out that this is 
probably already happening - the ebook market has hardly boomed, and a lot 
of that may be due to the restrictions on most content's uses.  Notable 
exceptions include Baen, who give their books away unencrypted.

But I think that Alan raised some good points; I disagree with him about 
the impact and correctness of the DMCA, but his analysis was 
well-reasoned.  We should listen to him, and be careful not to make 
arguments that damage our own cause.  In particular, one gentleman claimed 
that the Constitution guarantees fair use and the "right" of teachers to 
make copies for students.  However, fair use as I understand it is a 
judicial creation to harmonize the First Amendment and copyright, which is 
far from a Constitutional guarantee, and the Kinko's case demonstrated 
clearly that teachers do *not* have a "right" to distribute copies of 
copyrighted material to their students.

Jim made one particularly good point: "attack the motive, not the 
mechanism."  Betamax failed largely because of its built-in copying 
protection, which caused the consumer market to mostly ignore it.  Movies 
are not widely pirated on VHS because it's easier to get a movie off of 
cable or just rent one for $3.  When movies are pirated, it's to get them 
onto video before ordinarily available or to get them into a market 
early.  This just further demonstrates Jim's point.

The floor was opened to questions early on, and it was a very vigorous, 
interesting, and at times quite entertaining session.  I was sorry not to 
see more of the regular SF faces there.

-crism
-- 
David Shapiro: You know what you doing.  Free Dmitry!  For great justice.
<URL: http://www.freesklyarov.org/ >
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