10/25. The Consumer Electronics Association (CEA),
Public Knowledge (PK),
Computer and Communications Industry Association
(CCIA), and Media Access Project (MAP) held a
news conference in Washington DC to announce the launch of a "Digital Freedom
Campaign", or DFC.
The speakers were Gary Shapiro (CEA), Gigi Sohn (PK), Ed Black (CCIA), Harold Feld
(MAP), and Don Goldberg (Corvis). Derek Slater of the Electronic Frontier Foundation (EFF)
spoke via telephone.
Shapiro, Sohn and Black all reiterated points that they have made many times in the
past. The MAP's participation is notable. It is an interest group that has previously
advocated policy goals, and filed lawsuits, related to the regulation of broadcast
All of these groups, except the EFF, are based in the Washington DC area. The audience
was comprised of Washington DC based technology and communications reporters, and
representatives of Washington DC based interest groups, trade groups, and think tanks.
Nevertheless, the speakers conveyed their assertion that they are launching a broad
based public campaign regarding the rights of consumers, creators and innovators to use
copyrighted digital works.
The speakers announced and demonstrated a website. This web site features video of
three young people complaining about content companies' efforts to restriction innovators,
creators and consumers, who are then bound, gagged, and paper bagged.
In response to a question from the Hollywood Reporter, Goldberg stated that
the three persons are hired actors.
DFC Bill of Rights. The speakers announced and released a short document titled
"The Digital Freedom
Bill of Sights and Sounds". TLJ asked Shapiro after the event what was said at
this event that he has not said many times before. He said that the speakers announced
the launch of a new campaign, and that they released its bill of rights.
The document contains an preamble, and then recites five rights, which are as
" 1. All Americans have the right to become artists, innovators, and creators,
and to use digital technology to do so;
2. All Americans have the right to develop and use digital technology without
3. All Americans should be confident and secure that they will not face legal
threats or lawsuits because they are lawfully enjoying the benefits of digital
technology in their homes, cars and on the go;
4. Congress must respect the spirit of the Constitution and resist imposing
government mandates that limit the use of digital technology; and,
5. Congress must recognize that creativity and innovation should be nurtured,
and not restricted for the benefit of big record labels and movie studios."
DFC Agenda. Shapiro stated that "new technologies, and consumers' right
to use these technologies, and their fair use rights are under attack by some very big
companies and associations. You are all no doubt familiar with all the lawsuits,
there have been some many of them, XM Radio, Sima, go back to Replay, and many
others, and all of the Google".
He also cited "the various bills that
the labels have tried to ram through Congress, to essentially ban noncommercial
uses of content, such as simple recording off of the radio. And who among us has
not seen that MPAA warning label, that is actually FBI, with the support of the
United States government, before you watch any movie, which says that you cannot
do anything that is not authorized with that movie. Well, we think it is time to
change this. We think that it is time to fight back."
In the XM Satellite Radio case the plaintiff record companies assert that XM's services
are not like traditional terrestrial broadcast radio. The complaint alleges that XM
provides a "digital download subscription service that obliterates the careful limits
Congress imposed in Section 114". This case is Atlantic Recording Corporation, et
al. v. XM Satellite Radio, Inc., U.S. District Court for the Southern District of New
York. See also,
brief [25 pages in PDF] of the CEA and other groups, and stories titled "Summary
of the RIAA Lawsuit Against XM Satellite Radio", "Summary of the Sen. Feinstein's
Perform Act", and "Music Licensing, Satellite Radio, and Perform Act Debated"
in TLJ Daily E-Mail
Alert No. 1,384, June 5, 2006.
The Sima case is Macrovision Corporation v. Sima Products Corporation, U.S.
Court of Appeals for the Federal Circuit, App. Ct. No. 2006-1441, an appeal from the U.S.
District Court for the Southern District of New York, D.C. No. 05-CV-5587, a case regarding
the anti-circumvention provisions of the DMCA pending before the Court of Appeals. See,
brief [24 pages in PDF] of the CEA and other groups.
The Replay TV case was MGM, et al. v. ReplayTV, Inc., U.S. District Court for
the Central District of California, D.C. No. 01-09801, a copyright infringement case
involving claims of inducement of infringement.
There are many Google suits. There is a lawsuit pending in the District Court
in which the plaintiff book publishers allege that the Google Print for Libraries project,
which involves copying of books under copyright, violates copyright law. This
case is McGraw Hill Companies, Inc., Pearson Education, Inc., Penguin Group
(USA) Inc., Simon & Schuster, Inc. and John Wiley & Sons, Inc. v. Google Inc.,
U.S. District Court for the Southern District of New York, D.C. No. 05-CV-8881.
There is a separate by similar suit brought by the Authors Guild in the same
story titled "Google, Publishers and Authors Debate Google's Print for
Libraries Program" in
TLJ Daily E-Mail
Alert No. 1,239, October 25, 2005.
On the other hand, Shapiro may have been referring to the Google Image Search
copying of copyrighted pictures of Perfect 10. This case is Perfect 10 v.
Google, Inc., et al., U.S. District Court for the Central District of
California, D.C. No. CV 04-9484 AHM (SHx). See also,
titled "District Court Rules in Perfect 10 v. Google" in
TLJ Daily E-Mail
Alert No. 1,319, February 28, 2006.
Google is not at this time a member of the Digital Freedom Coalition. TLJ spoke with
Michael Petricone, SVP for Government Affairs at the CEA. He said that the DFC is about
more than just movies and music. He said that it is about the "right to receive and
use and access information".
The DFC also issued a release that criticizes several pending bills. These include
the "Copyright Modernization Act of 2006",
and HR 5361,
the "PERFORM Act", and
the "Audio Broadcast Flag Licensing Act of 2006".
The DFC release states that HR 4861 "gives the FCC authority to impose
technical conditions on both satellite and HD radio potentially prohibiting home
networking and noncommercial recording".
It also states that the PERFORM Act "severely limits the ability of XM and Sirius
subscribers to record programming for later listening, even though the recordings are
locked to the radio and cannot be uploaded to the internet or burned to CD". See
also, stories titled "Summary of the RIAA Lawsuit Against XM Satellite Radio",
"Summary of the Sen. Feinstein's Perform Act", and "Music
Licensing, Satellite Radio, and Perform Act Debated" in
TLJ Daily E-Mail
Alert No. 1,384, June 5, 2006.
HR 6052 is a large composite bill that includes, among other things, the
"Section 115 Reform Act of 2006", or SIRA. See,
titled "House Judiciary Committee Puts Off Consideration of Copyright
Legislation Until Next Year" in TLJ Daily E-Mail Alert No. 1,457, September 27,
2006, and stories titled "CIIP May Mark Up SIRA" in
TLJ Daily E-Mail
Alert No. 1,386, June 7, 2006, and "CIIP Subcommittee Approves Section 115
Reform Act" in TLJ
Daily E-Mail Alert No. 1,388, June 9, 2006.
The release states that HR 6052 "requires licensing of all incidental
network, cache and buffer copies, then denies the license to services that
enable noncommercial recording".
HR 6052 also includes the latest House version of the orphan works bill. Gigi
Sohn (PK) spoke favorably about this part of the bill at the DFC event.
Sohn, the second speaker at the event, stated that "big content companies have
launched a sustained assault on the freedom of consumers to legally enjoy, create and
distribute music and video, and on the freedom of manufacturers to innovate in response
to consumer demands. These powerful companies have worked non-stop through the Congress,
the Federal Communications Commission, and the Copyright Office, to achieve their
She added that "we are frankly skeptical that combating theft is the true
goals of these industries. We sometimes think that it is more about controlling
devices than it is about stopping illegal activity."
She continued that "the new tools are the U.S. Supreme Court, and now the
District Court's new decision, in MGM v. Grokster case, which gives them more
power, lawsuits against infringers, and the passage of the Family Entertainment
Copyright Act, in addition to the already strict penalties of the copyright law."
On June 27, 2005, the Supreme Court
issued its unanimous
opinion [55 pages in PDF] in MGM v. Grokster, reversing the judgment
of the U.S. Court of Appeals (9thCir)
regarding vicarious copyright infringement by the distributors of peer to peer
The Supreme Court held that "one who distributes a device with the object of
promoting its use to infringe copyright, as shown by clear expression or other
affirmative steps taken to foster infringement, is liable for the resulting acts
of infringement by third parties."
Rent Seeking and IP Regimes. Sohn did not elaborate upon her assertion that
the content companies' goal is "controlling
devices". She did not offer an explanation of the economic incentive of content
companies for "controlling devices".
There is an argument, which neither Sohn, nor any of the other speakers at
this event advanced, that content companies, who hold copyrights on works of
authorship, are seeking to develop and use copyright law and procedure in a
manner that would enable them to capture some of the monopoly rents that device
makers hope to obtain through their patented consumer devices.
For example, the argument goes, through threats of litigation under the DMCA, or for
inducement of infringement, and agreements not to sue, content owners may be able to
license device technologies, in a manner that bears attributes of patent licensing.
The related but opposing argument is that device and software makers
seek to weaken copyright protection in order to decrease the monopoly rents on
copyrighted works collected by the copyright holders, and thereby enable device
makers to increase the revenues that they derive from sale of their devices.
Membership and Organization of the DFC. The speakers did not announce details
about the organization, management or financing of the DFC. However, Shapiro stated that
the CEA is providing initial financing.
The speakers announced, and distributed releases that list, the groups that are members
of the DFC. These groups are the CEA, PK, CCIA, MAP, EFF,
Media, New America Foundation,
National Video Resources, and
None of the big Washington DC groups with the word "consumer" in their title,
such as the Consumers Union, Consumer Federation of America, is now a member of the DFC.
None of the major groups representing authors and individual creators is a member of
the DFC. For example, neither the Authors Guild
(AG), Recording Artists Coalition
(RAC), Songwriters Guild of America (SGA),
Professional Photographers of America (PPA), nor the
Illustrators' Partnership of America
(IPA) are members.
The speakers at the DFC event asserted that they represent the interests of creators
and consumers. Audio and video content companies often make the same claim. Perhaps it
is the case that neither the content companies, nor the CEA and its partners in the DFC,
represent consumers or creators. However, both the content industries and the CEA are far
more effectively organized and represented in Washington DC than are either consumers
Red Lion and Copyright. Harold Feld (MAP), the third speaker at the event,
argued for a First Amendment free speech right of consumers in the context of digital
media. He also praised the Supreme Court's
opinion in Red Lion v. FCC, 395 U.S. 367 (1969), both during the event, and
afterwards in conversation with TLJ.
He said during the event that "what we are seeing here is a flowering of
the promise that was first spoken in the Supreme Court's Red Lion case, of the
public's freedom and ability to speak and hear information from the diversity of
sources in the electronic media. The technologies that are under assault today
make that more than a promise. They make it a reality."
In 1964, Red Lion Broadcasting Company, which operated a radio station,
broadcast a show titled "Christian Crusade", starring the
James Hargis, a once famous crusader against "godless communism". In one
program, the Hargis referenced a book by Fred Cook. Cook took exception, and demanded
that Red Lion broadcast his viewpoints. Red Lion refused. The FCC ordered Red Lion to
put Cook on the air. Red Lion went to court, but lost. Ultimately, the Supreme Court
affirmed the FCC's power to compel broadcasters to carry speech. It was called the
The Supreme Court ruled that the free speech protections that apply to printers, pulpits,
and pedestrians do not apply to broadcasters. It wrote that "differences in the
characteristics of new media justify differences in the First Amendment standards applied
to them." The Court rationalized its ruling by stating that "Because of the
scarcity of radio frequencies, the Government is permitted to put restraints on licensees
in favor of others whose views should be expressed on this unique medium." It added
that "It is the right of the viewers and listeners, not the right of the broadcasters,
which is paramount." And, it is the function of the FCC to determine what speech
viewers and listeners have a right to hear.
This case, which is much criticized today, pertains to spectrum and
broadcasting. It has not heretofore been central to the
debates over digital copyrights.
However, the Supreme Court also transformed a right understood to protect one
group (speakers) into a governmental power to limit the right of that group
under the rubric of protecting another group (viewers and listeners). Perhaps
Feld's and the Digital Freedom Campaign's argument is that there is an analogy
between free speech rights of broadcasters and copyrights of content owners. That is, perhaps the DFC argues that both of their rights should be
reconstrued as protections of the users of their products.
The argument may be that just as Red Lion concluded that the free speech
clause can actually limit free speech of broadcasters, so Red Lion, by analogy
should also limit the copyrights of content companies.
The Supreme Court's based its conclusion on the now much mocked
rationale of spectrum scarcity. This spectrum argument is not relevant to the DFC's
copyright issues. Feld did not advance a substitute rationale.
Gary Shapiro (CEA) did not mention Red Lion. Instead, he praised
the Supreme Court's
opinion in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S.
417 (1984), which is also known as the Betamax case.
TLJ spoke with Michael Petricone, SVP for Government
Affairs at the CEA. He said that he is not familiar with the Red Lion case, but
that "the First Amendment includes a right to receive information", and this is
an important argument of the DFC.
Reaction. Patrick Ross
of the Progress and Freedom
Foundation (PFF) wrote in a short
paper titled "Recognizing the Vibrant Market for Digital Content" that
"consumers win if they have access to a choice both of
devices and content, and the best way to guarantee continued content choice is
ensuring artists have the ability, in a free market, to negotiate use of their
He argued that "We clearly have a healthy, functioning licensing market for
music". He continued that while the members of the DFC "are aware of the
existing market for rights, they just don't wish to participate in it; they wish to
create methods to bypass it. How can such an argument be justified? A common method seems
to be to attempt to identify victims of the market. Overlooking the concerns of the
original creators of content, it is argued that the secondary creators -- the ones down
the value chain who have chosen to put themselves in the delicate position of creating
works that depend on someone else’s original work -- are occasionally being denied the
ability to perform their work if they can't reach an agreement on their terms. We are
told culture is lessened as a result."
Ross concluded that "Artists
are not threatened by copyright; they are empowered by it. Artists wishing to
make derivative works are not collectively prevented from doing so; a vibrant
market exists to facilitate that, and there is almost always substitutable
content for those rare occasions where terms can't be reached. Policymakers must
recognize that regardless of the self-interest of any given party in the
copyright debate, we want artists to maintain their copyrights in the digital
age. If artists' rights are preserved, there will be a continuing stream of new
content we can legally enjoy in new and unprecedented ways."
Also, a collection of music industry groups released a statement addressed "Dear
CEA" on October 25. It is signed by the Recording
Industry Association of America (RIAA), National Music Publishers Association (NMPA),
The Harry Fox Agency, Recording Artists Coalition, Songwriters Guild of America, and
It states that "demagoguery does not advance the
conversation or inform the public. Nor does a cavalier dismissal of the rights
of the people who create music and bring it to the public."
They wrote that "Our position is basic: artists,
songwriters, music publishers, musicians and record labels deserve to be paid
when our music is downloaded and enjoyed by fans."
"This debate needs to be elevated and high-minded", that
asserted. "We offered a truce and dialogue a month ago, and your response,
unfortunately, has been to ratchet up the rhetoric."
Caroline Joiner, Executive Director of the
U.S. Chamber of Commerce's
intellectual property (IP) initiative, wrote in a release
that "The coalition led by the Consumers Electronics Association is pursuing a
self-defeating strategy. Demolishing the rights of creative artists will hurt
consumers and technology providers, not help them. Musicians, artists,
filmmakers, and others won't produce rich, diverse content if they don't believe
their creations will be adequately protected from IP theft and other unfair,
illegal uses. Without content, the market for technology designed to deliver it
will dry up quickly."
She added that "The U.S. Chamber -- whose membership includes both content
creators and technology providers -- is pursuing a policy that strikes the right balance
between the need for the protection of IP and the fair, legal use of content. The
Chamber is committed to protecting the technological and creative innovations
that drive our economic growth and ensuring that these innovations are protected
here and around the globe. We are committed to fight any effort that diminishes
the rights granted to artists and innovators under U.S. copyright law. At the
same time, we support the fair use of content by individuals as long as it is
reasonable, equitable, and legal."