February 28, 2003
DRM Conference, Day 1

Two tutorials, with Drew Dean, SRI; Barb Fox, Microsoft Corp.; Brian LaMacchia, Microsoft Corp, about DRM technology, and one with Pam Samuelson on the legal and policy landscape regarding DRM.

It was a lot and will take a bit to post here, but late last night, I did finish the question (below under "more") that was the most interesting....

Q… Hi, I'm Alex Alban from RealNetworks, and I want to thank you for convening this conference and generating so much interest in this topic. I do want to point out for the people in the audience that when we brought the Streambox case, (lots of laughter) it wasn't because we had cooked up an assault on fair use, and were looking for vehicle for that, as much as this company had created a spoofed RealPlayer, with its own advertising in advertising in it, and its own search in it, and was diverting traffic and confusing people. As in any case, there were many other things going on. We don't make an apology for using the DMCA to enforce our rights. But I do want to ask you, to this end, because we are interested in the issue of fair use, its hard for some of us to see how you craft an exception that would allow distribution of a circumvention tool, based on "intent." Because, you can always say the purpose of the individual was to allow something that was totally legitimate, a backup copy, or whatever. Is that a workable solution, or do you have some other ideas about how you would have a workable fair use exemption in this?

A… Pam Samuelson: That is a great question to pose on March 1st. I tried to make clear at the outset of my presentation that I am not here today to say sort of say what I think on this subject; I'm here today, my tutorial was to try to provide you with a baseline.

Alex: But you did such a great job (lots of laughter) of raising the issues, if you had some notions, I think people would be interested…

Pam: I think it is a question that is worth debating, and one of the things that I find disappointing is that when the DMCA legislation was in process, that there wasn't an effort to have a calm conversation about that and see whether or not it could be tailored in a way that would limit, or allow the anti-circumvention rules the do the things that the anti-circumvention rules legitimately should be able to do and leave some room for fair use. It seems to me, that conversation didn't happen the last time, and I think one of the things the Lofgren and Boucher Bills are trying to do is open that conversation so we can see whether or not there is that possibility. I am not at all defending 321, right now so do not interpret anything I say, but the defense they are raising in the lawsuit they are going through with MGM, is that our software allows people to make backup copies, and you have to be the owner in order to use our stuff, and we do these things to protect the legitimate interests of the content owners, and so we're not doing… and so, I think they would argue that is the kind of software they should be allowed to market, but I don't know enough about the technology, all I know is the allegation, but it would be good to try to have that conversation, we didn't have that opportunity to have that before, but it seems that it would be good, and I hope you put that question to March 1, okay?

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