[DMCA-Activists] Digital Consumer's Kraus on Activism

[Seth Johnson]

Grant Gross interviews Joe Kraus of Digital Consumer.  
Kraus' thrust is interesting, despite the fact that it does 
tend to accommodate moves that cut into the natural rights 
of the public and that police the information sharing and 
distribution front.  The presence of this kind of motion 
does make the need for principled organizing and leadership 
particularly acute.  He's got a line on NY Fair Use, 
towards the bottom, that is thankfully somewhat modulated.  
LOL  -- Seth


Interesting passage:

What we are fighting is not necessarily to say, "Fair use is
12 copies, not one." That is a dangerous road to go down. At
the same time, we don't want the content industry to be able
to have that control. The mechanism of that control is
essentially the anti-circumvention provisions of the DMCA.
If they use the digital rights management systems to encode
or to take away your fair use rights, a citizen today has no
recourse. They cannot circumvent that copy protection, even
if the point of which is a legal act.


> http://newsforge.com/article.pl?sid=02/10/10/190246


DigitalConsumer's Kraus: You can impact digital rights
debate

By Grant Gross
Friday October 11, 2002


Admonitions for the Open Source community to get active in
politics have been numerous lately. The guys from the Linux
Show launched the American Open Technology Consortium in
April. Long-time Open Source advocate Bruce Perens started
his Sincere Choice initiative this summer.

In the past couple of weeks, I ran into two more people
suggesting Open Source fans should get involved in the U.S.
political process: Joe Kraus of DigitalConsumer.org and
software businessman Bob Crowley, who's been pouring over
the Bush administration's draft document for the "National
Strategy to Secure Cyberspace." 

Kraus' DigitalConsumer is about seven months old and already
claims 45,000 members, all of whom, as part of their
joining, have contacted their congressional representatives
about concerns over attempts to limit the public's fair use
rights. The group has sent more than 100,000 faxes to
Congress and has hired a full-time lobbying firm in D.C.

The group's main goal is to get a fair use bill of rights
passed into law, guaranteeing such rights as "time-shifting"
content consumers have legally acquired -- such as using a
VCR or digital recording device like TiVO -- and
"space-shifting" legal content -- such copying a CD onto a
portable music player. Kraus' people are talking to several
members of Congress about introducing such a bill this fall.

The group is also fighting bills such as the Consumer
Broadband and Digital Television Promotion Act introduced by
Senator Ernest Hollings and the Tauzin digital television
draft bill. But don't expect Kraus to stand up for people
who trade music on services like Napster. Kraus says he does
recognize that there's some illegitimate ways to use digital
content.

We asked Kraus, a co-founder of Excite before the
DigitalConsumer project, about his new organization and its
next moves. He had some interesting, and maybe controversial
ideas, about how to fight the erosion of fair use.

NewsForge: How close are you to getting a fair use bill of
rights introduced? Who would introduce it for you?

Kraus: Well, it's not a good idea for me to tell you all of
the people we've been talking to. That only gives a list of
folks Hollywood goes and tries to flip back in the other
direction. I can say that there's been a broad interest. The
profile of fair use has been raised dramatically this past
year, and I think the fact that 45,000 DigitalConsumer
members have faxed their representative or their senator has
in no small part contributed to that, along with other
groups and the press in particular.

I think there is a great of interest, in both houses of
Congress and on both sides of the aisle, in making sure that
consumers' rights are protected. So I am cautiously
optimistic that we'll be able to get something introduced
this year. Obviously, there will be no action on it, there
will be no hearings on it, but the important part is that
there is a marker that is put down that basically says that
Hollywood's efforts to deny consumer rights will not go
unchecked.

NewsForge: So it's fair to say you've talked to several
members of Congress?

Kraus: Oh, definitely. We've spent time with literally
dozens and dozens of legislators, and there's a varying
degree of interest. We have to be honest the situation:
Hollywood spends a great deal of money. The stats are they
spent $37 million during the last election cycle and they
spent $23 million over the last 18 months. We're up against
a foe that spends a lot of money ... a group that has
hundreds of lobbyists and has a political track record over
the last 60 years of letting Congress know they're not going
away.

On the other side of the issue, unfortunately, you have
Silicon Valley and consumer groups, who historically have
not been well organized, especially on this issue, and who
just generally don't run as good a political machine. While
I have confidence that there is a good deal of interest, I
think we have a long road ahead of us to successfully get a
bill passed.

NewsForge: I think some other people calling themselves fair
use advocates would say that if you share a copy of your CD
with one friend or 12 friends, what's the difference?

Kraus: What Hollywood wants is an environment where it can
control the definition of what is fair use and what isn't
fair use. If it can control what is fair use and what isn't
fair use, it gains control over an ability to charge
consumers for what used to be free. If today you have fair
use rights to take a CD and copy it to your Walkman, and
tomorrow the content industry has control over what is and
isn't fair use, they can say, "No, that's not fair use, but
you can pay us another $2 and have the right to do that."

My argument is what is and isn't fair use has for the last
150 years been in the hands of the courts. So to respond
directly to your question, "what's the difference?" The
answer is I am not actually qualified to answer that
question. I don't want to be in the position of answering,
"What is the definition of fair use? Is it one copy or 12
copies?" We've had a disinterested, non-economically
motivated, independent third party in the courts over the
past 150 years whose job it is to decide issues like that.

What we are fighting is not necessarily to say, "Fair use is
12 copies, not one." That is a dangerous road to go down. At
the same time, we don't want the content industry to be able
to have that control. The mechanism of that control is
essentially the anti-circumvention provisions of the DMCA.
If they use the digital rights management systems to encode
or to take away your fair use rights, a citizen today has no
recourse. They cannot circumvent that copy protection, even
if the point of which is a legal act.

NewsForge: What's the point of a fair use bill of rights?

Kraus: At the heart of any fair use bill of rights, there
are three things that need to occur. The first: Legal
acquirers of a piece of content need to be able to
circumvent for the sake of a fair use. If a court rules what
they did was not a fair use, they are liable for
infringement, but they need to be able to circumvent for the
sake of a fair use so the courts can continue to consider if
the act was fair use.

Second is, we all that a consumer that has the right to
circumvent can't -- or for the most part can't, I know that
your readers are different -- write their own software to do
it. What you need to do is free device manufacturers up to
create devices which allow consumers to make a fair use,
even if that fair use requires a circumvention.

Number three is, I think you need to enumerate several
common personal uses that the content industry is trying to
roll back. The first of which is time-shifting, then you
need to have space-shifting. You need need to be able to
encode and make backup copies. You need to be able
format-shift -- why should I have to listen to something in
one format when I want to play it on another platform?
Finally, you need to be able to watch content in the order
and manner that you see fit.

NewsForge: So why did you take up this cause?

Kraus: I got into this for two reasons. One is consumer fair
use rights are literally being taken away day by day.
Congress continues to give more and more rights to copyright
holders and deny their constituents a lot of rights they've
historically had.

The second is, from a technology background, I think we are
at risk of killing the goose that laid the golden egg. By
overly restricting and compressing fair use, you essentially
give back to the copyright holder the monopoly rights over
any innovation that uses their content. Fair use is at the
heart of a tremendous number of consumer innovations, from
the Xerox machine to the VCR to the MP3 player to the
Walkman to the TiVo and replay devices. None of those
inventions were created by media companies. They were
created by creative minds thinking of unanticipated uses of
content outside of the domain of the content creator. If
fair use were not to exist or to be limited, you would
essentially be allowing only those innovations which the
content creator approved or invented themselves. I think
that's a dangerous world.

NewsForge: What can consumers do? Other than join groups
like yours and write Congress, are their other things that
people who care about these issues should be doing?

Kraus: I think there are several. The first is, Congress
does listen. Let's say you're a representative. There's
600,000 people in your district, and half of them don't
vote, and then only half of them are in your party. So
you're down to 150,000 people. If a Congressional office
receives 20 faxes on an issue, that's a big issue. So when
you actually run the numbers, grassroots support by
contacting and faxing, whether it's from DigitalConsumer or
somebody else, your efforts do make a difference as small as
they may seem.

I can attest to that from the fact that when I testified in
front of the Senate Judiciary Committee in March of this
year, nobody mentioned fair use. Six weeks later, when I
testified at the House Energy and Commerce Committee
hearing, and we had sent somewhere on the order of 30,000
faxes in those six weeks, everybody mentioned fair use. Now
it's lip service that this point, but you can see that in
just six weeks, you can help raise the awareness that you're
not going to go down quietly if your fair use rights are
taken away.

Two is, use your power in the marketplace. As devices come
out that essentially restrict your rights, or as media comes
out that restricts your rights, don't buy it. It's again
tough to feel you're being effective because you're just one
person, but if enough people do it, it ends up making a
difference in the long term.

Third is, I would say that you've got to look at yourself in
the mirror and say, "Am I contributing to the problem of
infringement or not?" The content industry claims it is
trying to put these laws out there for the sake of
preventing piracy. The actual substance of the laws don't
work to prevent piracy, they work to foster greater control,
and have, in my opinion, little effect on piracy. But the
truth is that a lot of people are stealing a lot of music
and a lot of movies. You've got to get active, but at the
same time, you've got to consider that your actions cut both
ways.

NewsForge: Some would argue that the "piracy" happens
because the music industry has failed to provide a good
outlet for downloading music online.

Kraus: I completely agree that the the content industry has
in many ways made its own bed here. My personal solution to
piracy is enforcing existing laws, we don't need new laws to
prevent piracy. Second is, create viable legal alternatives
as opposed to the crippled efforts that have been released
so far. I understand the reaction, but at the same time, at
DigitalConsumer as an organization we don't condone piracy
in any way. I think the content industry is using piracy as
an excuse to pass Draconian laws that gives them power well
beyond the ability to stop piracy. I understand the argument
that says there's no viable legal alternatives. I agree
wholeheartedly, but people should know that the more they
end up stealing, the more they end up hurting their own
cause.

NewsForge: Some people have criticized groups like New
Yorkers for Fair Use for their tactics -- such as the
"interruptions" at the July Department of Commerce DRM
meeting. What do you think of those kinds of tactics?

Kraus: Well, I think that its a mixed bag. I'm thrilled that
they are organized and active. That's great news. Their
tactics don't help folks in Washington take them seriously,
but they do show that there is passion behind this issue. In
the end, what makes democracy great is that you have groups
organizing and speaking in all sorts of ways -- from the
disruptive and loud to the persistent and quiet. The
downside can be that the other side (Hollywood) uses those
types of disruptions to characterize the entire debate
(unfairly, of course).

NewsForge: What's next for Digital Consumer besides pushing
for a consumer fair use bill?

Kraus: Well, there's not much more than that. Three things
in total:

1. Pass a fair-use bill of rights that ensures that consumer
rights are protected no matter what Hollywood does in the
way of trying to remove them. This is our #1 goal.
Full-time. Every day.

2. To make that happen, we need to continue to build our
grassroots organization. We would like to get to 100,000
members and beyond. We know that the overwhelming majority
of consumers do not want to lose their fair use rights and
the flexibility that those rights bring. We need to continue
to reach out and help people understand that through
grassroots participation (i.e. contacting your members of
Congress persistently), we can defeat Hollywood's efforts to
remove consumer rights.

3. Help to defeat legislation that remove digital consumer
rights such as the Hollings Bill, Biden Bill, Berman Bill.
in addition, we work to make sure that upcoming bills that
have yet to be introduced support fair use.

NewsForge: There were a couple of bills introduced in the
House last week -- by Reps. Boucher and Lofgren -- trying to
restrict the DMCA. What do you think of those bills?

Kraus: I think that both bills are good moves away from the
status quo and that they represent the beginning of what I
believe to be a growing backlash against Hollywood's
overreaching.