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The Engadget Interview: Wendy Seltzer of the Electronic Frontier Foundation

Peter Rojas
A few weeks ago we convinced Wendy Seltzer, an attorney with the Electronic Frontier Foundation and a fellow at the Berkman Center for Internet & Society at Harvard Law School, to take a few questions from readers regarding the INDUCE Act and other issues related to gadgets and the law. Well, in between then and now a little something funny happened: the INDUCE Act more or less  went away when the bill's chief sponsor, Senator Orrin Hatch, decided not to continue pushing it through. Regardless, Wendy's adjusted her answers accordingly, so here goes:

Not that I intend for anything I say to be used toward copyright infringement, but I figured it was safest to wait until the proposed INDUCE Act was dead.  Now that Congress is packing up to leave without having passed the bill, here are my responses to your questions.  Thanks! 

1) INDUCE looks like a clear contradiction to the 'Betamax' decision. If INDUCE is passed, does that setup a rollback of 'Betamax'?

While we're safe from INDUCE for this term, we'll likely see this zombie again and again, so it's important for technologists, technology fans, and everyone else to let their congresspeople know how harmful it would be.  The Betamax case (Sony v. Universal) said that Sony wasn't liable for the possible infringing uses of the Betamax VCR - more generally, makers of technology "capable of substantial non-infringing use" are not liable for their users' infringement.  INDUCE would replace that clear standard with a dangerous, murky, liability for "inducing" infringement.  Does the iPod's generous disk space "induce" infringing copying?  Does your new PC's CD burner?  Even where technology companies might ultimately not be held liable, the INDUCE standards make the fight much more expensive by making it nearly impossible to get a case dismissed before trial.  That means hundreds of thousands of dollars in legal fees to add into the cost of making a new product. 

2) Hasn't there been enough reasonable opposition (and evidence of its deleterious effects on research) to the DMCA to get that thing thrown out? If not (and it seems not), what do you think would have to be shown to demonstrate unequivocally that it is harmful, stifling legislation?

If anyone in Congress were listening, there's plenty of evidence of harm.  The problem is that Congress doesn't do regulatory impact statements to balance these demonstrated harms to education, innovation, and public discourse against the claimed benefits to the entertainment industry.  Rep. Rick Boucher has proposed some sensible changes with the DMCRA, but hasn't been able to gather many supporters.  If you're ready to take more politically focused action, check out the recently launched IPac.

3) If the SDNY opinion yesterday by Judge Baer in US v. Martignon is eventually upheld by the 2d Circuit Court of Appeals, what ramifications will this have on the DMCA?

Since anti-circumvention measures do not have a limited term, and since the DMCA is within the scope of the Copyright Clause of the Constitution, would an affirmation by the appellate level, by all intents and purposes invalidate the DMCA?

The Martignon decision, finding the federal anti-bootlegging statute unconstitutional because it granted copyright-like protection against live recordings for unlimited times, is an important re-affirmation that copyright is a limited exclusive right, meant to balance public and private interests.  In the DMCA fight, we've tried to call attention to the ways anticircumvention blocks access to public domain works whose copyrights have expired [link: EFF comments in Copyright Office rulemaking] - without success so far, but this decision might prompt courts to address those concerns.  Judge Baer also ruled that Congress can't use a broader part of the Constitution, the Commerce Clause, to circumvent the limitations of the Copyright Clause.  So if we can show that the DMCA's restrictions on speech aren't justified under copyright law, Congress can't make up other justifications. 

4) How do you balance the need to "get things done" in Washington with the more idealistic, "fall on your sword" crowd that probably makes up a large portion of your membership? Do you feel that staying ideologically consistent is more important than politically effective? I ask because I fear EFF and some of the other privacy groups are being co-opted by a more ideological bent crowd (kind of like the ACLU) which will render EFF less politically potent on Capitol Hill.

I worry because RIAA and the MPAA are far more concerned about "congressional access" and "incumbent preservation" (two huge buzzwords in DC) than groups like EFF and some of your more vocal supporters (who often go out on a limb and get somewhat [too] partisan in their political views). Sometimes I read stuff from supporters that is essentially snide political commentary or diatribes that, when read back to some of the Congressmen will get doors slammed in the face of EFF supporters. I'd hate to have the term "card carrying member of EFF" get equated with the negatives that "card carrying member of the ACLU" is greeted with on Capitol Hill (at least in some quarters).

I guess a short question is "how will EFF stay politically potent while staying true to their ideological beliefs in an increasingly partisan Washington?"

Not that short I guess...

The short answer is that EFF isn't a political organization.  As a 501(c)(3), we can't get involved with the money politicking that makes Washington run, but we've chosen that path in order to stay focused on the things we do well.  We're an impact litigation group - we look for problems (or they look for us) that can be addressed in the courts and through public education.  We work with allies in Washington, like Public Knowledge and the American Library Association, on big legislative fights like INDUCE. 

We focus on places where the courts can make a difference.  For example, there may be good laws that need to be enforced, as in Online Policy Group v. Diebold, where we established that those harmed by false copyright takedown demands can win damages and fees under section 512(f) of the DMCA.  There are places we can clarify the law, as in MGM v. Grokster, where our victory for P2P software companies Streamcast Networks and Grokster reiterated that the Betamax doctrine still holds.  And we can help strike down bad law, as Verizon did to the RIAA's DMCA subpoenas in RIAA v. Verizon, with amicus help from EFF and other public interest groups.

5) Is anybody working on bills to reform the definition of patentable subject matter? How do you think such a bill could be made politically viable?

At the moment, I'm not aware of efforts to change the statutory scope of patent law, but there are serious efforts to improve the way the patent system works within its existing scope.  EFF has focused its Patent-Busting project on bad software patents.  We're aiming to bust patents that should never have issued, but are being used to extort money from individuals and small businesses.  We're hoping not only to knock out these bad patents through re-examination (we've identified ten so far), but also prompt reform so that bad patents don't pass the first examination.

6) The recording and movie industries are relatively small compared to IT, Telecoms or consumer electronics. Obviously, they wield disproportionate political influence, but why is it that technology companies like Microsoft or Apple are falling over themselves devising ever more user-hostile DRM schemes to appease the content cartels?

That's a question we often ask the tech companies: Why are they letting a much smaller entertainment industry tell them how to run their businesses, especially when what Hollywood wants makes the customer experience worse?  Tech-cos are letting themselves be seduced by promises of entertainment content and giving Hollywood control of a noose that it keeps tightening with further restrictions.  In the INDUCE fight, at last, some of the technology companies recognized that what they do in Washington can be as important as what they do in engineering, and I hope they'll continue to push for the right to develop products to meet actual customer demand.

7) Pending Congressional legislation notwithstanding, has it ever been conclusively established in a court of law that P2P file-sharing is not fair use?

It's really hard to talk about "P2P file-sharing" in the aggregate - some of it is authorized, some of it is fair use, and some of it is infringing, depending on the particular circumstances.  Downloading songs to use snippets in a classroom presentation, to sample before purchase, or to save time ripping your own CDs, might be fair, while downloading to substitute for purchase would clearly not be.  Both the Napster and Grokster courts concluded that there was direct infringement by many of the programs' end-users, though the Grokster court held that the software makers were not secondarily liable for those infringements.

8) What has been the end result legally speaking of all those suits filed by the RIAA against file-sharers?

Turning off a lot of music fans.  The lawsuits haven't significantly cut the use of P2P filesharing, according to BigChampagne and other measures.  The record labels continue to file suits against "Doe" defendants, a few hundred at a time, but they haven't really changed people's behavior.  (We've been filing briefs in many of those cases urging the courts to give the Does a chance to object before their identities are revealed.  Since Verzion successfully challenged the use of DMCA subpoenas, the process has gotten much fairer for the defendants.) 

Until the music industry or a few big players move away from suing customers to meeting their demands, we're at a stalemate.  We've got a few ideas about how to meet those demands through collective licensing instead - offer fans a convenient way to pay a blanket license for the flexibility of filesharing.  We hope the industry will see this better way forward. 

9) Whatever happened to fair use for crying out loud! What can I do as a "normal" citizen to combat the erosion of my rights?

Fair use is only as good as we make it.  The copyright laws have gotten worse, but there are still places where we can assert rights to use excerpts in criticism, commentary, parody, scholarly research, etc.  Luckily, we've gotten a great new tool for fair use enforcement out of the OPG v. Diebold case: Section 512(f) of the DMCA lets you sue a copyright claimant for misuse of DMCA takedown notices.  Diebold claimed infringement when the posting of its email archive was fair use, and wound up paying damages and EFF's attorneys' fees.

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