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New England Chapter
ASIS

The Future of Fair Use : Our Speakers

The Future of Fair Use
Massachusetts Institute of Technology, Cambridge, MA
Tuesday, December 11, 2001

Contents


Walter McDonough, Esq.

Boston Bar Association, Intellectual Property Steering Committee and General Counsel, Future of Music Coalition

Walter F. McDonough is the General Counsel and one of the four founders of the Future of Music Coalition (http://futureofmusic.org) in Washington, D.C. The FMC is a non-profit research institute that examines the law, economics and technology of music from the perspective of musicians, independent record labels, academics and music educators and librarians. Among his duties at the FMC, Mr. McDonough coordinates the legal and business research efforts examining inter alia, the collection and allocation of digital royalties in the United States, music royalty systems throughout the world, and changing business models for traditional record labels and music publishers as well as new media companies.

In his other life, Mr. McDonough is an entertainment, Internet, intellectual property attorney in Boston. He is a member of the Boston Bar Association's Intellectual Property Steering Committee, the Co-Chair of the BBA Arts, Entertainment and Sports and Entertainment Law Committee and an adjunct faculty member of Massachusetts Communications College where he teaches entertainment law.

Mr. McDonough was an associate at Codikow, Carroll Guido & Groffman in New York City, one of America's leading music law firms, where he worked on matters for, among others, Jay-Z, Roc-A-Fella Records, Rocket from the Crypt, Jawbreaker, Tricky, Mike Watt, Blondie and Sinead O'Connor. He had primary responsibility in the copyright clearances surrounding the Grammy Award winning "Hard Knock Life" by Jay-Z which opened new frontiers in hip hop by "sampling" a composition from the Broadway play "Annie."

A former assistant Massachusetts Attorney General, Mr. McDonough worked on the deregulation of the telecommunication and energy industries in New England. He was a law clerk for the Honorable Edward F. Harrington of the United States Court for the District of Massachusetts. He is admitted to practice in Massachusetts and New York. Contact Walter F. McDonough at: walter@futureofmusic.org.

Abstract: Since the passage of the Digital Millennium Copyright Act (DMCA), there has been rising tension between academics and librarians, on the one hand, and the entertainment industry and copyright holders, on the other. When the Recording Industry Association of America (RIAA) threatened to sue Princeton Professor Edward Felten, may observers expressed concern that the DMCA could be used to stifle legitimate academic research. At the same time, however, the economic viability of the entertainment business itself is being tested. Recent statistics report that the U.S. recording industry may be experiencing its worst year ever with a dramatic decline in sales and massive layoffs and industry consolidation becoming the rule of the day. What has gone wrong and how did we get here? Is the recording industry using its power to lobby for copyright legislation in order to protect a failing business model or has the march of technological innovation overwhelmed the very nature of entertainment as we know it? More important, is there an underlying relationship between the decline of music industry profits and the threat to traditional "fair use" rights on university campuses and libraries?

Ivy Anderson

Harvard University Library, Coordinator for Digital Acquisitions

Ivy Anderson is the Coordinator for Digital Acquisitions (http://hul.harvard.edu/digacq/) at the Harvard University Library, where she manages the acquisition of network-based resources, negotiates electronic information licenses, and serves as a consultant to Harvard libraries on issues related to electronic publishing and the licensing of electronic information. Her professional activities include co-editing a column on Scholarly Communication for C&RL News and conducting workshops for ACRL and other organizations on the subject of licensing and related topics.

Prior to coming to Harvard in July of 1998, Ivy was Head of Information Systems at the Brandeis University Libraries, where she led that organization's Electronic Library Initiative. Earlier professional personae have included work as a music librarian and a stint at the Faxon Company. She holds an M.L.S. from Simmons College and a Bachelor of Arts in Music from New York University.

Abstract: The nature of digital communication and the increasing importance of intellectual capital as an engine of our economy have combined to raise the stakes for copyright and other forms of intellectual property control. In an environment in which the ability to regulate the use of intellectual artifacts is being strengthened through copyright term extension, technological enforcement measures, and the rise of information licensing (not to mention the looming spectre of database protection), fair use now stands more than ever as the guardian of the public good, protecting the flow of information in public and private discourse and the consequent flowering of knowledge and culture. As the institution chiefly responsible for preserving society's information commons, libraries can and must play an active role in defending the public information space which fair use seeks to sustain.

Professor Patricia Seed

Professor of History, Rice University and Visiting Scholar at the MIT Center for the Study of Diversity in Science, Technology, and Medicine in Science, Technology, and Society (STS)

Professor Seed holds an undergraduate degree in History/Philosophy from Fordham University and a Master of Arts in Latin American History/Anthropology from the University of Texas-Austin. Her Ph.D. is in Latin American History/Comparative Tropical History/Sociology from the University Wisconsin-Madison. Professor Seed teaches comparative history of European expansions, colonial and postcolonial discourse in Latin America at Rice University. She has written numerous books, including Ceremonies of Possession in Europe's Conquest of the New World, 1492-1640 (Cambridge, 1995); American Pentimento: The Invention of Indians and the Pursuit of Riches (forthcoming); To Love Honor and Obey in Colonial Mexico: Conflict over Marriage Choice, 1574-1821 (Stanford, 1988) which received the AHA Bolton Prize; and has designed a net-based course on The History of Navigation and Cartography. Professor Seed is currently working on a history of the world from its oceans, and the multicultural origins of modern science.

As professor of history at Rice, Patricia Seed has taught numerous history courses with significant electronic content including World History through Games (WorldHistoryGames.com), Spanish and Portuguese Overseas Expansion, and History of Navigation and Cartography, among others.

Abstract: The DMCA has dramatically reduced professors' ability to offer cutting edge educational content--or to share any multimedia content with students. Examples of how students are denied access to CD based information is provided.

Robin Gross, Esq.

Electronic Frontier Foundation, Staff Attorney for Fair Use & Intellectual Property and Director of Campaign for Audiovisual Free Expression (CAFÉ)

Robin D. Gross is an intellectual property attorney with the Electronic Frontier Foundation (http://www.eff.org), a leading cyber-liberties organization. She specializes in intellectual property policy and digital music legal issues and serves as Director of EFF's Campaign for Audiovisual Free Expression (CAFÉ) (http://www.eff.org/cafe/), which she launched in June of 1999 to explore the interaction of intellectual property and freedom of expression in a digital world. Ms. Gross frequently speaks and publishes on cyberspace legal issues such as digital copyright, the MP3 and DeCSS legal wars, and has testified before the U.S. Copyright Office on the dangers to freedom of expression presented by the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA).

The editors of the legal newspaper, Daily Journal, selected Ms. Gross as one of California's "Top Ten Most Influential Attorneys in 2001" for her work to advance digital free expression. In 2001 she developed the EFF's Open Audio License that allows musicians to release music and other recordings that expressly permit public sharing in exchange for artist credit.

Currently, Ms. Gross is defending the right of P2P software company Music City to distribute file-sharing software in a lawsuit filed by the music industry in the fall of 2001. In November 2001, EFF obtained a unanimous ruling from an appeals court in California over-turning a lower court's injunction and protecting the First Amendment rights of publishers who find information in the public domain from claims of trade secret misappropriation.

Through litigation, Ms. Gross is working on reforming the DMCA's anti-circumvention provisions, which chill freedom of expression and stifle scientific advancement. In June 2001, EFF filed a lawsuit against the recording industry on behalf of Princeton University scientist Edward Felten who studied the industry's digital music control technologies and was threatened by litigation under the DMCA when he first tried to publish his research at a scientific conference. In 2000, Ms. Gross led the EFF into its First Amendment defense of 2600 Magazine, a case in which Hollywood movie studios used the DMCA to ban a journalist from publishing or linking to DeCSS computer code, software developed to create a DVD player for the Linux operating system. She has been publicly critical of the arrest of Russian software programmer Dmitry Sklyarov who faces 25 years in prison under the DMCA for writing software that allows people to exercise their fair use rights with Ebooks.

A 1998 graduate of Santa Clara University's High Technology Law Program, Ms. Gross is licensed to practice law in California. During law school she co-founded Virtual Recordings (http://www.virtualrecordings.com) an electronic music Web site with her musician husband. A Michigan native, she graduated from Michigan State University's James Madison College in 1995 with degrees in political philosophy and international relations. She can be reached at robin@eff.org.

Abstract: DMCA and the Courts: The Digital Millennium Copyright Act and its impact on freedom of expression, fair use, and innovation: Since its passage by Congress in 1998, the DMCA has been enforced in the courts a number of times, ushering in dramatic new powers to copyright holders to control how individuals use digital media. As enforced, DMCA has chilled speech, stifled scientific advancement, and curtailed fair use rights. EFF is battling DMCA in several court cases challenging the constitutionality of the DMCA.

In 2600 Magazine v. Universal Studios et al, the 2nd Circuit Court of Appeals recently upheld a lower court's ruling under the DMCA that forced a journalist to remove information from his Web site and ban the publication from linking to other Web sites where DeCSS computer code may be found. The court also substantially abrogated fair use rights in the digital age in its ruling upholding the Act's constitutionality. EFF is appealing this ruling to the U.S. Supreme Court on First Amendment grounds.

Earlier this year, the recording industry used the DMCA to threaten a Princeton University professor and his research team from publishing their research demonstrating the weaknesses in the industry's technology for controlling digital music use. (Felten et al v. RIAA et al). The international scientific community complains about DMCA's stifling effect on research and innovation.

The first criminal charges brought under the DMCA were levied this summer against a Russian software programmer Dmitry Sklyarov, arrested after delivering a lecture on the weaknesses of Adobe's ebook viewing software. (US v. Sklyarov & Elcomsoft). The Ph.D. student at Moscow University faces up to 25 years in prison for distributing software that can be used for either lawful or unlawful purposes, in violation of the DMCA's anti-circumvention provisions.

Professor Jonathan Zittrain

Jack N. and Lillian R. Berkman Assistant Professor for Entrepreneurial Legal Studies, Harvard Law School and Faculty Co-Director of the Berkman Center for Internet and Society

Professor Jonathan Zittrain is a co-founder of Harvard Law School's Berkman Center for Internet & Society (http://cyber.law.harvard.edu) and served as its first executive director from 1997-2000. His research includes digital property, privacy, and speech, and the role played by private "middlepeople" in Internet architecture. He has a strong interest in creative, useful, and unobtrusive ways to deploy technology in the classroom.

Abstract: The Three Faces of the DMCA: Professor Zittrain will talk about three provisions of the DMCA that together represent a coordinated strategy to rein in the digital free-for-all on the Net. The "information should be free" extremists need to realize that (1) these provisions may well work and (2) a rhetorical strategy vacillating between smugness ("you can't control the Net!") or unfocused panic ("how dare you take away my right to rip DVDs and share them with people I've never met while keeping my own copies, too!") is called for. Otherwise they will be dismissed as thieves and pirates, and the juggernaut of legislation designed to tame the net will steamroll any hope of reasonable fair use.

Bill Thomas, ASCAP

Bill Thomas is the Director of Public Affairs for ASCAP (http://www.ascap.com), the American Society of Composers, Authors and Publishers, based in New York City. He is responsible for Grass-roots outreach to ASCAP's more than 130,000 songwriter, composer and music publisher members across the country, and the implementation of ASCAP's strategy on legislative issues in the U.S. Congress.

Bill joined the ASCAP Public Affairs staff as Assistant Director in April 1990. Prior to that, he ran his own Artist Management company, Bill Thomas Management, in Boston for three years, and he spent ten years in the Consumer Electronics industry, working as a Marketing Manager for RCA Video, BASF Audio/Video, and Panasonic. Bill may be reached by email at: bthomas@ascap.com

C. Scott Ananian, Activist and Computer Science Graduate Student at MIT

C. Scott Ananian is a computer science graduate student at MIT, and a local activist and organizer for copyright issues. He organized Free Sklyarov Boston in July 2001 and was a regular speaker at their downtown rallies, encouraging ordinary folks to see the ways that restrictive copyright laws influence their current and future abilities to use materials they own, access at schools, or may wish to borrow from libraries. His current focus is on creating alliances between libraries, "geektivists," and ordinary users to counteract the enormous legislative influence of large publishers. He can be contacted via email at: cananian@alumni.princeton.edu


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NEASIST Program Committee
December 2001