DigitalConsumer’s Kraus: You can impact digital rights debate

By Grant Gross

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 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 NewYorkers 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

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

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.