FTAA, EFF, Skylarov, DMCA

The following letter was sent regarding recent lanugage in the FTAA draft agreement that would require, effectively, all nations in the Americas (South and North) to make it illegal to reverse engineer copyright-protection software. This would permit producers to force restrictions on how their works are not just copied, but used. They can, and will, take your consumer rights away. For more information, see the EFF’s page.

August 17, 2001
Gloria Blue Executive Secretary,
Trade Policy Staff Committee Office of the U.S. Trade Representative
1724 F. St., NW, Fifth Floor
Washington, DC 20508
      David E. Weekly
      950 Pershing Avenue
      San Jose, CA 95126

Dear Gloria,

I would like to take a few moments of your day to express to you
some opinions my colleagues and I share regarding the intellectual
property provisions contained within the draft FTAA agreement. I am
writing you today as a concerned citizen of the United States and an
entrepreneur, computer scientist, innovator, and engineer.

I have been working with computers for the last seventeen years of
my life. I have performed for-hire and contract innovation and
consulting for numerous companies, including Casio Research, myplay,
Scout Electromedia, atWeb (now part of AOL), Warner Music,
HearMe/MPlayer, and most recently Legato Systems. I have assisted
research at Harvard’s Physics Labs in antimatter recombination
simulations, MIT’s Lincoln Laboratories in pattern recognition, and
Stanford’s Graphics Labs with optimization of 3D mesh alignment
algorithms. I have been interviewed as a technical expert and quoted
in the New York Times, Fortune, Forbes Digital, Wired, USA Today, the
LA Times, C|Net, and others. I have spoken at and moderated panels at
several technology-oriented conferences. I have written articles for
the international technology press and analyses for paid-for limited
distribution. I have several patents pending.

I mention these things to you so that you can see that the
grounding for my views on intellectual property is as someone who has
made their income for the last decade solely on the production of
intellectual property. I am, in short, a knowledge worker.

The measures in the FTAA agreement restricting the reverse
engineering of software binds the hands of consumers and knowledge
workers in unacceptable ways. We have already seen the United States
ridiculed for its perversely stifling measures in the DMCA,
specifically those dealing with anti-circumvention. As I was a DEFCON
9 attendee, Dmitri Sklyarov’s arrest was all the more immediate and
cutting; it made me embarrassed to be an American among my
international peers. In a land that boasts of its freedoms, the irony
of being unable to speak or publish has not been missed: not on
Skylarov nor Edward Felten nor Eric Corley.

One hearing at Stanford that I attended, held by the US Copyright
Office, left a deep impression upon me. Librarians explained to
Marybeth Peters, the Registrar of Copyrights, that without
circumvention, it was unclear how they would preserve eBooks and other
similar publisher-controlled formats for the reading pleasure of
future generations. After the hearing I was talking to Sony’s
general counsel about the case. “You know what,” he said to me
conspiratorially, “this is all just about people wanting stuff for

The problem is that this goes much beyond a simple line of
“should intellectual property be free or be paid for?” It’s
clear that intellectual property needs compensation; otherwise I would
not be able to earn a living! What publishers want to do, however, is
not merely charge for the copying of material (for which they have a
copyright and hence a justifiable right), but to control fully the use
of their work. There exists no such thing as a “use-right” that
a company can purchase in the physical world: to demand that only
males can read such and such a book and only on alternate Tuesdays
while drinking Orange Fanta. It would be preposterous and outrageous.

But to use the FTAA agreement to force member nations to ratify a
bill that would prevent circumvention of arbitrary protection schemes
is to hand companies such a right. Because, given the above, it would
be illegal to modify the equivalent digital content to enable it to
play on Wednesdays as well, even if you had fully purchased a
copy. The rights of consumers would rest in the hands of the
publishers, who have very little interest in maintaining consumer

In my personal opinion, this quandary results because we have made
consumer rights a declarative right and not an assertive right; no
person is allowed to take away your rights directly, but if a piece of
software does it, and a person directs the software, and you are not
permitted to countermand the software, then it is as good as if a
person had directly taken away your rights. Consumers have no direct
legal ground upon which to say “you are not permitted to take away
my right to read books that I’ve bought buy where and when I’d
like, listen to music the same, and watch movies the same!” But
they do have this as an ethical right; for what reason was copyright
assigned but to make sure that works were spread and freely consumed
since a profit could be assured for the publisher from their sale? For
what reason were patents established, but to enable the sharing of
ideas, no longer afraid that others would steal and profit from them?
But these concepts are being infringed upon most directly.

A coworker of mine today spontaneously recounted his frustrations
at traveling to Europe on business with a portable DVD player and
being unable to view any purchased or even rented DVDs there, even
ones unavailable in the US, because of region encoding differences. He
declared his desire to circumvent the region encoding protections, not
for the purpose of making even a single copy of a DVD, but simply so
that the DVD he had purchased would be capable of playing on a player
that he had purchased! This is a right that the movie industry has
already taken away from all people.

I am a member of the Electronic Frontier Foundation, which seeks
to repeal (and indeed prevent future passage of) such laws as the
DMCA. While making my living from the sale of intellectual property, I
do not seek to control its usage; nor do I believe that any knowledge
worker has the right to control how their work is used — only how
it is copied.

I was asked recently by Wired News if I really meant the above;
namely, would I not object if the government of China were to use Rage
Against the Machine (RATM) to promote communism — should not RATM
be able to veto such usage? To which I replied that RATM had no such
right and neither should the Chinese government have the power to
prevent RATM from using Chinese symbols (flags, etc.) to promote
RATM’s music. The street runs both ways and should. Free speech,
allowing the publicly accusing and the publicly accused to both be
heard, works on a similar flavor of justice.

To forget this and forgo the distinctions between copyright and
usage rights is to produce an Orwellian future for the citizens of the
world, and furthermore to stifle academic research, knowledge sharing,
and the roots of intellectual inquiry that led us to our current
prosperity, even in “recession.”

I hope, pray, and trust that you and your office will see to it
that the corresponding portions of the FTAA agreement are removed, to
give citizens justice and justice her due.

Respectfully Submitted,

David Emmanuel Weekly


cc: Kira Alvarez, Walter Bastian