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

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 free."

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 rights.

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