Silicon Valley Fights Back Hollywood has a worthy adversary in South Bay Congresswoman Zoe Lofgren
Hal Plotkin, Special to SF Gate
Wednesday, October 9, 2002
In Silicon Valley, where crack computer programmers and networking aces are now competing for jobs waiting tables and tending bar, the connection between government policies that are hurting the digital economy and skyrocketing tech-sector unemployment seems pretty obvious.
But outside those circles, many other Americans haven’t connected those dots yet. More important, they haven’t realized that the government is also about to come after them.
Take, for example, the legal rights consumers won in the landmark 1984 Sony Betamax case, which established “fair use” rights to make limited copies of CDs, records, TV shows, books and other entertainment products. As digital wares replace older analog media such as videotapes and audiotapes, those rights will disappear.
The fate of the high-tech economy has always hinged on the successful introduction of a steady stream of new technologies and services. One of the reasons so many techies are out of work right now is because companies don’t hire people to make products that might be illegal, such as anything capable of copying digital media. And that means that what’s left of the new-media industry will continue to die on the vine, taking the hopes of would-be suppliers to that industry, and much of the tech sector in general, down the tubes with it.
The digital slowdown is also undermining development and sale of the more advanced software, hardware, telecom and networking services that a more open and accepting attitude toward new technologies such as broadband media and peer-to-peer computing would have created.
Which is why safeguarding the right to make limited numbers of copies of legally owned entertainment products will be crucial for Silicon Valley in the digital age. If that right is protected, consumers would once again have reason to buy the newer technologies and services that are needed to reignite growth in sagging tech markets.
And the best way to do that, says San Jose Congresswoman Zoe Lofgren, is to make sure the public understands what it has at stake.
Lofgren announced new legislation last week, called the Digital Choice and Freedom Act, that does just that. Designed primarily to appeal to consumers, the bill also offers the best shot yet at getting the faltering digital and broadband economies back into job-creation mode.
Rather than argue about what is best for Silicon Valley firms — or, for that matter, for Hollywood studios — Lofgren wants to shift the debate to the question of what is fair to the buyers of digital media.
Reframing the issue along those lines more closely links Silicon Valley’s commercial interests with the desires of consumers across the country. The goal is to create a pro-consumer coalition among legislators to counterbalance the substantial influence commanded by the big-media conglomerates that are trying to turn back the clock on what were until recently well-established consumer rights.
At issue is whether the fair-use doctrine established in the Betamax case will continue to apply in the years ahead. The U.S. Supreme Court decided that case with a ruling that gave consumers the right to make what the court called “fair use” of any purchased media products. Those rights include the ability to copy a legally obtained media product onto another format, to share the product with a limited number of people such as friends and family or to give it away entirely or sell the copy that you own (as in the case of selling a used CD to a music store).
But legislation passed since then, most notably the Digital Millennium Copyright Act (DMCA), eliminated those rights for digital media. Under that legislation, Congress made it a crime to subvert copyright-protection schemes even if people were doing so only to make fair uses of the media they purchased.
That’s why it’s great news that, at long last, the entertainment industry is finally being put on the defensive.
Lofgren’s legislation would protect the fair-use rights of consumers and entrepreneurs to use digital forms of entertainment in the same ways that were permitted for older, nondigital types of media. That means consumers would still be allowed to copy a Bob Dylan song off their favorite CD and give it to a friend, or copy “West Wing” digitally and then e-mail the program to a family member who might have missed it.
It would also mean no more arrests of people such as Dmitri Sklyarov, the Russian programmer who was busted at a technology convention in Las Vegas last year and thrown into jail after his company published software that disabled a method used to prevent copying of electronic books.
Nothing in Lofgren’s proposal would permit wider sharing, beyond friends and family, of copyrighted materials or their unauthorized resale, which would still be prohibited under federal law. But its passage would make the world safer for a new generation of consumer-electronics, computing, entertainment and communications offerings, such as personal video recorders that allow consumers to send TV programs over the Internet and other similarly innovative products and services. Growth in those new directions would go a long way toward putting people back to work, as well as opening up new types of job opportunities few of us can presently imagine.
Escalating unemployment in Silicon Valley might not concern members of Congress outside California very much. But Lofgren figures her congressional colleagues will care if they start getting inundated with letters and e-mails from voters in their own districts objecting to Congress interfering with fair-use rights consumers have come to expect.
Lofgren is an excellent tactician who has chosen a smart place to make Silicon Valley’s stand.
I’ve been covering her for nearly 20 years. Throughout that time, she’s been a reliable and effective champion of underdog causes. She’s also an incredibly hard worker whom opponents routinely underestimate.
Given her track record, it’s not surprising Lofgren has stepped up to the plate on this issue.
She won re-election to the Santa Clara County Board of Supervisors in 1988 without having to go through a runoff, by pocketing more than 50 percent of the vote in what was supposed to be a primary. Her first race for Congress, in 1994, saw her pull out an upset victory over her heavily favored rival, former San Jose Mayor Tom McEnery. She hasn’t had a serious challenge since then, something she forestalls by keeping up the informal weekend meetings with voters at local shopping centers that have become her trademark. Her popularity makes Lofgren nearly unbeatable, which means she will be a durable opponent for congressional colleagues who rely on corporate backing to keep their seats. Her strong local support also explains why Lofgren is willing to take on issues that many other politicians fear.
One example: When she served on the Santa Clara County Board of Supervisors, Lofgren was often that body’s most effective defender of programs that serve the mentally ill. In that case, Lofgren’s winning tactic was to show her colleagues how providing services to the mentally ill saved taxpayers money in other ways.
Fortunately, most of Silicon Valley’s unemployed workers don’t have serious mental-health problems, at least not yet. But they do fall into a somewhat similar category. As a group, they have been left behind, abandoned by the leaders of many of their former companies, who care more about their own stock options than they do about what happens to their workers. They’re also scorned by others who seem far too eager to portray joblessness in the tech sector as a deserved comeuppance for arrogant yuppies rather than as a still-unfolding human tragedy. At the moment, few people other than Lofgren who are in positions of power appear to be in much of a hurry to get the digital and broadband economies back on track.
Lofgren’s legislation has at least a shot of doing just that. At a minimum, the argument surrounding copyright issues might finally stop revolving solely around the often-misleading claims the entertainment industry bosses make about the need to protect the rights of artists, whom they in fact routinely rip off.
Instead, members of Congress will also have to contend with growing numbers of voters in their districts who are sure to begin seeing the issue as Lofgren has framed it: as a question of what people should get when they put their hard-earned money down to buy a tape, a video or cable-TV service. It’s a safe bet most of them won’t want the federal government putting unreasonable conditions on the use of media products they’ve paid good money for.
To be sure, it’s possible that when the dispute surrounding the legality of copying digital media is finally resolved, tech firms and consumers might still find themselves on the short end of the stick.
But Lofgren’s approach makes it at least equally possible that the most influential big-media corporate powers will be forced to yield to what is in the end our nation’s largest and single most powerful interest group: America’s roughly 280 million couch potatoes.
From where I sit, it looks like Silicon Valley’s chances of winning this fight just improved, big time.
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