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The Analog Hole: Can Congress Protect Copyright and Promote Innovation?

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S. HRG. 109–539 THE ANALOG HOLE: CAN CONGRESS PROTECT COPYRIGHT AND PROMOTE INNOVATION? HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS SECOND SESSION JUNE 21, 2006 Serial No. J–109–86 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 29–573 PDF WASHINGTON : 2006 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 VerDate 0ct 09 2002 11:07 Aug 28, 2006 Jkt 029573 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\29573.TXT SJUD4 PsN: CMORC COMMITTEE ON THE JUDICIARY ARLEN SPECTER, Pennsylvania, Chairman ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, JR., Delaware MIKE DEWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin JOHN CORNYN, Texas CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma MICHAEL O’NEILL, Chief Counsel and Staff Director BRUCE A. COHEN, Democratic Chief Counsel and Staff Director (II) VerDate 0ct 09 2002 11:07 Aug 28, 2006 Jkt 029573 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\29573.TXT SJUD4 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 2 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 4 prepared statement .......................................................................................... 96 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1 prepared statement .......................................................................................... 129 WITNESSES Burton, LeVar, National Board Member, Directors Guild of America, Los Angeles, California ............................................................................................... 2 Cookson, Chris, President of Technical Operations and Chief Technology Offi- cer, Warner Brothers Entertainment Inc., Burbank, California ...................... 10 Glickman, Dan, Chairman and Chief Executive Officer, Motion Picture Asso- ciation of America, Washington, D.C. ................................................................. 6 Shapiro, Gary J., President and Chief Executive Officer, Consumer Elec- tronics Association, Washington, D.C. ................................................................ 8 Sohn, Gigi B., President, Public Knowledge, Washington, D.C. .......................... 14 Zinn, Matthew, Vice President, General Counsel and Chief Privacy Officer, TiVo Inc., Alviso, California ................................................................................ 12 QUESTIONS AND ANSWERS Responses of LeVar Burton to questions submitted by Senator Specter ............ 26 Responses of Charis Cookson to questions submitted by Senator Specter ......... 35 Responses of Dan Glickman to questions submitted by Senator Specter ........... 39 Responses of Gary Shapiro to questions submitted by Senator Specter ............. 46 Responses of Gigi Sohn to questions submitted by Senator Specter ................... 54 Responses of Matt Zinn to questions submitted by Senator Specter .................. 61 SUBMISSIONS FOR THE RECORD Burton, LeVar, National Board Member, Directors Guild of America, Los Angeles, California, prepared statement ............................................................ 74 Cookson, Chris, President of Technical Operations and Chief Technology Offi- cer, Warner Brothers Entertainment Inc., Burbank, California, prepared statement .............................................................................................................. 80 Glickman, Dan, Chairman and Chief Executive Officer, Motion Picture Asso- ciation of America, Washington, D.C., prepared statement ............................. 90 Miller, Scott P., Executive Vice President, Veil Interactive Technologies, St. Louis, Missouri, prepared statement .................................................................. 97 Shapiro, Gary J., President and Chief Executive Officer, Consumer Elec- tronics Association, Washington, D.C., prepared statement ............................ 105 Sohn, Gigi B., President, Public Knowledge, Washington, D.C., prepared statement .............................................................................................................. 114 Zinn, Matthew, Vice President, General Counsel and Chief Privacy Officer, TiVo Inc., Alviso, California, prepared statement ............................................. 131 (III) VerDate 0ct 09 2002 11:07 Aug 28, 2006 Jkt 029573 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\29573.TXT SJUD4 PsN: CMORC VerDate 0ct 09 2002 11:07 Aug 28, 2006 Jkt 029573 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\29573.TXT SJUD4 PsN: CMORC THE ANALOG HOLE: CAN CONGRESS PRO- TECT COPYRIGHT AND PROMOTE INNOVA- TION? WEDNESDAY, JUNE 21, 2006 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The Committee met, pursuant to notice, at 9:34 a.m., in room SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. Present: Senators Specter, Hatch, and Leahy. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Chairman SPECTER. Good morning, ladies and gentlemen. Now that our witnesses are all here, we will proceed. We had heard there was a traffic problem in Washington. Shocking development that that would occur to delay witnesses, but we are all here now so we will proceed with this hearing on the inherent tension be- tween protecting copyrights and stimulating technology. This is the third hearing conducted by the Committee on this issue. Last April, we had a hearing on the digital radio issue, in September on Grokster, and today’s is the third hearing. We will take up the question of the so-called analog hole, which is the tech- nological loophole that could allow intellectual property thieves to illegally duplicate digitally protected movies, video programming, and other visual creations that are viewed in the home. Content owners have incorporated anti-copying features, but they are not foolproof. So the object is to see to it that we can protect property rights and we can also do without curtailing innovative ideas in a very fast-moving field. I hosted a roundtable earlier this month on June 6th with the interested parties to see if we could find some area of compromise. When you deal in an issue of this sort with giants on both sides, my experience has been that it is preferable to see if the parties cannot find a solution among themselves as opposed to relying on Congress. Legislation is full of unintended consequences. It does not have too many intended consequences. So that if it can be worked out to the satisfaction of the people who are interested and know the most about it, that is the preferable course. Without objection, my full statement will be made a part of the record. (1) VerDate 0ct 09 2002 11:07 Aug 28, 2006 Jkt 029573 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29573.TXT SJUD4 PsN: CMORC 2 [The prepared statement of Chairman Specter appears as a sub- mission for the record.] Chairman SPECTER. Let me yield now to my distinguished col- league, Senator Hatch, for an opening statement. STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH Senator HATCH. Well, we are just happy to have all of you here. I am more interested in listening to you and seeing what you feel about these matters. Of course, we want to do what is right, and I appreciate the Chairman holding this hearing. I appreciate his leadership in this matter, and I appreciate all of you for being here. That is all I have to say. I am going to listen as carefully as I can. Thanks, Mr. Chairman. Chairman SPECTER. Thank you very much, Senator Hatch. Our first witness is Mr. LeVar Burton, a National Board Member of the Directors Guild of America; well-known for his performance in the role of Lieutenant Commander Geordi La Forge in the tele- vision series ‘‘Star Trek;’’ also a director on such television pro- grams as ‘‘Charmed,’’ ‘‘JAG,’’ ‘‘Star Trek;’’ a graduate of the Univer- sity of California School of Theater. Thank you very much for join- ing us, Mr. Burton, and we look forward to your testimony. As you note from the time clock, we have a 5-minute rule, and we will start the clock back at 5. STATEMENT OF LEVAR BURTON, NATIONAL BOARD MEMBER, DIRECTORS GUILD OF AMERICA, LOS ANGELES, CALIFORNIA Mr. BURTON. I will get right to it then. Chairman SPECTER. Thank you. Mr. BURTON. Thank you, Mr. Chairman, Senator Hatch, very much for the invitation to discuss this problem posed by the tech- nology gap that you referred to earlier as the ‘‘analog hole.’’ As you stated, I am here today on behalf of the Directors Guild of America, and I am a National Board Member, and the Directors Guild today represents over 13,500 directors and members of the directorial team who work in feature film, television, commercials, documentaries, and news. The DGA’s mission is to protect the eco- nomic and creative rights of directors and the directorial team, and we are working to advance our artistic freedom and to ensure fair compensation for our work. Now,
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