I don’t think this agreement marks any particular global settlement of the debate … The agreement doesn’t mention “fair use” at all. I think that it’s a great example of why letting interindustry negotiations dictate our rights is a bad idea. In this day of copy-protection and the DMCA [Digital Millennium Copyright Act], to not address fair use head-on is, I think, a big mistake.

The MPAA [Motion Picture Association of America] has to my knowledge not come out [on the agreement] one way or the other, the Consumer Electronics Association similarly is not included, and none of the consumer groups were consulted.

To my knowledge, the library community, the EFF, the Consumers Union, none of us were invited to participate.

While it’s interesting to see this particular group of inside-the-Beltway organizations strike a deal, I don’t think it gives us a long-term vision for the future.

Because too many other constituencies are left out?

Right. Not only are we seeing public-interest groups being left out entirely, but we’re seeing huge portions of the industry apparently not signing on, including the MPAA. As I understand it, the fundamental deal in it is that the content side gives up the Hollings bill [which would have mandated copy-protection technology in computer hardware] and the technology side backpedals somewhat on [their demands for] DMCA reform.

Of course, the ironic thing is that the chief proponent of the Hollings bill is the MPAA. So it’s a cheap concession for the RIAA to give the Hollings bill up, since it wasn’t their main priority. It’s sort of an example of horse-trading somebody else’s horses.

Again, I think all of this is interesting from an inside-the-Beltway, D.C.-maneuvering point of view, but I don’t think that it marks any meaningful change on the ground for consumers or for the actual innovators who are building new technologies.

So, consumers are still going to be in the same position?

Yeah. How does this change the fact that we’re seeing copy-protected CDs being introduced? That we’re seeing more and more digital-rights management appearing on digital television?

The public’s fair use and other legitimate rights are being eroded, and unless a statement of principles strongly supports those rights, it’s sort of overlooking the most important thing for the people who are most directly affected.

But the agreement is being positioned as trying to keep the government out of these issues, right?

Yes. The claim on the outside is: We’re trying to keep the government out of it. Of course, the reality is quite different. First of all, the government is already very much in it.

In 1998, the government passed the DMCA, which was sort of a revolutionary overhaul of the way we deal with copyright law. And then at the same time the motion picture industry is asking the FCC to create a technology mandate for digital television in the form of the broadcast flag.

I have [also] not heard Rep. [Howard] Berman [D-Calif.] back down on his support for government-endorsed digital vigilantism against peer-to-peer networks.

For these guys to say that this is an agreement that the government should butt out, well, that’s great to say, but the reality is that the government is very much involved, and many of the players on the content side are continuing to ask for more government involvement in the form of the broadcast flag and the Berman bill and other things like that.

The last time I checked it was not up to a bunch of industries to get together and decide the public’s rights.

The industries so take it for granted that they control the policymaking apparatus in D.C. that it doesn’t even occur to them that maybe the public’s representatives should have something to say. I’ve heard that Rep. Berman and others have put out statements in support of it. But where are the hearings? Where is the open public dialogue about this issue?

Do you think that this could be a cynical move on the part of the technology companies, because they know that advances in technology will allow content sharing to continue, no matter what happens?

I’m not quite that cynical about it.

Frankly, I think it’s important to realize that the CSPP and the BSA do not speak for the high-tech industry, as a whole. Unlike the RIAA and the MPAA, which represent the vast majority of the largest players in their industries.

If you look at the CSPP, for example, they have an impressive list of members. But if you compared their list of members to the total revenues of the high-tech industry, I’m sure that they’re a minority.

There isn’t a single entity in D.C. that can speak for all of the high-technology companies in the American market. What this is is a statement by the largest companies with the most sophisticated Washington presence.

Microsoft is one of the largest and most influential members of the BSA. So, I’m sure BSA got sign-off from Microsoft, or at least Microsoft didn’t object, but that doesn’t necessarily speak for every software company in the country.

Do you think that small companies, start-ups would have a different agenda?

I think they might.

I think all the tech industry wants the government to butt out. They don’t want to turn into a regulated industry. They don’t want to suddenly have their design decisions dictated from Washington. On that point, I’m sure they can all agree. And there’s no question that that’s involved here.

But it’s always important to realize that other than that basic fact there’s a lot of dispute.

I’m not sure, for example, that companies trying to make DVD copying software, like 321 Studios, for example, would think that a list of principles that doesn’t address the DMCA is a good idea. I’m not sure that computer security researchers, for example, would say that a list of principles that doesn’t reform the DMCA is a good idea.

Just because some of the big players are willing to live with certain compromises doesn’t make those compromises the right answer.

So, you’re really downplaying the importance of this agreement.

Yeah. I think it’s about positioning, especially because the MPAA and the CEA [Consumer Electronics Association] are not onboard. It’s not even a global solution in the Washington lobbying community, much less for the world at large.

Again, as you point out, at the end of the day, the last time I checked, Congress would actually have to sign on. We have 535 representatives that are supposed to have something to say about this, and until they speak with one voice, the fat lady hasn’t sung.

I hope not, at least. They’ve been kind of ducking their responsibilities on copyright for a long time. You can’t defer these decisions to private industries forever. Forty million people are using peer-to-peer software. We’re seeing incredible new home digital technologies. There’s a lot at stake here, and I don’t think that we can leave it to interindustry negotiations to decide the fate of our digital rights.