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MPAA's Valenti testifies in 2600 suit, claims to know nothing

No wonder they put him in charge

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The smart choice: opportunity from uncertainty

Motion Picture Association of America (MPAA) Chairman Jack Valenti gave a deposition on Tuesday for the US District Court, in the MPAA lawsuit pending against 2600.com over linking to sites where the DeCSS utility, which cracks DVD encryption, can be found.

We were immediately impressed with Valenti's near-heroic ignorance of the issues surrounding the suit as 2600 lawyer Martin Garbus questioned him.

A crucial issue for Garbus was the inconsistency in the Digital Millennium Copyright Act (DMCA) which makes it a crime to skirt access controls while at the same time purporting to preserve the Fair Use exception. When access controls are used to protect copyrights, as they are in DVD's, the result is a contradiction with Fair Use, which Valenti insists he cannot grasp.

"Did you testify before Congress that the Fair Use Exception was not cut out by the DMCA," Garbus asked.

"Yes," Valenti assured him. "The concept of Fair Use is intact in the DMCA."

"Tell me how that is," Garbus urged him.

"Well, I don't know except that the concept is intact."

An apparently incredulous Garbus pressed the matter: "Do you agree that a person teaching in a classroom can take three, four, five minutes of a DVD and play it to his class?"

"If you mean can he de-encrypt it the answer is no, but he can get a DVD and fast forward to the three or five minutes he wants to play," Valenti noted.

"So if a librarian, for example, wants to [snip] two to three minutes [from a DVD] for a lecture, is she required to get a license from the DVD CCA or the MPAA to use those two or three minutes?"

"I can't answer the question," Valenti said.

"Why not?"

"Because I don't know what the answer is."

"Do you understand the question?"

"Huh?"

"Do you understand the question?"

"Not really."

A pretty good snow-job, we must admit, and pleasantly reminiscent of deposition grandmaster Bill Clinton's touching uncertainty over "what the meaning of 'is' is." Of course Valenti knew precisely what Garbus was playing at, trying to get him to admit that an access control effectively makes it a crime to exercise Fair Use, if Fair Use means whacking out a snippet from a DVD. One would, of course, have to decrypt it to do so.

"If you circumvent or de-encrypt to make Fair Use, is that MPA policy as being against the law," Garbus asked, still trying to trap him.

"I can't draw a legal conclusion," Valenti replied.

And there Garbus had got him. Valenti has drawn legal conclusions on that question: "Did you testify before Congress on the scope of Fair Use?"

"I may have; I don't recall," Valenti said. And so it went, for what seemed several hundred paragraphs.

Turning his attention briefly to MPAA claims that DeCSS causes real economic damage to the film industry, Garbus produced a document bearing Valenti's signature. "[In it] you say, 'Piracy is a $2 billion a year worldwide problem and growing.'"

"Uh-huh."

"Can you tell me if you have any information about whether one nickel of that piracy loss relates to DeCSS," Garbus inquired.

"I don't know," Valenti repeated again.

Valenti's full deposition, minus a few redacted secrets, is available on the 2600 Web site. It's a most entertaining read, at least for those who enjoy legal manoeuvring for its own sake, and can appreciate the delightfully lyrical effect achieved by a mesmerising repetition of the phrase, "I don't know." ®

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