Merely FYI, and as difficult as it may be for you may fully appreciate, I do extensive research before providing any comments. After MUCH digging I was able to locate what is easily one of the most BORING panel discussions I have ever heard. At times while listenting to the MP3 of the panel discussion (http://www.netcaucus.org/audio/2009/20090114copyright.mp3) I longed for an ice pick to stick in my hand merely because it would be much less painful.

The audio was lousy, so your quote is quite helpful. As best I can tell it does follow what Mr.French had to say. Being the intrepid soul that I am, I make it a point to always try and read the CVs of any panel member in any discussion about IP issues to try and get a feel for their qualifications. In this panel, but for one exception where I could not ascertain his undergraduate degree, not one lawyer on the panel has a background even remotely related to some form of technology/engineering. At least one had an undergraduate degree in political science, and several others in journalism.

You may wonder why I do this. Prior to the early 1980’s the vast majority of those involved in the practice of what is now known as IP were attorneys (at that time generally referred to as Patent Attorneys) with extensive backgrounds in technology AND engaged in the practice of the entire gamut of the law needed to accurately inform clients about all of their rights under law relevant to inventions, works of authorship, trademarks, unfair competition, and related antitrust and tax issues. Why do I deem this important? When a client walks into an office they want to know what it is that they can do. Far, far too often I have seen post 1980’s and so-called “IP” lawyers who are simply unable to consider all of the options provided by law because their experience is limited to only a small subset of the law. I have seen instances where someone familiar with only copyright provided advice that was not only glaringly deficient and incomplete, but in many cases was advice that was precisely the wrong thing to do under the business scenario faced by a client. The truth be told, in my tenure with a large aerospace corporation I had to spend an indordinate amount of time undoing the damage caused by such attorneys having a totally inadequate understanding of all relevant issues and options. There are few things that are more frustrating than trying to rectify after the fact GIGO advice provided to a client. In my estimation this amounted to about 25% or so of my time, time that could have been much better spent providing relevant and timely advice that would promote the interests of the company by anticipating future problems and helping set up business approaches that would prevent such problems, as well as helping the client to get from point A to point B as easily and beneficially as possible without crossing the line from legal to illegal conduct.

This said, I do have to agree with you and Mr. Masur that only one without any technological experience would ever suggest that there are filtering technologies capable of distinguishing infringing acts from those involving fair use. As Mr. Masur so aptly pointed out, fair use is dependent upon a close examination of all salient facts, and I can conceive of NO filtering technology capable of doing such an analysis. To suggest there is, or that it is just around the corner, exhibits total ignorance of filtering technology and its capabilities.

Yes, filters can be used to identify some content that may be subject to a copyright, but any suggestion that it can go beyond that into areas that are factually dependent (e.g., fair use) is plainly silly, uninformed, and wrong.

In the case of Mr. French’s comments I do have substantial questions about whether or not he truly has a firm handle on copyright law, and do have substantial concerns that others with similar backgrounds appear to have the ears of those in Congress. Small wonder that copyright law has wandered so far from its roots.