FC: Roger Parloff: DMCA is sensible, but Hollings bill is plain nuts

[Declan McCullagh <declan () well com>]

Politechnicals may recall that Roger wrote a just-somewhat-controversial 
"Jail Dmitry!" column last year applauding the criminal prosecution under 
the DMCA:
http://www.politechbot.com/p-02360.html

Politech archive on CBDTPA:
http://www.politechbot.com/cgi-bin/politech.cgi?name=cbdtpa

-Declan

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From: "Roger Parloff" <rparloff () nyc rr com>
To: "Declan McCullagh" <declan () well com>
Subject: re CBDTPA
Date: Thu, 2 May 2002 10:16:48 -0400

in case your readers are interested. (from the may issue of the american 
lawyer, also available on <http://www.law.com>www.law.com . i think it's 
free everywhere (and will remain free).

direct link:
<http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagename=law/View&c=Article&cid=ZZZT275QM0D&live=true&cst=1&pc=0&pa=0>http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagename=law/View&c=Article&cid=ZZZT275QM0D&live=true&cst=1&pc=0&pa=0

A Fence Too Far

Why government regulators must recognize the difference between a computer 
and a VCR

<mailto:letters_to_the_editor () corp law com>Roger Parloff
<http://www.americanlawyer.com/>The American Lawyer
April 29, 2002

Amid all the vexing legal dilemmas that have been spawned as copyright 
owners try to secure their rights in a suddenly digital world, a 
refreshingly simple issue has finally emerged.

Whether you believe that this country should be tightening copyright 
protections online or loosening them, you should oppose the Hollywood- and 
record industry-endorsed bill introduced in March by Sen. Ernest Hollings 
of South Carolina. While the draft legislation, known as the Consumer 
Broadband and Digital Television Promotion Act, pursues plausible goals, it 
seeks to achieve them by authorizing mammoth government intrusion into the 
design of computer hardware and software.

The driving force behind the bill is not, as some critics have reflexively 
claimed, an attempt by copyright holders to deprive consumers of their 
"right" (i.e., their current ability) to make personal copies of music or 
movies for home use. The driving force, in fact, is just the opposite.

Both the music and film industries have discovered that it is 
technologically feasible to devise systems that enable consumers to make 
personal copies of digital files -- music, movies, video -- while 
preventing them from widely distributing those files over the Internet via, 
for instance, Napster-style file-sharing programs. If such a system were in 
place, consumers could, for instance, "rip" tracks from a CD, transfer them 
to portable music players, and yet not be able to make the file available 
to millions of strangers for free.

Since 1995 cross-industry working groups have discussed adoption of "open 
standards" that might facilitate such systems. The systems most commonly 
discussed rely upon a combination of both encryption and digital 
watermarking technologies. It would be quite possible today for, say, 
Warner Music Group to enter into private contracts with a device maker -- 
say, Toshiba -- to build a set of secure devices that use an encryption 
system designed by, for instance, InterTrust Technologies and a watermark 
designed by, say, Verance Corp. The problem with doing so is that Universal 
Music Group and its partners in the electronics and information technology 
industries might choose a competing system, relying upon Microsoft-designed 
encryption and a Digimarc watermark; Bertelsman Music Group might opt for 
yet a third system, and so on. Portable devices or CD players that could 
play only one label's secure music would be worthless to consumers, while 
devices that could play all five major labels' music would be prohibitively 
expensive and cumbersome.

Until consensus can be reached on a single industrywide security system, 
all such systems are stymied. Thus far, however, conflicting commercial 
strategies have made consensus impossible. In the wake of the breakdown of 
the music industry's security standards talks last year, individual labels 
have turned to technologically simpler but more draconian solutions, like 
selling copy-protected CDs that won't play on computers at all. These 
cruder solutions really do stop consumers from making "personal copies."

The Hollings legislation seeks to break the logjam by issuing an ultimatum 
to the information technology and consumer electronics industries: You will 
have one year to arrive at consensus security system standards -- or else. 
Thereafter the Federal Communications Commission could impose security 
standards with which all manufacturers of "digital media devices" would 
have to comply. The definition of such a device is so broad that, as 
professor Justin Hughes of the University of California, Los Angeles, 
School of Law told a Senate committee in March, it encompasses "every piece 
of software, PC, video card, hard drive, CPU, motherboard, PDA, DVD, or CD 
player, and every monitor manufactured or distributed in our country."

The prospect of gumming up the works of the globe's most exuberant engine 
of technological innovation and prosperity by subjecting it to bureaucratic 
notice-and-comment rule-making is unthinkable. Though there are a handful 
of precedents for modest government intervention into consumer electronics 
design, at least one of those -- the 1992 requirement that digital 
audiotape recorders be equipped with a "serial copying management system" 
-- was a notorious commercial and technological failure.

More important, there are cultural distinctions between a consumer's 
passive relationship with the single-function consumer electronics devices 
of the past (a TV, VCR or CD player) and his or her interactive 
relationship with today's computers and software. Computer users 
continually invent and discover new functions for their machines, by adding 
peripheral devices and feeding the computer new software or even designing 
their own. It is more important to lock the government outside of our 
computers than it ever was to lock it outside our appliances.

I have frequently sided with the protectionists in the digital copyright 
showdowns to date. I thought Napster was illegal, for instance, and think 
the Digital Millennium Copyright Act (which prohibits disseminating 
software designed to strip copy-protection off the files of copyrighted 
works) is sensible and constitutional. But certain lines must not be 
crossed in the quest to secure creators' digitized intellectual property. 
Sen. Hollings' bill transgresses those lines by a country mile.

Though my guess is that creators can adequately protect their digital wares 
without legislation of this sort, if events should prove me wrong, the 
Hollings legislation should still be defeated. If controlling digital 
property requires government intervention on this scale, then there should 
be no such control. Digital technology will have rebuffed the legal 
system's attempts to tame it, anti-protectionists will have won the war, 
and it will be time for protectionists like me to raise the white flag. We 
can't imperil everyone's freedom and prosperity in a quixotic quest. The 
game has to end somewhere.




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