A BRIEF ANALYSIS OF THE ³SUPER DMCA² (THE DRAFT MODEL COMMUNICATIONS SECURITY ACT)

[Dave Farber <dave () farber net>]

A BRIEF ANALYSIS OF THE ³SUPER DMCA² (THE DRAFT MODEL COMMUNICATIONS
SECURITY ACT)

Mike Godwin 
 


Background

 

Over the past two years, lobbyists from the Motion Picture Association of
America (MPAA) have been lobbying in state legislatures for passage of a
model ³Communications Security Act.²  This act, which has already been
passed by six states ­ Delaware, Illinois, Maryland, Michigan, Pennsylvania
and Wyoming ­ has been represented to legislatures as little more than an
updating and minor amendment of existing state laws designed to prevent
theft of cable or telephone service.

 

A close reading both of the acts that have been passed and of the ³draft
model act² shows, however, that the proposed law could have a far broader
impact ­ it could undermine existing consumer rights to use cable, telephone
and Internet services, and could also hurt technological innovation and the
development of new products that benefit consumers.

 

The model act, together with the state acts that already have been passed or
that currently are being proposed, are often referred to by some opponents
as ³super DMCAs² or ³state DMCAs² ­ in reality, their scope is different
from, and far broader than, the federal Digital Millennium Copyright Act.

 

Overbroad Definitions

 

The acts protect ³communication services,² which include any ³service
lawfully provided for a charge or compensation² delivered via electronic
means using virtually any technology.  This includes every wire in your
house for which you pay a fee, including your telephone, cable TV, satellite
and Internet lines.  This category also sweeps in any Internet-based
subscription services for delivery of copyrighted materials, including
digital music services such as pressplay, MusicNow, or Rhapsody.

 

The acts would regulate the possession, development and use of
³communication devices² and ³unlawful access devices.²  A ³communication
device² is virtually any electronic device you might connect to any
communication service.  The definition of ³unlawful communication device² is
somewhat narrower, sweeping in any device that is ³primarily designed,
developed, Špossessed, used or offeredŠ for the purpose of defeating or
circumventing² a technological protection measure used to protect a
communication services.

 

What the Acts Prohibit

 

The proposed bills generally prohibit four categories of activity:

(1) Possession, development, distribution or use of any ³communication
device² in connection with a communication service without the express
authorization of the service provider.

(2) Concealing the origin or destination of any communication from the
communication service provider.

(3) Possession, development, distribution or use of any ³unlawful access
device.²

(4) Preparation or publication of any ³plans or instructions² for making any
device, having reason to know that such a device will be used to violate the
other prohibitions.

 

The Proposed Acts Are Unnecessary

 

The MPAA has argued that this law is necessary to ³update² existing state
laws to prevent ³Internet piracy² and ³cable theft.²  But copyright
infringement and cable-service theft are already expressly prohibited under
current state and federal laws.  In addition, any service provider who
believes a subscriber has violated the terms of his or her service contract
can terminate the contract.

 

The MPAA has not identified any specific problem that is not already
addressed by existing law.  Nor have state law-enforcement personnel called
for or supported these proposals.

 

Controlling Consumers and Undermining Innovation

 

These prohibitions, together with the broad definitions, dramatically expand
the power of entertainment companies, Internet service providers, cable
companies and others to control what citizens can and can¹t connect to the
services that they pay for.  If enacted, they will slow innovation, impair
competition and seriously undermine consumers¹ right to choose what
technologies they use in their homes to lawfully access these services.

 

These acts could make a citizen a criminal for simply connecting a TV, PC,
TiVo or VCR (all of which can ³receive² communication services) to the cable
TV line in his or her living room without the cable company¹s permission.
It could also make a citizen a criminal for connecting a Wi-Fi wireless
gateway (which can ³retransmit² Internet traffic) to your DSL or cable modem
line without the permission of your ISP.

 

The shift proposed by these bills is radical: all technology that is not
expressly permitted becomes forbidden. This would give communication service
providers unprecedented control over the home entertainment and the
technology marketplace.

 

As noted above, the proposed bills also forbid a consumer from connecting
anything to a communication service without the service provider¹s express
authorization.  This creates an enormous opportunity for anticompetitive
conduct. Broadband Internet service providers, for example, could require
that their subscribers use only a particular brand of PC or operating
system.  AOL could effectively ban its subscribers from using any instant
messaging software other than its own.  Cable-TV providers could limit
subscribers to using only certain brands of VCRs and could ban TiVo in favor
of their own proprietary PVR technologies. This flies in the face of the
Federal Communications Commission¹s longstanding policy to encourage the
development of open, interoperable standards for cable-compatible
televisions, and to allow users to attach their own equipment to cable or
telephone networks, so long as doing so does no harm to the network.

 

³Intent to Defraud² Is Not A Fix

 

In response to criticism, the MPAA has offered to modify the proposal by
adding an ³intent to defraud² requirement for liability.  While that
language may address some concerns, it does not adequately narrow the scope
of the act, and in any case has been incorporated inconsistently or not at
all in the various proposed or enacted state statutes.  Furthermore, is
unclear whether a civil breach of service contract terms would be
interpreted to add up to a criminal ³intent to defraud.²

 

 

 

Attack on Privacy and Anonymity

 

The bills include a ban on devices that ³conceal Š the existence or place of
origin or destination of any communication.²  On its face, this ban would
outlaw many ordinary home-networking products, including routers that
include ³network address translation² and/or security firewalls, because
they conceal some user activities and identifying information from the
larger Internet. The use of ³virtual private networking² (VPN) software by
corporations to secure communication with off-site employees could also be
swept up by this provision. Products like Anonymizer that are designed to
protect the privacy of Internet users against advertisers like Doubleclick
might also be implicated.

 

Broad and Bad Remedies

 

The proposal provides a number of provisions and remedies that add up to bad
public policy.  These include:

 
* Adding a civil remedy to broad criminal statutes,which enables private
parties to exercise the same kind of discretion as aprosecutor, but without
the same degree of public accountability.
 
* Enabling state courts to order ³remotedowngrades² of software or equipment
by vendors on a nationwide basisthrough ³auto-update² features.
 
* Imposing one-sided fee-shifting (losingdefendants have to pay attorneys¹
fees for the winning plaintiff, but theconverse is not true).
 
* Allowing automatic preliminary injunctions,without any showing of likely
actual damage, irreparable harm orinadequate remedy at law.
 
* Awarding of statutory damages that may becrippling to defendants, even
when a plaintiff cannot show any actualdamages at all.
 

Time to Be Heard

 

Laws like the Super-DMCA make it clear that Hollywood has overlooked or
disregarded vital consumer and public interests in eagerness to craft new
(and superfluous) laws to "protect" its copyrighted works.  Public Knowledge
believes it is legitimate for Hollywood to protect its copyright interests,
but also believes it is bad policy to attempt to do so by making it illegal
for citizens and consumers to do anything but what the studios and other
corporate content providers dictate.

 

Public Knowledge is working to counter the efforts of the MPAA on these
bills, but we cannot do it alone. We ask that you educate yourself on this
issue, contact your local representative, and reassert your rights as a
citizens and consumers.

 

For further information, contact Mike Godwin, Senior Technology Counsel,
Public Knowledge at 202-518-0020 or godwin () publicknowledge org

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