FC: Is Sen. Joe Biden's no-counterfeit-hologram bill misworded?

[Declan McCullagh <declan () well com>]

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From: "Thomas C. Greene" <tcgreene () bellatlantic net>
To: declan () well com
Subject: Biden bogus hologram measure mis-worded?
Date: Sat, 4 May 2002 01:34:09 -0400


Hi Declan,

I had a look at Joe Biden's proposed changes to Title 18 Section 2318 which
aim to prohibit counterfeit holograms and such. The idea is reasonable but
the language strikes me as potentially unfortunate for consumers, but likely
to be a big hit with the BSA, MPAA, etc. I think Politech members would find
this interesting.

chrz,
tom

http://www.theregister.co.uk/content/4/25156.html

US Senator Joseph Biden (Democrat, Delaware) has proposed an amendment
http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2002_record&page=S3561&position=all 

to existing US law which will create criminal penalties for counterfeiting
so-called 'authentication features' related to software, digital movies and
audio content.

Current law under Title 18, Section 2318 criminalizes the counterfeiting of
packaging materials and logos, but the Biden amendment, we're told, merely
adds such items as holograms to the list. And if that were the case, we'd
have little to criticize here, in spite of the suspicious facts that Senator
Fritz 'Hollywood' Hollings (Democrat, South Carolina) is a co-sponsor of the
bill, and Microsoft Corporation heartily approves of it.

But of course with connections like those, it really couldn't be a
straight-up piece of fair legislation, now could it?

And it isn't quite. Either it's well-intentioned but naively crafted, or it's
a legislative Trojan horse of the sort our copyright industry lobbyists excel
in writing. The problem is in the definition of 'authentication feature'.

"The term 'authentication feature' means any hologram, watermark,
certification, symbol, code, image, sequence of numbers or letters, or other
physical feature that either individually or in combination with another
feature is used by the respective copyright owner to *verify* (my emphasis)
that a phonorecord, a copy of a computer program, a copy of a motion picture
or other audiovisual work, or documentation or packaging is not counterfeit
or otherwise infringing of any copyright."

The word "verify," which means, among other things, 'to confirm' and 'to
ensure', presents a bit of a problem. It's certainly not in the consumer's
interests to suggest in federal law that the copyright industry has a mandate
to confirm the validity of copyrights attaching to consumer products.

Verification implies a right of access. For DVDs, say, it could mean a DVD
player 'phoning home' with the status of the 'authentication features'
embedded in a disk it happens to be playing. The same could be done with
software. The technology needed for remote 'authenticity verification' in
digital media of all sorts has existed for quite some time, as does nearly
all the required infrastructure -- and the software and entertainment
industries are straining to put them to wholesale use.

So it really comes down to a single word: verify. Substitute words that
wouldn't worry me would be "guarantee", or "assure" -- which 'verify' can in
fact mean. It's just that it hasn't got to.

Few would argue that a copyright holder hasn't got a legitimate interest in
prosecuting those who fabricate counterfeit copy-protection emblems to go
with their knock-off products, thereby making them look more convincing. And
this is the amendment's stated goal, according to Biden's speech on the
Senate floor and according to his press release.

So then why choose a word like 'verify', which has a troublingly flexible
meaning in this context, when one could as easily have chosen the words
'assure' or 'guarantee', which don't?

Well, because ambiguity is what lobbyists get paid to introduce into
legislation whenever it might increase the scope of a law in their favor. On
the other hand, these same Sophists can tie up a Congressional measure for
ages sniffing out industry-restrictive language and stripping it down to the
narrowest meaning conceivable.

It's not quite a license for the Business Software Alliance (BSA) and the
Recording Industry Ass. of America (RIAA) and the Motion Picture Ass. of
America (MPAA) to start kicking doors on private citizens, but we know it's
only a matter of time before Congress foolishly awards them one. A few more
innocuous slips like this one and they'll be handing out the brown shirts
soon enough. ®

Related Story:
Senator brutalizes Intel rep for resisting CPRM
http://www.theregister.co.uk/content/54/24262.html




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