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_at_nyc.rr.com>
To: "Declan McCullagh" <declan_at_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_at_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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Received on May 03 2002
Intro
