[Fwd: Policy Post 8.06: Bill Mandating Copyright Protection Standards Raises Serious Concerns]

[Russell McOrmond]

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Subject: [Fwd: Policy Post 8.06: Bill Mandating Copyright Protection
	Standards Raises Serious Concerns]
From: Sydney Weidman <weidmans at mts.net>
To: No DMCA in Canada <canada-dmca-opponents at flora.org>
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Date: 06 Apr 2002 00:58:32 -0600
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Thought this might be of use to the list.


Date: Fri, 5 Apr 2002 15:28:56 -0500
From: CDT Email <info at cdt.org>
Message-Id: <200204052028.g35KSur17932 at mail.cdt.org>
To: policy-posts at cdt.org
Subject: Policy Post 8.06: Bill Mandating Copyright Protection Standards
	Raises Serious Concerns


CDT POLICY POST Volume 8, Number 6, April 5, 2002

A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL 
LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY

CONTENTS:
(1) Hollings Introduces Digital Rights Management Bill
(2) Background on the Copyright Protection Issue
(3) Senate Hearings Outline Debate, Without Middle Ground
(4) CDT's View: Technical Review and Balanced, Market-Based
Solution Needed
(5) Leahy Urges Careful Consideration, Seeks Public Input

------------------------------------------------------------------------
(1) HOLLINGS INTRODUCES DIGITAL RIGHTS MANAGEMENT BILL

Senate Commerce Committee Chairman Ernest "Fritz" Hollings
(D-SC) introduced legislation March 21 that would require the
consumer electronics and information technology industries to
build standardized copyright protection technologies into computers,
software and many other digital products. In CDT's view, such
sweeping government mandates pose serious threats to innovation
and the future of the Internet and digital technology in general as
uniquely user-controlled, flexible, and open.

The announcement raised to a new level a long-running debate
about how to protect intellectual property on the Net. Most recently,
the debate has centered on the connection between putting
copyrighted audio and video content on the broadband Internet
and generating demand for broadband services. Right now, only
about 10 percent of households that could get broadband have
signed up for it. Although there are many explanations for this lack
of consumer interest, many in the movie and music industries point
to the lack of compelling content (movies and music) on the
broadband Internet, which the content providers say they are holding
back because of ineffective copyright protections. This reasoning --
and broader concerns about the ease of sharing big files over
broadband -- has led to the proposal to legislatively mandate a
scheme under which all technologies that might be used to play,
copy, retrieve or transmit digital content -- whether on the Net or off
it -- must be built so as to prevent illegal copying.

Sen. Hollings' bill, the "Consumer Broadband and Digital Television
Promotion Act" (S. 2048), is co-sponsored by Sens. Stevens (R-AK),
Inouye (D-HI), Breaux (D-LA), Nelson (D-FL) and Feinstein (D-CA).
Under its central provisions:

*	Makers of computers and consumer electronic devices, consumer
   groups and copyright owners would be encouraged to reach
   agreement on copyright protection standards and encoding rules.

*	If the private sector failed to agree on standards within one year,
   the Federal Communications Commission would be required to
   develop them.

*	All "digital media devices" -- TVs, audio and video players, and
   PCs, as well as many other devices -- would have to be
   manufactured to recognize and respond to those standards.

*	The rules to be developed would have to preserve fair-use rights,
   including for educational and research purposes and legitimate
   consumer copying.

The Hollings bill is online at:
http://thomas.loc.gov/cgi-bin/bdquery/z?d107:s.02048:

------------------------------------------------------------------------
(2) BACKGROUND ON THE COPYRIGHT PROTECTION ISSUE

Some leading content companies see digital technology, with its
capability for making 100-percent accurate, high-quality copies of
digital data, as a threat to their profitability, especially when digital
tools are combined with the capabilities of the broadband Internet.
Their fear is that, just as the music industry had to cope with
widespread Internet-based swapping of music files, soon the
movie industry may face widespread, unauthorized trading of
movie and TV files and other kinds of rich multimedia content
over broadband networks.

The response of these content companies is that there needs to be
a multi-industry technical standard -- backed by legislation -- that
can prevent digital technology from being used to facilitate
infringement. The goal of Hollywood's approach is to prevent
copyrighted content from being circulated on the Net outside their
control. But critics of the approach say that it appears that the only
measures that could do this require top-to-bottom rearchitecting
of the digital world, requiring the labelling of all copyrighted content
and a redesign of all digital devices to look for the labels and permit
or deny copying accordingly.

Makers of computers and consumer electronic devices as well as
some major software companies are opposed to government
mandates. These companies are willing to develop digital-rights
management (DRM) technologies that can be used to limit or
prevent unauthorized copying, and to license those technologies to
Hollywood, but they oppose any standard that would require them
to redesign all their products to check whether the files that are
being read, copied or transmitted are copyrighted works. They see
it as a form of government licensing and they worry about the costs,
about whether the technologies will have unforeseen consequences
for the functioning of their products, and about how the standards
will limit future innovation.

An often unheard side of the debate is the consumer perspective:
will such DRM technologies permit ordinary use that most
consumers believe is proper, such as copying CDs onto a laptop,
making a favorite songs CD for the car, or using a snippet of
copyrighted content in a home video?

------------------------------------------------------------------------
(3) SENATE HEARINGS OUTLINE DEBATE, WITHOUT MIDDLE
GROUND

Two Senate hearings -- one on the last day of February and one on
March 15 -- underscored the extent to which leaders in the
information-technology industry and the entertainment industry
are at odds over copy-protection schemes for content.

The first of the two Senate hearings was before Sen. Hollings'
Senate Commerce Committee. The witnesses included Disney
chief Michael Eisner, News Corp. head Peter Chernin, and Jack
Valenti, chairman of the Motion Picture Association of American,
who complained about current Internet-based copyright infringement.
During the hearing, several Senators warned that if the IT industry
does not make more of an effort to agree upon solutions to the
content industry's concerns, then Congress will step in and compel
the IT industry to do so through legislation. The claims of the IT
companies that innovation is put at risk by the broad technology
mandates sought by Hollywood were met with skepticism by
Senators, some of whom echoed the claim by one witness that
an "eighty-cent chip" might be all that's needed to bring a PC into
compliance with the proposed Act.

The second hearing, a Senate Judiciary Committee event chaired by
Sen. Patrick Leahy (D-VT), reflected a more cautious approach.
Witnesses included Richard Parsons of AOL Time Warner (a
company with one foot on the IT side and one on the content side)
and Jonathan Taplin, the CEO of Intertainer (a company that
streams licensed copyrighted content over the broadband Internet).
While several Senators expressed concern about Internet piracy --
especially the scope of piracy over broadband services -- Chairman
Leahy also raised questions about the technical difficulties of
implementing the kind of solution that Hollywood wants. Both
AOLTW and Intel stated a willingness to cooperate in developing
technical solutions, but stressed their reservations about broad
government mandates and a preference for market solutions.

However, AOLTW's Parsons also said that narrower, more targeted
legislation might be necessary soon, especially with regard to the
infringement problems posed by digital television broadcasts and
by the fact that copyright-protection measures may be lost when
digital TV signals are converted for display on analog television
receivers.

The Judiciary Committee panel also included Joe Kraus, a founder
of Excite.com and more recently of DigitalConsumer.org, a new
public-interest group that has been formed to promote a 
Consumer Technology Bill of Rights."

Statements and other materials from the Judiciary Committee
hearing are online at http://judiciary.senate.gov/hearing.cfm?id=197.

Materials from the Commerce Committee hearing are at:
http://commerce.senate.gov/hearings/hearings0202.htm

------------------------------------------------------------------------
(4) CDT'S VIEW: TECHNICAL REVIEW AND A BALANCED,
MARKET-BASED SOLUTION NEEDED

There is wide-spread agreement that the broadband Internet poses
serious risks and significant opportunities for the music and movie
industries and other makers of copyrighted digital content. CDT
agrees that copyrighted material should be protected against piracy
online. There are First Amendment interests on both sides.
Unwarranted copying, by denying creators and artists compensation
for their work, could adversely affect the free flow of information on
the Internet and end up diminishing the power of the Internet that
allows anyone to be a publisher.

But we are opposed to legislation that would mandate technical
standards or require that all computer hardware and software
include copy protection technology. We believe there is a better
approach through market-based solutions that protect both
copyright holders and consumers.

And before anything should happen, we believe there needs to be a
fuller exploration -- and education of policymakers, consumers and
the affected industries -- as to the technical implications and risks
of the schemes being proposed. Also needed is a much broader
consensus as to what consumer uses are permitted under
current law and how those uses would be protected.

In this context, the Hollings legislation raises a host of issues,
ranging from the appropriate scope of the "fair use doctrine" (which
has always permitted consumers some latitude in making copies
of copyrighted material for personal use) to the potential impact on
technology innovation of a government mandate requiring that all
new technology include a particular copy protection scheme.

Nevertheless, it seems clear that the hearings have brought into the
mainstream the issue of whether the content companies' legitimate
concern about infringement will require new mandates on technology
companies to redesign their products. It is also clear that more
narrowly crafted measures, such as those alluded to by AOL Time
Warner's Parsons, are on the horizon.

------------------------------------------------------------------------
(5) LEAHY URGES CAREFUL CONSIDERATION, SEEKS PUBLIC
INPUT

Sen. Leahy made clear at his committee's hearing that there is
significant disagreement among legislators as to whether it's yet
even appropriate for Congress to be considering mandating a
copyright security standard, and the Senator further promised that
no legislation of the sort that Sen. Hollings had circulated will
emerge from Congress this year.

To accompany the March 14 hearing, the Judiciary Committee staff
has set up a new webpage designed to keep interested parties,
including individual citizens, informed about developments on the
copyright/technology-policy front. In an important step for digital
democracy, the webpage also solicits citizens' direct feedback.

CDT urges all Internet users to visit Sen. Leahy's site and express
their views on this issue, which may do much to define the future
shape and functions of the Internet.

The Leahy webpage can be found at
http://judiciary.senate.gov/special/feature.cfm.

------------------------------------------------------------------------
Detailed information about online civil liberties issues may be
found at http://www.cdt.org/.

This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/pp_8.06.shtml.

Excerpts may be re-posted with prior permission of ari at cdt.org

Policy Post 8.06 Copyright 2002 Center for Democracy and
Technology

 

   
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