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
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:
The Hollings bill is online at: http://thomas.loc.gov/cgi-bin/bdquery/z?d107:s.02048:
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?
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
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.
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/.
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Policy Post 8.06 Copyright 2002 Center for Democracy and Technology
