A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY
CONTENTS:
(1) FCC Enters Copyright Debate, Seeks Public Comments
(2) Hollings Bill on Digital Rights Management Stalled
(3) Is the Broadcast Flag a Precursor to Broader DRM Mandates?
(4) User Privacy Also an Issue in RIAA v. Verizon Dispute
(5) Make Your Voice Heard in the Copyright Debate
As Congress returns from its summer recess, a major debate is unfolding in Washington over future consumer uses of digital programs and content, and digital copyright protection.
The Federal Communications Commission (FCC) has entered the growing debate about copyright policy, asking whether the government should play a stronger role in regulating digital technologies that copyright holders see as threatening control over their intellectual property.
The FCC action came in the form of a Notice of Proposed Rulemaking (NPRM) about something called "the broadcast flag." This is a proposed standard for "marking" commercial digital TV content. VCRs, DVDs and other consumer technologies could be built to "look for" the broadcast flag and limit consumers' ability to make copies of digital-broadcast television programs.
The NPRM, released on August 9, 2002, seeks input from consumers as well as the affected industries on whether a broadcast flag system should be mandated by the government, and if so how. Comments are due by October 30, 2002.
CDT and other public interest groups have urged the FCC to consider the impact such a standard would have on reasonable copying for personal use and the continuing usefulness of consumers' electronic and computer equipment.
The FCC notice is online at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-231A1.txt
The press release from CDT, Public Knowledge, and Consumers Union responding to the FCC notice is at http://www.cdt.org/press/020807press.shtml
To aid consumers in making their voices heard in this important debate, CDT has created an online resource that you can use to electronically file comments at the FCC. See more about this online comment resource below.
This Policy Post offers some background on this complex but far-reaching issue.
Earlier this year, the debate over digital rights management focused on a bill drafted by Senate Commerce Committee chairman Ernest "Fritz" Hollings (D-SC). Sen. Hollings' bill, named the Consumer Broadband and Digital Television Promotion Act (CBDTPA), would have broadly required that digital devices have a built-in "copyright monitor" that prevents the unauthorized or unlawful copying of protected works. The bill would have covered a wide range of consumer technologies -- from personal computers to MP3 players, from CD burners to Personal Digital Assistants to future incarnations of TiVo and ReplayTV.
Some backers of the Hollings bill claimed that its purpose was simply to compel the content community and the technology community to work better together in developing solutions for protecting copyrighted works in the digital world. But the bill generated significant public criticism, in part because of its breadth, and it seems unlikely to pass this year.
For more information about the Hollings bill, see CDT's April 5, 2002 Policy Post: http://www.cdt.org/publications/pp_8.06.shtml .
In comparison to Sen. Hollings' CBDTPA, the broadcast flag is a relatively narrow concept focused on digital television. But it poses the question of whether the government should require that future TVs - and anything that can receive a TV signal, including computers - must be designed to look for the broadcast flag and limit consumer copying accordingly. That, in turn, raises serious questions about the impact on consumers' ability to continue to use their current computers and DVD players and other equipment on copyright-protected material and to copy and manipulate legally-acquired content for personal use, in ways that digital technology empowers them to do.
The debate not only affects consumers, but also puts several important industries at odds. A policy that goes too far in limiting technologies in order to protect copyrighted works may hurt the consumer electronics, information technology, and telecommunications industries, while the producers of content (the film, music, book, and software industries) could be hurt by a policy that ignores the harm that copyright infringers can do armed with computers and facilitated by the global Internet.
The recent flurry of attention surrounding the broadcast flag proposal has been generated by policymakers' eagerness to speed the transition of broadcast television from lower-resolution analog TV (what we view now) to higher-resolution digital TV. Content companies have argued that a broadcast-flag scheme must be put in place before they can safely release high-quality digital content to be broadcast in the clear over the public airwaves. Their concern is that it will be relatively easy for copyright infringers to capture high-quality digital broadcasts, and infringing copies will flood the Internet and "pirate" marketplaces around the world.
Earlier this summer, the staff of the House Commerce Committee and its chairman Rep. Billy Tauzin (R-LA) asked CDT, Public Knowledge, and Consumers Union to comment on the broadcast-flag proposal from a consumer perspective. In our comments, we made the following points:
The comments of CDT, PK and CU are online at http://www.cdt.org/copyright/020719bpdg.pdf
The privacy of ISP subscribers has also become an issue in the copyright debate this September. In a lawsuit in U.S. District Court in Washington, the Recording Industry Association of America has sued a major ISP, Verizon, to reveal the identity of a customer allegedly using a peer-to-peer trading system to share copyrighted songs on his or her computer.
At issue is a provision of the Digital Millenium Copyright Act which requires ISPs to reveal a subscriber's identity based on allegations of infringing material placed on the ISP's systems (such as chat groups or web hosting.) This subpoena power has not been widely used to reveal the identity of subscribers based on material they might have solely on their own computers.
CDT believes that major privacy concerns are raised by allowing any copyright holder (a huge number of people) to compel disclosure of the sensitive identity information of any Internet user, based on a mere allegation that a copyright has been infringed on the users own computer. These disclosures happen without any notice to the user or any meaningful opportunity to challenge the subpoena. CDT commends Verizon for defending the privacy of its users. We look forward to finding a more balanced approach to meeting copyright owners' requests for information.
As copyright-related issues move to the forefront here in Washington, consumers need to pay attention. At the heart of these debates is this question: Now that computers and the Internet have made it easy to copy copyrighted works, what kinds of limits should the law put on these technologies in order to protect against the threat they pose for the copyright industries?
The answer to this question will unquestionably have an impact on ordinary citizens. We value the creative works produced by copyright holders, but we also have come to expect to be able to use those works -- especially the copies we pay for -- in increasingly flexible ways (as when we time-shift a favorite TV show with a personal video recorder or "burn" a collection of songs from albums we own to make a dance mix on CD). These new technologies have already proved to be exceedingly empowering for ordinary individuals who see computers and the Internet not as a means of getting music for free but as new channels for creativity, inquiry, self-expression, and democracy itself.
These are values policymakers must consider and preserve as they develop solutions for new copyright problems in the digital age.
The FCC acknowledged the importance of considering the consumer impact of any technology mandate and raised in its notice many of the same questions that we raised in our response to Chairman Tauzin.
Now you can make your voice heard. For more information on the FCC notice and an online comment submission form, please visit http://www.cdt.org/action/copyright/
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_8.18.shtml.
Excerpts may be re-posted with prior permission of ari@cdt.org
Policy Post 8.18 Copyright 2002 Center for Democracy and Technology
