The Congressional Corral

The future of digital technology is in the hands of the U.S. Congress

Illustration: Greg Mably

Rip. Mix. Burn. Empowering freedom...or simple piracy? For now, technologies for ripping, mixing, and burning are lawful to manufacture and distribute in the United States. But for how much longer? The motion picture industry, among other groups of copyright holders, wants Congress to mandate that standard technical protection be installed in all digital media devices. In March 2002, Senator Ernest ("Fritz") Hollings (D-S.C.), with the endorsement of Senator Dianne Feinstein (D-Calif.) and others, introduced legislation to do just that.

His Consumer Broadband and Digital Television Promotion Act (CBDTPA) would give representatives of technology companies, copyright holders, and consumer groups 12 months to agree on such "standard technical measures." The act would require the Federal Communications Commission (FCC) to conduct a rulemaking that would lead to the requirement that a standard protection measure be embedded in every digital media device. This latter term is broadly enough defined to include general-purpose computers. Making or distributing digital media devices without the standard measure, or removing or altering the measure, would be illegal and, if done for profit, would be a felony.

special report copy protection graphicCBDTPA is unlikely to be enacted any time soon, now that the recording industry has allied itself with the Business Software Alliance and the Computer Systems Policy Project (both in Washington, D.C.) against government mandates of such measures. However, the motion picture industry may well persuade the FCC to adopt the so-called broadcast flag technology as a mandatory standard for digital TV tuners and related technologies; the FCC is considering it now. This would require tuners to recognize a digital flag embedded in broadcast signals indicating that the signals cannot be redistributed to any device lacking specified standard security measures. Makers of all sorts of products for home entertainment systems would be affected.

Philips Electronics North America Corp. (New York City) is not pleased with the proposed broadcast flag. In its reply to the FCC, it asserts that if the proposal were adopted, it "would require the FCC to impose an invasive regulatory regime affecting virtually all consumer electronics devices and computer equipment within the home network."

But such rules are not entirely new. Two government mandates of technical measures to protect copyrighted works already exist in U.S. law. One is the 1992 Audio Home Recording Act, which requires consumer digital audio recording devices to contain serial copy management system (SCMS) chips, which allow unlimited first-generation digital copies, but degrade second- and third-generation digital copies. The second is in the 1998 Digital Millennium Copyright Act (DMCA), which requires makers of videotape recorders to install Macrovision's copy control technology to prevent unauthorized copying.

Universal adoption of standard technical protection measures could also come through standards-setting by industry groups. This would have virtually the same effect in the marketplace as a legislative mandate, but happen without input from consumers. For instance, the motion picture and consumer electronics industries reached agreement in 1995 on the content scramble system (CSS) as a standard technical protection measure for DVD discs and players. According to this agreement, CSS must be installed in all DVD players as a condition of the license granted for key patents on DVD components. Standards-setting processes concerning digital rights management (DRM) technologies, which identify content and restrict its usage as designated by the copyright holder, aim for similar results.

It's already against the law in the United States and some other nations to break copy protection like CSS, because the DMCA prohibits circumvention of technical measures used by copyright owners to control access to their works. (The European Union's directive on copyright and the information society forbids all acts of circumvention, and unlike the DMCA, it makes no exceptions, not even one for encryption research.) Related rules forbid manufacture and distribution of technologies primarily produced to circumvent any access controls. Seemingly, Congress intended to allow reverse engineering of use or copy controls to enable fair and other noninfringing uses. But this intent has been undermined by widespread adoption of persistent access controls, such as CSS, so that any reverse engineering—even of one's own DVD to make a fair-use clip of a movie—arguably violates the DMCA rules. (Although the European Union directive contains no fair-use hacking exceptions, the laws of Australia and some other nations seem to permit it.)

Representative Zoe Lofgren (D-Calif.) introduced in the House a bill to amend the DMCA to allow such fair-use circumvention: the BALANCE (Benefit Authors without Limiting Advancement or Net Consumer Expectations) Act of 2003. Representative Rick Boucher (D-Va.) earlier introduced the Digital Media Consumers' Rights Act of 2002, which would permit circumvention for noninfringing purposes and also amend provisions against developing tools to allow scientific research that tight interpretations of the DMCA now make risky.

The outcome of these legislative battles is, at this point, not easy to predict. What can be foreseen is that it will affect not only what consumers do with technology, but also the very progress of technology itself.

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