Background: Ben S. Knowles, LCA (adric) is a technologist and researcher in the Atlanta, Georgia area. In high school, he competed at the national level in Constitutional Law. He is a professional computer security consultant, a certified Linux administrator, and has lectured lower division Mass Communications, Political Science, and Computer Technology classes on Digital Media and Intellectual Property Law. Ben is CIO of Dream Synthesis Consulting LLC and may be reached there at firstname.lastname@example.org.
If my tone does not seem appropriately respectful in my address to the commitee, please understand that it is personally distressing to me that a bill so misguided and unbalanced was ever introduced.
From Congressional Record
transcript from http://cryptome.org/s2048.txt
with argumentative annotations by Adric
SEC. 2. FINDINGS. The Congress finds the following: (1) The lack of high quality digital content continues to hinder consumer adoption of broadband Internet service and digital television products.
No. Consumers do not have broadband access because of their telephone companies and cable companies, and because of regulatory tangles which date back to before the Telecommunications Act of 1996. These services are not provided because the monopoly provided by the government to cable and telephone providers is being extended to cover data services. It has little or nothing to do with "content" availabilty. See "Content Is Not King" by Andrew Odlyzko at http://firstmonday.org/issues/issue6_2/odlyzko/ for an excellent debunking of the myths about content.
(2) Owners of digital programming and content are increasingly reluctant to transmit their products unless digital media devices incorporate technologies that recognize and respond to content security measures designed to prevent theft.
So what? Content providers are not the electorate, nor do they make up very much of any representative's constituency. Copyright violation is already illegal. Under the more unconstitutional provisions of the DMCA (1998), tools which _might_ be used for copyright violation are prohibited from being distributed. Why should the American populace give away still more of our freedom of expression? To try and keep afloat monopolistic industry's trade groups (RIAA, MPAA) whose business models still do not reflect the technological reality of the 1990s? Also please note that DRM technologies, even when properly implemented prevent the use of Fair Use rights without preventing illegal copying. (Example: DVD movies are readily copied and sold on the street without use of any computer or networked device. No software is needed to "break" the security system, the DVDs are simply copied by DVD production equipment.)
(3) Because digital content can be copied quickly, easily, and without degradation, digital programmers and content owners face an exponentially increasing piracy threat in a digital age.
Piracy happens in the South China Sea. The U.S.A. has not been at war with pirates since the Barbary Coast (turn of the nineteeth century). Copyright violations are illegal already, if not twiceover. The copyability (?) of digital content is what makes these media so powerful. Any individual can now exercise their freedoms of speech, press and assembly with inexpensive technology and network access to create new "content". It is this "independent" production of music, movies, et al that is where innovation and creation happen, that the new ideas vital to our systems of philosophy and government emerge. Mandatory DRM would stifle these new creators (to the advantage of the old creators) and does not cut down on illegal copying. Look at how the microcomputer software business handles (or ignores) the problem of illegal copying.
(4) Current agreements reached in the marketplace to include security technologies in certain digital media devices fail to provide a secure digital environment because those agreements do not prevent the continued use and manufacture of digital media devices that fail to incorporate such security technologies.
The "agreements reached" fail because the technologies are unsound, the purpose of the standard unclear, and because the companies are all competitors. Also note that the companies responsible for these "agreements" such as DVD-CSS are publishers and distributors of "content", not creators or artists. To take the example of the DVD-CSS, not only was the security poorly implemented (some talented teenagers in northern Europe proved that), but as an added bonus to preventing copying, the spec also includes Region Encoding. This allows movie companies (say) to sell the same movie, on the same format (DVD) in several different regions of the world at markedly different prices, and technologically prevents the free market from correcting it. (Incidentially, this sort of price fixing is illegal under international trade regulations, AFAIK. ) (A simillar scheme for video games has resulted in a large "grey market" for Japanese and European video games and accessories, although Sony Corp. is attempting to stifle this trade with the DMCA.)
(5) Other existing digital rights management schemes represent proprietary, partial solutions that limit, rather than promote, consumers' access to the greatest variety of digital content possible.
Well, that's true. DVD-CSS discourages Fair Use by educators, critics and security researchers, et al. and in combination with DMCA, it moves from discouraging it to criminalizing it federally.
(6) Technological solutions can be developed to protect digital content on digital broadcast television and over the Internet.
Sure, they probably can. In the meantime, artists are creating new work and distributing it with these new technologies already, some for profit and some not. They don't seem to have required a mandate from the Congress. Examples abound, but try short film site AtomFilms: http://atomfilms.shockwave.com/af/home/ and graphic novel Broken Saints http://www.brokensaints.com/ . If you need examples of profit driven businesses distributing with Internet media, look no father than the pornography business, which is doing quite well online.
(7) Competing business interests have frustrated agreement on the deployment of existing technology in digital media devices to protect digital content on the Internet or on digital broadcast television.
Yes. All of the players are trying to position themselves so they hold the kind of position in digital TV that Microsoft Corp. holds over desktop computer software. This is not a justification for federal government action. Either they can all learn to share the playground, or not. The market will decide such things, if allowed to, and if a vaguely level playing field is maintained.
(8) The secure protection of digital content is a necessary precondition to the dissemination, and on-line availability, of high quality digital content, which will benefit consumers and lead to the rapid growth of broadband networks.
No. People don't have broadband because it is unavailable or too expensive (see above), not because there is nothing to watch. This argument may apply to HDTV, but I doubt it. The government has extended new spectrum to broadcasters, who have mostly failed to utilize it for HD broadcasts. Shockingly, with nothing on the air to watch, only a few consumers are willing to shell out more than $ 10,000 USD for a HD TV.
(9) The secure protection of digital content is a necessary precondition to facilitating and hastening the transition to high-definition television, which will benefit consumers.
No. The broadcasters are stalling and hoping to put off HDTV indefinitely, because conversion to HD broadcast is expensive and because they see convergence, PVRs, and Internet technologies obsoleting their old business models. The ad-supported televison industry of the second half of the 20th century (CE) cannot survive when consumers can choose not to see ads and can time-shift programming as they like. New funding models will need to be found for TV as we recognize it to continue or (more likely) televison will be replaced in our culture by newer (more interactive?) media. If broadcasters are allowed to multiplex analog signals into the spectrum given them for HD deployment then there will be no benefit to consumers, and little to television manufacturers.
(10) Today, cable and satellite have a competitive advantage over digital television because the closed nature of cable and satellite systems permit encryption, which provides some protection for digital content.
Huh? There is no other kind of digital televison besides cable and DBS. The hardware scrambling of cable and DBS signals seems to protect these systems from unauthorized viewing only slightly more than in the 1980s. Lots of people pay for channels from one or both sources, and a few steal.
(11) Over-the-air broadcasts of digital television are not encrypted for public policy reasons and thus lack those protections afforded to programming delivered via cable or satellite.
Huh? This doesn't make any sense. What "public policy reasons" are those? Perhaps because it is quite expensive and fairly pointless to scramble signals that are government mandated to be accessible by everyone. It becomes even more ridiculous to consider such a thing when reminded that the spectrum is being provided to the broadcaster in exchange for providing programming to the populace, who own it collectively. If it is already theirs, why does it need copy protection?
(12) A solution to this problem is technologically feasible but will require government action, including a mandate to ensure its swift and ubiquitous adoption.
No. Well, maybe. What problem? DBS and cable systems advantage over imaginary DV broadcasts is not a problem, per se. Now, if the problems is continued multi-billion dollar revenue for movie distribution companies at the expense of other businesses and consumer rights (*sarcasm*) then, sure, a government regulation with gives them unfair advantage over smaller companies and individuals would solve that "problem."
(13) Consumers receive content such as video or programming in analog form.
Yes, if we restrict our definition of "content" and "receive" so that we are only talking about broadcast television. Unless you are talking about how human sense organs process input.. On the other hand, I will be sending this transmission digitally, and you may well view it the same way (or here: http://www.livejournal.com/talkread.bml?journal=adric&itemid=35408 ).
(14) When protected digital content is converted to analog for consumers, it is no longer protected and is subject to conversion into unprotected digital form that can in turn be copied or redistributed illegally.
Yes. Once I have seen something on television, or read a book, I can communicate those ideas to others, which is precisely why the idea of copyright was included in the Constitution. New ideas are of sufficient value to the populace that they deserve some protection. Hardware DRM won't work until consumers have to individually jack their brains into the cable box and authenticate their identity. No, wait, that won't work either. Hardware DRM does not prevent illegal copying and distribution, but it sure does cut down on independent production and distribution of "content." It also make archiving and backup functionally impossible, and causes many problems for libraries and librarians (see for instance http://www.google.com/search?q=cache:4NM24Ago2K8C:www.law.columbia.edu/conferences/2001/pres_gasaway.doc+librarians+DMCA&hl=en ).
(15) A solution to this problem is technologically feasible but will require government action, including a mandate to ensure its swift and ubiquitous adoption.
Ok, again: The computer software industry tried and all but abandoned hardware copyright protection over the last twenty or so years. Hardware requirements such as dongles annoyed users, who bought from companies who didn't use them, and physical copy prevention violated users backup rights and occasionally damaged their hardware. Lawsuits settled that matter quite expensively. Now, only the most expensive software packages require such "hoop-jumping" for legimate users and these products are still copied illegally. Most software includes token measures to encourage user honesty. There is also an entire sub-industry of software being distributed under copyright which allows and encourages sharing of software. ( http://www.opensource.org ) The non-OSS software publishers are engaged in a constant arms race with the "warez" community which gleefully breaks every new attempt at copy protection. Despite this, and an alarming amount of illegally copied software used in businesses, the software business is booming. (Is Mr. Gates or Microsoft Corp. hurting for money ? Also check with Symantec, Adobe, et al). Please note that this was all sorted out, for the most part, by market forces without direct government intervention.
(16) Unprotected digital content on the Internet is subject to significant piracy, through illegal file sharing, downloading, and redistribution over the Internet.
Again, "Piracy" == "killing people and stealing ships". But onto internet file sharing ...
(17) Millions of Americans are currently downloading television programs, movies, and music on the Internet and by using ``file-sharing'' technology. Much of this activity is illegal, but demonstrates consumers' desire to access digital content.
Put another way: The citizenry liked Napster, even as poor a product as it was. The American people want to use new technology to access media. They will pay for it if able, but when asked to choose between free (of questionable legality) and expensive (but doesn't work with what they have) they will stick with older technologies which preserve their rights to time shift, change formats, and back-up. Also, please note that the average American citizen has illegally copied software installed on their computer(s), as do many businesses, and citizens, including government employees, every day purchase and traffic in "bootleg" videos, CDs, and DVDs. This is not a reason to further criminalize these behaviours, but rather to de-criminalize them, either by rolling back the laws or by finding ways for these people to get the media they want without breaking any laws.
(18) This piracy poses a substantial economic threat to America's content industries.
No. During the time Napster was running, CD sales broke new records and the music publishing business was doing quite well. Even now, people buy CDs at prices they know to be artificialy inflated (see antitrust actions against music distributors over retail CD price fixing, http://news.com.com/2100-1023-244195.html?legacy=cnet ) to get music from artists they want to support. A small population of people have started utilizing fledgling technologies to compensate the artist for the work ( http://www.fairtunes.com/ ), leaving out the greedy middleman ( http://www.recordingartistscoalition.com/index.html ). This disintermediation is one of the great powers of these new technologies, and it is feared greatly by the middlemen.
(19) A solution to this problem is technologically feasible but will require government action, including a mandate to ensure its swift and ubiquitous adoption.
Bah. The Congress should stay out of the business of developing technology and stick to more pressing issues such as the War on Terrorism and the War on [Some] Drugs. The market and technology researchers are quite capable of designing technologies to fit customer demand (MPEG, JPEG, PNG, Ogg Vorbis, TCP/IP, HTTP, et al)
(20) Providing a secure, protected environment for digital content should be accompanied by a preservation of legitimate consumer expectations regarding use of digital content in the home.
Yes. Any law should preserve and enhance existing rights such as Fair Use, time shifting, format shifting, et al. Please note that consumer expectations now include Napster-like access to music, and streaming media broadcasts uncrippled by copyright tariffs.
(21) Secure technological protections should enable content owners to disseminate digital content over the Internet without frustrating consumers' legitimate expectations to use that content in a legal manner.
Yes. Of course they can already do that, and I am doing it right now.
(22) Technologies used to protect digital content should facilitate legitimate home use of digital content.
Yes. Neither new law nor new technology should take recognized or unrecognized freedoms from the people.
(23) Technologies used to protect digital content should facilitate individuals' ability to engage in legitimate use of digital content for educational or research purposes.
Yes. This would of course require overriding or repealing several chunks of the DMCA, particularly in the bits about Anti-Circumvention technology devices, which have already effectively prevented security research. See Dug Song's security research page, the US v Elcomsoft case, the Felten case, or read security expert Bruce Schneier on the DMCA: http://www.counterpane.com/crypto-gram-0108.html#6
The Anti-DMCA Website: http://anti-dmca.org/
The Electronic Frontier Foundation: http://www.eff.org/
Digital Consumer Dot Org: http://www.digitalconsumer.org/
"The Right to Read" by Richard M. Stallman, reprinted at http://www.fsf.org/philosophy/right-to-read.html and it's endnotes and references
_Anthem_ by Ayn Rand. In paperback ( ISBN: 0451191137 ) or online ( http://melissa.nfr.net/~nav/unpress/rand,ayn/anthem.html )