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Senate Bill Could Put Deep Freeze on Tech Innovation
The Business Journal of Phoenix
May 6, 2002

The image of Arizona software developers and computer programmers joining a march on Washington, D.C., might seem more like a scene from a movie than a possible reality. However, you can expect to see a Million Geek March later this year, if a bill recently introduced by U.S. Sen. Fritz Hollings gains momentum in Congress.

The bill, known as the Consumer Broadband and Digital Television Promotion Act, or CBDTPA, was drafted in an effort to curb the proliferation of pirated movies on the Internet and elsewhere. The bill, endorsed by the motion picture industry, makes it illegal to manufacture any digital media device that does not have copy protection technology embedded within it.

The law would apply not only to DVD players, but to digital cameras, MP3 players, personal computers, PDAs, as well as digital devices that have yet to be invented.

The CBDTPA would affect much more than would-be movie pirates. The sweeping prohibitions contained in the bill include criminal penalties that threaten to put a chill on technological innovation (if not drive it into the deep freeze).

As the computer industry has recognized, our information economy depends on the seamless transfer of information from person to person and from business to business.

Mandating copy protection technology for all digital media restricts avenues for innovative information exchange, such as peer-to-peer sharing systems, which have the potential to increase business efficiencies. Because the law would add a stifling layer of complexity to technology, Intel, IBM and Hewlett-Packard all have come out against the bill.

With the possibility of severe fines or jail time, potential technology innovators are sure to be deterred if the bill becomes law. For example, the Department of Justice sent a strong signal to future innovators last summer when it arrested Dmitry Sklyarov after he came to this country to make a presentation at a computer security conference. Sklyarov is a Russian programmer who had designed a piece of software that bypassed copy protection for e-books, thus allowing consumers to copy their legitimately purchased e-books to other formats. Both he and the company he worked for were criminally indicted because of his program.

If passed, the CBDTPA would expand the pool of potential "criminals" greatly decreasing the amount of innovation. In addition, artists, musicians, academics, scientists and researchers could find their ability to make non-infringing use of copyrighted material -- what the law refers to as "fair use" -- severely restricted by the bill.

Although the CBDTPA pays token attention to the notion of fair use, as a practical matter the bill effectively would eliminate the practice. By banning the manufacture or sale of tools and technologies that permit any copying, the right to make fair use of copyrighted material becomes an empty right.

The bill also could have an effect on the consumers it purports to serve. Music consumers have made extensive use of "space-shifting." A common example of space shifting is copying a legitimately purchased CD to an MP3 format. Anyone who has tried to listen to a CD while jogging down the street can appreciate the comparative stability and lightness of the MP3 player.

If the CBDTPA passes, space-shifting could become a thing of the past. Consumers will have to buy the same piece of music for each different digital media device they own. The same holds true for movies, e-books, or other forms of digital information consumers may buy.

Perhaps the most troublesome thing about the CBDTPA is the potential for abuse of expired or even non-existent copyrights. Imagine, for example, that the Louvre decided to put a computer chip on the Mona Lisa that sent out an "anti-copy" signal.

If Sen. Hollings' bill passes, it could be illegal to manufacture a digital camera that did not recognize that signal and prevent the camera from snapping the picture. Or, let's say the Louvre embodied anti-copy software code in the picture of the Mona Lisa on its Web site. It would be illegal to produce a Web-browser that did not recognize that code and prevent the creation of a copy for your computer desktop.

Incredibly, your digital camera would not operate and your browser would not copy despite the fact that the Mona Lisa is not even protected by copyright. Da Vinci's painting belongs to what the law refers to as "the public domain." That means that the image of the Mona Lisa and many other pieces of artistic, literary and other expression belong to you and me -- the public.

Ironically, the bill is supposed to help consumers by encouraging the production of digital programming and content. The bill declares that threat of widespread piracy has slowed the development of digital television.

The studios predict serious harm to the industry if devices that permit digital copying are allowed on the market. Yet, the motion picture industry has made arguments like this before. In 1984, the television and movie industries sued to prevent the marketing of another copying device.

Today, industry executives should be thanking their lucky stars each and every day that they lost that case. The nefarious and threatening device was the VCR. It goes without saying that the VCR has provided an extraordinarily lucrative source of revenue for the studios over the past two decades with the number of movie rentals soaring over that period.

While the motion picture industry has a right to be concerned about digital piracy, this bill is not the right fix. It will prevent the production of tools that allow for lawful copying.

It is not good for business, consumers, or the public. The computer industry is rightly lobbying against passage of the bill. Arizona business leaders and consumers should do likewise and prepare to lace up their sneakers and dust off their pocket protectors for the Million Geek March.

 

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