ALERT: Congress Calls For Public Participation on Digital Music Issues

Submit Comments Opposing Technology Mandates

(Issued: Friday, March 22, 2002 / Deadline: Monday, April 8, 2002)

Introduction:

Imagine a world where all digital media technology is either mandatory or forbidden -- Senator Fritz Hollings and a cabal of Hollywood entertainment interests are cooking up a set of laws aimed at conjuring this apocalyptic world into existence.

Today, Senator Hollings introduced the alarming Consumer Broadband and Digital Television Promotion Act (CBDTPA), which will give Hollywood plutocrats the power to stall new digital media technologies for a year, negotiating a phony "consensus" at lawyer-point with technologists. This "consensus" will receive the force of law, prescribing which user-hostile features are mandatory and which innovative features are forbidden. CBDTPA is derived from the draft SSSCA (Security Systems & Standards Certification Act), the subject of our last alert.

Both the House and the Senate have called for comments on the future of digital music, an issue that is deeply entwined with technology mandates.

What YOU Can Do Now:

This is YOUR chance to voice your opposition to laws that make all digital media technology mandatory or forbidden.

Send the EFF letter below to both the House and the Senate. Feel free to use this letter verbatim, or modify it as you wish. Please be polite and concise, but firm.

The Senate Judiciary Committee's Chairman Patrick Leahy and Ranking Republican Member Orrin Hatch are accepting comments via a form at:

http://judiciary.senate.gov/special/input_form.cfm?comments=1

The House Judiciary Committee Subcommittee on Courts, the Internet & Intellectual Property is accepting comments by email and fax, addressed to the Chair:

Hon. Howard Coble

howard.coble@mail.house.gov

fax: +1 202-225-3673

For information on how to contact your legislators and other government officials, see EFF's "Contacting Congress and Other Policymakers" guide at:

http://www.eff.org/congress.html

Join EFF! For membership information see:

http://www.eff.org/support/

Sample Letter:

Dear Senator Leahy, Senator Hatch, and Representative Coble:

I am writing to you today to express my concern at the growing trend to impose governmental technology mandates at the behest of the entertainment industry.

The introduction of the CBDTPA by Senator Hollings illustrates the inevitable conclusion of such mandates: a world where all digital media technology is either forbidden or compulsory. CBDTPA grants veto power over new technologies to the special interest groups who have opposed innovation since the Betamax fight.

Technology mandates are anti-consumer, treating us all as potential criminals and punishing us in advance for infringements we haven't committed. They are inevitably used to strengthen copy-prevention ("digital rights management") technologies that give disproportionate power to vendors, stripping us of our traditional fair-use rights, restricting our power to back up, sell, loan, transfer, and format-shift the products we've purchased.

Technology mandates are anti-innovative, stalling all new designs in lengthy one-sided "negotiations" where the entertainment industry can strong-arm technologists into adopting anti-customer "features."

Technology mandates hurt American companies by imposing expensive design requirements and lengthy design reviews. Foreign competitors are exempt from these restrictions, a situation that harms exports and will create a grey market for uncertified technologies from abroad.

I urge your committee to reject anti-consumer, anti-innovative, anti-competitive technology mandates, especially the CBDTPA and the "mini-CBDTPA" that is in the offing to give force of law to the "consensus" developed by the Broadcast Protection Discussion Group for digital TV standards.

I further urge you to repeal the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). Never used to prosecute anyone accused of infringing copyright, in practice these provisions have chilled the speech of computer scientists, stifled journalistic criticism, and prosecuted computer programmers and the companies for which they work.

Please, do the right thing for consumers, innovation and American business.

Sincerely,

[Your name;

include full address for maximum effectiveness]

Tips:

Please remember to be polite but firm. Ranting, swearing, or lack of clear focus and resolve will not make a good impression. Try to make it brief and clear, without getting into nitpicky details. Re-casting the letter in your own words will be more effective than copy-pasting our sample.

Activists Around the World

This alert is primarily for U.S. residents. However, this issue is of importance globally, so keep an eye out in your own jurisdiction for related matters you can act on.

CAFE Campaign:

This drive to contact your legislators about the CBDTPA and the threats it poses to fair use and innovation is part of a larger campaign to highlight intellectual property industry assaults against the public's fair use rights, and what you can do about it.

Check the EFF Campaign for Audivisual Free Expression (CAFE) website regularly for additional alerts and news:

http://www.eff.org/cafe/

Background:

The CBDTPA, Hollywood and Holling's bid to strangle the American technology industry, is just the latest salvo. Over the past year, the Copy Protection Technologies Working Group has convened the Broadcast Protection Discussion Group, which has been laying down the "consensus" on new digital television devices for a captive audience of representatives from electronics, software and computer companies.

These profoundly undemocratic proceedings sacrifice consumer rights, free speech and innovation on the altar of Hollywood's hysterical technophobia.

The CBDTPA promises a world where useful features would be eliminated if the possibility for their misuse existed, such as:

limits on "format-shifting," for example, the ability to create mix-CDs of music you've paid for;

controls built into hard-drives that would allow files to be labelled as "unmovable," so they could not be backed up, or moved to another machine, nor could the drive be effectively optimized;

restrictions on the manufacture and distribution of devices and programs that can play unrestricted formats, such as MP3 audio and DivX video files.

Senator Hollings, called "The Senator from Disney" for his close ties with Hollywood money, continues to push for technology mandates, federally imposed specifications for technologies that outlaw legitimate functionality in order to control illegitimate uses. It's the technological equivalent of requiring that crowbars be made of foam-rubber on the grounds that metal ones may be used in the commission of burglaries.

This is not the way that copyright law works. The Betamax decision, handed down by the Supreme Court in 1984, established the principle of "substantial non-infringing uses." The Betamax principle allows technologists to create tools that can be used for good, even if they can be used in other ways. It is an affirmation of the social good of innovation and of "fair use." Every technology company in the world depends on this affirmation -- it is the foundation of creative, innovative technology.

Incremental CBDTPA

After 2006, the FCC will require all over-the-air broadcasts to be digitally encoded. Under the pretext of preventing the "Napsterization" of their video signals, the MPAA has convened the Broadcast Protection Discussion Group (BPDG) of the Copy-Protection Technical Working Group (CPTWG). The BPDG's "standards," developed in concert with a group of arm-twisted representatives from major technology vendors, will specify flags controlling the public's ability to store, copy, and share digital TV signals.

When Senator Hollings held his hearings on copyright reform in early March 2002, he heard testimony from studio-heads and technologists that presented the BPDG's process as a model for future "cooperative" ventures between Hollywood and technologists. The BPDG's representatives explained that their measures would only safeguard copyright if their "standards" were mandated by government.

Any hint that this mandate would limit the freedom to innovate was downplayed -- if the standard is voluntarily arrived at by all the affected parties, where's the loss of freedom?

Yet the standard must be mandated if it is going to be effective. Consumers will not "voluntarily" choose to purchase restrictive technology if they have other choices, and technology companies would be foolish to invest in restrictive technology that consumers will not buy. The only way the investment makes sense is if there is no competing "open" technology choice for the consumers. And the only way to kill off competition from products consumer prefer is to makek those products illegal.

A mandated CPTWG standard is a clear abridgement of freedom. This "standard" has in reality been arrived at by a handful of players who exclude the press and have no means for receiving public comment. A mandated standard eliminates the ability for competing techniques to be tested in the marketplace. The public good is best served when vendors voluntarily adopt standards on the basis of consumer demand.

The scope of a CPTWG mandate was likewise downplayed. Receiving, storing, copying and transmitting DTV signals isn't merely the domain of set-top boxes. A CPTWG mandate would necessarily extend into the PC, requiring substantial integration with device drivers, operating systems, firmware and application APIs.

Links:

For more information about CBDTPA (and its older "parent", SSSCA), see:

http://www.eff.org/IP/SSSCA_CBDTPA/

For more information on the future of digital television, see:

http://www.eff.org/IP/Video/HDTV/

See also EFF's "Frequently Asked Questions (and Answers) About Fair Use":

http://www.eff.org/IP/eff_fair_use_faq.html

Declan McCullagh Wired News article on CBDTPA, "What Hollings' Bill Would Do":

http://www.wired.com/news/politics/0,1283,51275,00.html

About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to websites in the world:

http://www.eff.org

Contacts:

Robin Gross, EFF Intellectual Property Attorney

robin@eff.org

+1 415-436-9333 x112

Cory Doctorow, EFF Outreach Coordinator

cory@eff.org

+1 415 436 9333 x106

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