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List: dmca-discuss
Subject: [DMCA_Discuss] FC: Software group to Hollings: We don't want your CBDTPA bill!
From: "Jon O." <jono () networkcommand ! com>
Date: 2002-04-30 21:19:28
[Download RAW message or body]
----- Forwarded message from Declan McCullagh <declan@well.com> -----
Date: Tue, 30 Apr 2002 17:57:20 -0400
From: Declan McCullagh <declan@well.com>
To: politech@politechbot.com
Subject: FC: Software group to Hollings: We don't want your CBDTPA bill!
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X-URL: Politech is at http://www.politechbot.com/
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Think of this as more evidence of the north-south California split.
Software companies and Hollywood liked the DMCA. The folks at SIIA
embraced it, as they acknowledge below, along with the RIAA and
MPAA. But the northerners break with the southerners over Hollings'
CBDTPA.
Text of Hollings' Consumer Broadband and Digital Television Promotion Act:
http://www.politechbot.com/docs/cbdtpa/
Politech archive on the CBDTPA:
http://www.politechbot.com/cgi-bin/politech.cgi?name=cbdtpa
-Declan
---
From: "Richard M. Smith" <rms@computerbytesman.com>
To: <declan@well.com>
Subject: SIIA on the Hollings Bill
Date: Tue, 30 Apr 2002 16:22:38 -0400
FYI:
http://www.siia.net/sharedcontent/govt/issues/ip/letter4-30-02.html
---
Software & Information Industry Association - 1090 Vermont Ave NW
Sixth Floor - Washington, DC 20005
April 30, 2002
The Honorable Ernest F. Hollings
Chairman
Senate Commerce, Science and Transportation Committee
United States Senate
Washington, DC 20510
Re: S. 2048, Consumer Broadband and Digital Television Promotion Act
Dear Mr. Chairman:
The Software & Information Industry Association (SIIA) and its
predecessor organizations have been fighting digital piracy longer
than any other trade association in the world. During the 16 years we
have combated digital piracy we have gained invaluable experience as
to what anti-piracy policies are effective and what level and type of
Government involvement is appropriate and necessary. Based on our
years of experience in this area, we believe that S. 2048, the
"Consumer Broadband and Digital Television Promotion Act," is bad
policy and establishes unwarranted and intrusive level of Government
regulation into the development of technology.
S. 2048 would impose intrusive and unwieldy government regulations to
the detriment of the copyright community, the high-tech community and
consumers. The bill requires the government to be involved in every
step of the process and gives the Government the ultimate say in
determining what Digital Rights Management (DRM) standards will be
adopted and how they will be implemented today and into the future.
This is SIIA's most pressing concern with S. 2048. The marketplace -
not the Government - should determine who the winners and the losers
in the DRM space are. Only through competition in the DRM industry and
the stakeholders working together to develop mutually acceptable
standards for DRM solutions to the piracy problems will we get the
best DRM technology solutions. We, therefore, strongly urge you to
oppose S. 2048.
SIIA is the principal trade association of the software and
information industry. We represent about 800 high-tech companies that
develop and market software and digital content for business,
education, consumers, the Internet and entertainment. SIIA resulted
from a merger of the former Software Publishers Association (SPA) and
the Information Industry Association (IIA) in January 1999. In 1985,
SPA began a comprehensive, industry-wide effort to fight software
piracy. Through the years, as technology and business practices have
changed so has our approach to anti-piracy activities. Today, SIIA
conducts a wide range of anti-piracy activities, including litigation,
end-user education and the development of software management tools.
SIIA has long been an advocate for strong intellectual property
protection. For years, we have pushed for Congress to enact laws that
help us effectively combat rising piracy rates throughout the United
States and abroad. Most recently, SIIA supported Congressional passage
of the Digital Millennium Copyright Act (DMCA) in 1998 to help SIIA
and its members, and other copyright owners, fight new forms of
digital piracy. During deliberation of the DMCA, Congress, as well the
Administration and the stakeholders, rejected proposals that would
have required technology producers and service providers to
incorporate unilaterally-adopted security technologies into their
digital products and services. As evidence of this, section 1201(c)(3)
of title 17, United States Code, includes a provision that makes clear
that the DMCA does not, as a general rule, "require that the design of
a consumer electronics, telecommunications, or computing product
provide for a response to any particular technological measure " that
is unilaterally adopted. This is often referred to as the "no mandate"
provision of the DMCA. Of course, this "no mandate" provision does not
prevent the high-tech and content industries from working
cooperatively to develop guidelines or rules for incorporating
"standard security technologies" into their digital products and
services to protect against piracy. But S. 2048 goes too far by
requiring that no "digital media device" be sold or no "interactive
computer service" be used unless security technologies are
incorporated into such device or service.
Although technologically much has changed since the DMCA was enacted
in 1998, the reasons for including this no mandate provision and not
burdening technology producers and service providers are still true
today. What Congress rejected in 1998 as bad policy, remains bad
policy today. Nothing has changed to warrant a wholesale
reconsideration of these issues or to warrant undoing the compromise
reached in the DMCA. In short, there is no reason to reverse course on
this very important and complex issue by imposing on the high-tech and
copyright industries the government-created and imposed standards
required by S. 2048.
In addition, it is also significant to understand that the DMCA is
still very much in its infancy. We are just beginning to see companies
incorporate the technological protections afforded by section 1201 and
1202 of the DMCA into their business models to create new and unique
ways for getting their products and services to their customers. We
are just beginning to see the DMCA (and the Copyright Act) being used
in the civil and criminal context to effectively shut down well-known
digital pirate operations and to see the courts apply and interpret
provisions of the DMCA and determine how these provisions will apply
to different authorized and unauthorized business schemes. And
perhaps, most significantly, we are just beginning to see the public
availing themselves of products and services made available because of
the technological protections afforded by the DMCA. It would be
premature to enact any legislation for the purpose of promoting
broadband, digital television or any other nascent digital
distribution mechanism until there is an opportunity for the DMCA to
get its "sea legs" and to fully understand the impact that the DMCA
has had on piracy and the marketplace for copyrighted content (or
until such time as collective agreement is reached by the stakeholders
on the appropriate and necessary technological solutions).
One significant problem with S. 2048, among many, is that it fails to
recognize that the marketplace - not the Government - is the best way
to develop the technological solutions to the specific piracy problems
related to promoting broadband and digital television. With vast
technological changes taking place over the past few years, new
markets and business models for digital goods and services that take
advantage of the Internet and other advances in digital technologies
are just beginning to take root. With each passing day, the Internet
provides consumers with more options, more alternatives and more
opportunities than ever before. It has only been in the last several
years that consumers could tap into the vast resources increasingly
available on public and private networks. And it is only in that short
time frame that businesses, schools and universities, and individuals
have begun to provide a wide range of copyrighted products and
services to previously unreachable audiences.
With business models evolving so rapidly, it would be unwise to
attempt to craft a new and complicated framework of government-imposed
mandatory security measures, as S. 2048 attempts to do, merely to
address concerns that are likely to be rapidly addressed as the
marketplace for copyrighted works and anti-piracy technologies evolve.
For example, of the three piracy problems that S. 2048 attempts to
address, we understand that two of them - preventing free digital
television broadcasts from being illegally redistributed and
preventing analog outputs from digital devices (i.e., filling the
"analog hole") - are well on their way to being resolved by the
stakeholders. Of course, once these issues are resolved by the private
sector, limited government involvement may - at that time - be
appropriate to promote confidence that technological solutions agreed
to by the stakeholders can be enforced to combat piracy problems. As
to the third piracy problem - halting the illegal distribution of
copyrighted works that occur through the misuse of peer-to-peer file
sharing systems- this is a very complex problem that is not easily
solved, and that would not, in any event, be resolved by imposing S.
2048-like unilaterally-imposed, government-created security standards
on software, hardware and service providers.
Government intervention in creating, imposing or approving a security
standard is not the solution to the industry's piracy problems. The
high-tech industry has worked with the content community to reach
consensus on ways to address similar piracy problems in the past.
Given sufficient time, there is no reason to think that the
stakeholders cannot again reach consensus on ways to combat the three
specific problems identified at the hearings on the bill. These
problems are relatively new and complex. There is no one-size-fits-all
solution. Only through DRM companies competing and working together
with content companies can effective solutions be found.
Government-mandated regulation will not solve any problems - it will
only create new ones.
The Government decision-making process is inherently ill-equipped to
effectively address the types of issues raised in the piracy/broadband
debate. The process is slow and unwieldy. The Government will not be
able to keep pace with the rapid changes in technology - virtually
assuring that any standard the Government codifies is outdated the
moment it becomes law. In short, it is SIIA's view that many of the
aforementioned piracy problems can and will be solved chiefly by
technological solutions developed by the stakeholders. To the extent
there is a role for the Government here, the role should be to provide
a means for enforcing these solutions.
The history of the software industry has shown that the answer to most
piracy problems lies principally in the stakeholders and the
marketplace developing technical and business solutions in conjunction
with Congressional recognition of these solutions by enacting laws to
provide remedies against those who contravene these solutions. For
example, about twenty years ago, anti-copying mechanisms were
incorporated into software to protect against unauthorized copying of
the software. Eventually, consumers complained that such mechanisms
made the software unduly difficult to use. The industry listened to
its customers and responded by discontinuing its use of anti-copying
technologies incorporated into the software and seeking out other ways
to protect against piracy of software. As a result, many software
companies moved to different distribution business models, such as
site licenses and shrink-wrap licenses, and different technological
protections, such as passwords, registration numbers, encryption and
dongles1, to protect their copyrighted software from piracy. The
marketplace largely accepted these approaches and eventually, with the
anticircumvention provisions (i.e., 17 U.S.C. 1201) of the DMCA and
related laws, Congress provided copyright owners with the tools for
enforcing these marketplace solutions. Make no mistake about it,
although these solutions and the laws that protect them are effective,
the software industry still suffers significant harm from piracy.
Nevertheless, the software industry has been able to move forward
without the need to resort to Government-created and imposed standards
in the area of anti-piracy technologies. We should learn from this
history, not ignore it as S. 2048 does by imposing government
standards on the industry before the marketplace formulates its own
solutions.
In addition to the Government intervention problems discussed above,
we have numerous other concerns with S. 2048. For example, the bill is
needlessly overbroad in its subject matter coverage. The bill is not
limited in its application or effect to broadband technology or
digital television. In fact, it is not limited at all - it applies to
just about all hardware and software. For example, the bill covers
PCs, PDAs, software, Internet services, and consumer electronic
products irrespective of whether these products or services are
associated with broadband or digital television. It is also much too
broad because it covers all content by failing to distinguish between
audiovisual content and non-audiovisual content; between copyrighted
and noncopyrighted content; and between pirated and authorized
content. If the bill's aim is to promote broadband and digital
television then it should be narrowly tailored to address these areas.
Another extremely significant concern we have with S. 2048 is that it
prevents copyright owners from using technology to fully protect their
works - thereby undermining what appears to be the very purpose of the
bill. The bill makes it illegal for copyright owners to use
technological protection to prevent lawful recipients from making
"personal use" copies even when there is a legitimate purpose for
using such technological protections, such as to enforce agreed upon
contract terms or to protect trade secrets or a patent. It would also
make it illegal for copyright owners to use technological protection
to prevent lawful recipients from making "personal use" copies even
when the making of the copies is not a fair use or would otherwise
violate the Copyright Act.
These are just a sampling of the problems with the approach taken in
S. 2048. There are many other concerns SIIA and other stakeholders
have with S. 2048. For the reasons stated above and the other concerns
we have not specifically delineated here, we strongly urge you to
oppose S. 2048.
If you have any questions or comments about S. 2048 or our comments
above, please feel free to contact either Mark Bohannon (SIIA General
Counsel & Senior Vice President Public Policy at (202) 789-4471 or
mbohannon@siia.net) or Keith Kupferschmid (SIIA Vice President of
Intellectual Property Policy & Enforcement at (202) 789-4442 or by
e-mail at keithk@siia.net).
Sincerely
Ken Wasch
President
Software & Information Industry Association
Cc: Members of the Senate Commerce Committee
_________________________________________________________________
1. Dongles are used by software vendors to authenticate users' PCs and
prevent unauthorized use. This type of DRM system requires that users
install special devices in their PCs or in some cases purchase PCs
with such devices pre-installed.
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