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List:       dmca-discuss
Subject:    [DMCA_Discuss] Would John Kerry defang the DMCA?
From:       Vladimir Katalov <vkatalov () elcomsoft ! com>
Date:       2004-10-27 8:43:36
Message-ID: 345185062.20041027124336 () elcomsoft ! com
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Would John Kerry defang the DMCA?
By Declan McCullagh
October 25, 2004, 8:16 AM PT

http://news.zdnet.com/2100-1009_22-5425019.html

Commentary -- John Kerry finally has hinted at a position that would
mark one of the first real differences from his Republican rival.

In a barely noticed remark on Thursday, the Democratic senator said he
might support defanging the Digital Millennium Copyright Act
(DMCA) -- the unpopular law that has prompted take-to-the-street
protests from the geek community.

If Kerry is serious, that would be a remarkable metamorphosis on a law
that the Senate approved without one dissenting vote. It would also be
remarkable because, contrary to what Kerry and President Bush tell
you, few differences exist between the two White House hopefuls on
nearly any topic imaginable.

Both supported the invasion of Iraq, both applauded the Patriot Act,
and both agreed with sweeping expansions of federal spending on
education. Neither politician has the moxie to say in public that he
agrees with gay marriage, neither will end the war on drugs, and
neither would countenance full privatization of Social Security.

Poor Jim Lehrer of PBS, who moderated the first presidential debate,
was left scratching his head about what actually differentiated the
two men who would be president. Was it Kerry's pledge to undertake
two-party talks with North Korea versus Bush's preference for
six-party talks?

On technology topics as well, as I wrote in a column in June, there
tend to be distinctions without differences. The Democratic and
Republican candidates have been singing in two-party harmony about
technological innovation, broadband, Wi-Fi, spectrum auctions, and
their mutual love for the research and development tax credit.

Still, a few divergences became clear last week with the release of a
set of answers that the Bush and Kerry campaigns provided to a dozen
questions posed by the nonpartisan Computing Technology Industry
Association.

Inalienable right to make backups

Kerry's campaign said the senator might support rewriting U.S.
copyright law to let Americans make backup copies of digital media
they've purchased.

Pay attention, folks: In the tech world, this maybe-or-maybe-not
pusillanimity counts as headline-grabbing news. Right now, under the
DMCA, it's unlawful to make a backup copy of copy-protected DVDs or
computer programs. The 1998 DMCA broadly bans "circumventing"
anticopying schemes, and selling software that can do so is a criminal
offense.

Kerry's survey response said he is "open to examining" whether to
change current law "to ensure that a person who lawfully obtains or
receives a transmission of a digital work may back up a copy of it for
archival purposes" or transfer it to another device. CompTIA's
open-ended question had merely asked "What should federal policy be
toward protecting intellectual property on the Internet?"--without
mentioning backup copies.

This is no theoretical debate. 321 Studios was forced to shut its
doors in August, after a federal judge blocked the small company from
selling its DVD backup software. 321 Studios' utility, the judge said,
ran afoul of the DMCA's anticircumvention restrictions.

Kerry's answer appears to be a tentative attempt to side with
consumers and electronics makers over the entertainment industry--a
rare display of political independence by a prominent Democrat.
(Hollywood firms hand money to Democrats over Republicans by a 2-to-1
margin.)

How serious are these guys?

It's not clear, though, how serious Kerry truly is. Reps. Rick Boucher
and John Doolittle introduced their bill to defang the DMCA more than
two years ago and have been searching in vain for a Senate sponsor.
Kerry, a member of the committee overseeing e-commerce, could have
lent a hand but never did. If the senator had time last year to
announce two bills dealing with tariffs on imported "pouch tuna" from
Indonesia, he surely had time to help Boucher and Doolittle.

The Bush administration's stand, on the other hand, is entirely clear:
defend the DMCA at any cost. Bush's reply to CompTIA said: "I strongly
support efforts to protect intellectual property and will continue to
work with Congress to ensure all intellectual property is properly
protected."

Buttressing this stand is a report released this month by Bush's
Department of Justice. It insists that the DMCA remain intact, saying
U.S. law must prohibit "deliberate and unauthorized circumvention."
Meanwhile, Bush's trade negotiators have been busy exporting the DMCA
to Australia, Chile and Singapore, and Attorney General John Ashcroft
invoked the DMCA when trying to imprison Russian programmer Dmitri
Sklyarov.

Two other modest differences arose in the candidates' responses to
CompTIA's questions about voice over Internet Protocol (VoIP) and
spam. In both cases, Bush was far more explicit about what he would do
if Americans pick him on Election Day.

On VoIP, Bush praised the technology and suggested that regulators
treat it like e-mail--that is, take a laissez-faire approach--instead
of weighing it down with the raft of rules that apply to the telephone
network. On unsolicited bulk e-mail, Bush predictably touted the
Can-Spam Act, which he signed into law last December.

Oddly, Kerry ducked both questions. In both cases, he said only that
he's "open" to considering any approach.

That might work for a small-town lawyer running for election as a
state legislator. But it's unseemly when coming from a guy who's been
in the Senate for two decades and is a senior member on the only two
subcommittees that oversee, well, VoIP and spam. It's also important
because the Federal Communications Commission voted 3-2 along party
lines in February to exempt "pure" VoIP companies from traditional
telecommunications regulations. The two Democratic commissioners
opposed that move. What side would a President Kerry take?

Unfortunately, both major-party candidates are savvy enough to realize
that Americans don't pick presidents based on their telecommunications
policies. The problem is that there are so few substantial
distinctions in other areas. Just ask Jim Lehrer.

_______________________________________________

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