[dvd-discuss] Protecting Creative Works in a Digital Age (revised)

["Arnold G. Reinhold" <reinhold(at)world.std.com>]

[Since my first submission was rejected, I took the opportunity to 
revise my remarks some. Here's the new version I submitted. If 
nothing else, I was able to add the new acronym. -- agr]


March 22, 2002

The United States Senate
Committee on the Judiciary
Washington, D.C.

Re: Protecting Creative Works in a Digital Age: What is At Stake for 
Content Creators, Purveyors and Users?

I oppose proposals, like the CBDTPA (formerly the SSSCA), that 
require Digital Rights Management (DRM) technology in all digital 
devices. These proposals radically shift the balance of power between 
information producers and the public.  Orwellian is the best word to 
describe such laws.  Here are some of the reasons for my opposition:

1.  The CBDTPA Represents a Massive Economic Power Grab by the Media Industry

The CBDTPA is a brazen attempt by the media industry to destroy the 
copyright balance the Founding Fathers carefully constructed in our 
Constitution so as to gain virtually unlimited profits.

1.1 The media industry seeks greater profits through legislation, not 
market success

These proposals are part of a broad campaign by the media industry to 
gain control over information, with prior efforts directed at 
extending copyright duration, fighting copying technology, killing 
digital audio tape and even attempting to block the introduction of 
the VCR. At the same time, deregulation measures sought by the 
industry allow increasing concentration of media ownership, mostly in 
foreign corporations.

No one is forcing media companies to release their content in digital 
form that can be played on personal computers. It is a choice they 
continue to make in the face of the claimed risks. If they wish to 
develop secure digital distribution systems, they should do so with 
their own ample resources and convince consumers to accept their 
devices through market forces, not by legislation.

1.2. The media industry wants a free ride on the Internet

The creation of the personal computer and the Internet is one of the 
great achievements of American technology, and one that offers 
profound hope for our future. The media companies are trying to 
commandeer this technology to gain a new means of distribution at 
little or no cost to themselves. Why should they be permitted to 
cripple this engine of progress just so they can enhance their 
profits?

There is a real risk here to the health of the personal computer 
industry.  PCs are already far more powerful than any super-computer 
20 years ago. How much power do consumers really need? A major 
reduction in the usability of computers forced by CBDTPA may signal 
to consumers to stop buying new machines every few years and simply 
upgrade what they own.  The economic impact on the computer industry 
could be devastating.

1.3 The coming Pay-Per-View Society

The media industry's goals go far beyond ending "Internet piracy." 
They wish to create a pay-per-view world where they collect a fee 
every time a copyrighted work is viewed or read.  In passing the 
Digital Millennium Copyright Act (DMCA), Congressional committees 
specifically disavowed the creation of a pay-per-view society. The 
CBDTPA would reverse that position. The rights consumers now enjoy to 
record TV programs and radio broadcasts and listen to them as often 
as they wish, granted by the Supreme Court in Universal v. Sony, 
would be repealed by CBDTPA.


2. The Unintended Consequences Will Curtail Our Cherished Freedoms

The dangers of CBDTPA and its kin go far beyond the economic. Here 
are some scenarios where CBDTPA would undermine basic public rights 
to access and use information:

2.1 Balkanization of human culture

One sign of what a DRM world would be like is already apparent with 
DVDs. The motion picture industry has arbitrarily divided the world 
into six "zones." Movies recorded on DVDs for one zone are not usable 
on DVD players in the other zones. If I buy a DVD on a trip to Europe 
or Mexico, I can't play it when I get home. Movies that lack a large 
market, because they are not in English or are too local in content, 
are unlikely to be released in a North American version (Zone 1), so 
U.S. citizens can never watch them.  Is this what Congress intended 
when it passed the Digital Millennium Copyright Act?  CBDTPA will 
only make things worse by making it physically impossible to access 
foreign works that industry does not choose to distribute in the U.S. 
and by making criminals of those who attempt to do so. Our right to 
read and view foreign works, works that we pay for, will be sharply 
curtailed.

2.2 The new Iron Curtain

In the future, repressive governments may insist that media players 
imported into their territory include DRM technology adapted so that 
it can block any unapproved works. That would not be hard to do. Only 
media that has a digital signature from a government censor would be 
playable. As new digital devices come to dominate information 
commerce, these governments will be able to totally control what 
movies, songs, political tracts, TV programs and news stories are 
available to their citizens. Any U.S. citizen who tried to create 
material that would bypass the censor would be subject to criminal 
prosecution under CBDTPA.

If you think I'm exaggerating, consider this: China already has its 
own DVD zone, number 6. Suppose I re-record for zone 6 a copy of 
"Kundun," the Walt Disney feature film about the Dalai Lama's escape 
from Chinese-occupied Tibet. I could then sent it to a friend in 
China to play it on his DVD player. Right now I'd be risking a $2000 
fine under the DMCA. Under CBDTPA, I would be committing a felony.

2.3 The end of the Public Domain
 
The media industry has already obtained extensions to copyright 
protection that insure no work created today will enter the public 
domain in our children's lifetime. DRM will prevent new works from 
ever entering the public domain. Even if the law is amended to 
require provisions for the public domain, most works will become 
unreadable before they can be decoded. Our written cultural history 
will be mostly erased.

2.4 Revisionism by law

In the past, when an organization issued a public statement, it 
became part of the public record. In the future organizations can 
issue statements, advertisements, stock solicitations, et cetera in 
the form of protected, time limited documents using DRM technology. 
If the statement proves to be embarrassing, inconvenient or otherwise 
problematical, they can simply erase it from their records or even 
alter it to eliminate the problem text or to add exculpatory 
material. Anyone who attempted to save a readable copy of the 
original that would catch this fraud would be subject to criminal 
prosecution under CBDTPA.

2.5 No more free Public Libraries

Ben Franklin himself invented the public library and publishers have 
been seething ever since.  The free public library has been a 
cornerstone our democracy, allowing people of all economic classes to 
access our common culture. The CBDTPA will effectively kill 
Franklin's concept by establishing the pay per view business model as 
the prime mode of publishing. Public libraries will become retail 
kiosks for collecting access fees. Already, advanced information 
services like Lexis charge rates well beyond what the poor can 
afford. That is the DRM vision of the future.

Recall that Harvard University was named after John Harvard because 
he donated his library to the fledgling college. In the future, 
scholarly material will be delivered to each professor in a DRM 
format keyed to the professor's player or smart card. When she dies, 
no one will be able to access her lifetime of accumulated material 
per CBDTPA.

2.6 The end of the paper trail

Already companies are programming internal e-mail systems to erase 
messages from archives after a few months. Soon companies will 
distribute internal memos in a time limited DRM format that can only 
be played on company computers. The software that plays these memos 
will not permit them to be saved in a neutral format.  This will 
effectively eliminate the paper trail that is used to prosecute 
white-collar crime and end whistle-blowing as we know it.

Enron's auditors would not have had to shred documents if they had 
access to the type of technology CBDTPA would mandate. The documents 
would simply cease to exist once a master key was erased.

An issue in the last New York Senate campaign was whether one 
candidate had espoused positions in his fundraising letters that 
differed from those he stated in public. The public certainly has an 
interest in knowing about such behavior. In the future, politicians 
will deliver fund raising material using time limited DRM technology. 
An opposing candidate that attempts to introduce copies into the 
public debate would criminally violate CBDTPA.

3. The Need for Repressive Legislation Will Not End with CBDTPA

How long has it been since DMCA was passed? Hundreds of millions of 
computers are in consumer hands. Tens of millions more will be sold 
before CBDTPA approved machines hit them market.  Many consumers will 
choose to upgrade their older machines rather than accept the CBDTPA 
restrictions. The media companies will be back for new laws and 
regulations banning upgrades and restricting the sale of used 
computers. First generation CBDTPA computers will be found not to be 
secure enough so they will have to be removed from the used market. 
Bandwidth available to consumers on the Internet must be restricted. 
And on and on...

The CBDTPA is a massive change in the way we use information. I have 
attempted to suggest some of the likely consequences but I cannot 
begin to predict all the evil that will ensue from the total control 
over electronic expression that CBDTPA enables. This is too great a 
risk for our democracy to bear.

"1984 is not a novel, it's just another high tech product plan with 
an overoptimistic ship date."


Respectfully submitted,

Arnold G. Reinhold
14 Fresh Pond Place
Cambridge, MA 02138 USA