[dvd-discuss] Comment to the Senate Judiciary Committee

["Peter D. Junger" <junger(at)samsara.law.cwru.edu>]

I just sent the following comment in response to the request
for comments about Protecting Creative Works from the Senate
Judiciary Committee.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
     NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists

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Date: Sat, 16 Mar 2002 18:56:51 -0500
Message-Id: <200203162356.g2GNupr14596@samsara.law.cwru.edu>
To: usercomments@judiciary.senate.gov
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X-Personal_Name: : Peter D. Junger
From: junger@samsara.law.cwru.edu
Subject: Comment on Content Protection Legislation
Cc: junger@samsara.law.cwru.edu


I am writing in response to the request for comments contained in the
Senate Judiciary Committee's notice entitled:

>      Protecting Creative Works in a Digital Age: What is at stake for
>                   Content Creators, Purveyors and Users?

This comment is directed to the following portion of that notice:

>   Some  content  owners are calling for
>   congressional   intervention  to  provide  additional  protection  for
>   digital copyrighted works in the form of government mandated standards
>   for,  and  agency  certification  and  approval  of, DRM technologies.
>   Information technology companies, in turn, have expressed concern that
>   inappropriate  government  mandates could stifle innovation and hobble
>   technology  that  could be made available to creators and consumers to
>   improve  the  quality,  functionality,  flexibility,  and freedom that
>   digital delivery systems, and personal computer technology in general,
>   have to offer.

I am an Emeritus Professor of Law at Case Western Reserve University
and am currently a Visiting Professor at Whittier Law School. My 
major research concern for many years has been with the application
of law to the process of computing.  I am also the plaintiff in
the case of Junger v. Daley, 209 F.3d 481 (6th Cir. 2000), the
leading case holding that computer programs are speech that is
protected by the First Amendment.

Except for mentioning the fact that there is no such thing as a
"content owner,"  as opposed to the owner of the limited set
of rights that are included within the grant of a copyright 
monopoly, I shall confine these comments to the drastic
consequences that would be entailed by any legislation mandating 
that Digital Rights Management ("DRM") technologies be included
in general purpose digital computers.  These comments are not
addressed to dedicated "game machines," digital video viewers,
or CD players, etc., that are not designed to function as
general purpose computers.

The simple fact is that any legislation mandating that general 
purpose computers must contain an effective DRM technology would
outlaw the manufacture and sale of all those general purpose 
digital computeers that are subject to the mandate, since the 
purpose of all DRM technologies is to limit what can be done 
with the devices that contain them and to make sure that those 
devices cannot perform all of the functions of a general purpose
computer.

The wonder and the almost unlimited potential of general purpose
digital computers, from the cheapest PC to the most powerful
of super-computers, is that they can perform any calculation--any
computation--whatsoever that can be performed on digital 
representations of one or more numbers.  The only limitations are 
those imposed by the size of the computer's memory and the speed 
at which it can perform its computations.

Any copyrightable work that is represented in digital form--whether
contained in a tangible medium like a CD or a DVD or "streamed"
over the Internet or a television channel--can be viewed as a
digital representation of a number that can be used in a 
computation. DRM technologies as applied to works in digital form
involve computations that scramble the data so that it is difficult 
for an unauthorized entity to unscramble it again.

What worries the so-called ``content owners'' is the fact that
it is not actually that difficult in many cases for an unauthorized
entity to use a computer to perform the calculations needed to
unscramble the scrambled data.  Their proposed solution to this
problem is to require that devices that process digital works
be incapable of performing those calculations (or incapable 
of performing calculations upon certain numbers.)

I am not a computer scientist, but I have difficulty in conceiving
how one could modify a general purpose digital computer so that
it will not perform certain calculations (or so that it will not
perform computations upon certain numbers) and have it still
be capable of performing any calculations at all.  In any case,
one does not have to be a computer scientist to recognize that
any device that is modified in such a fashion would no longer be
a general purpose computer, although it might be a dedicated
word processor or a video player or a game machine.

I believe that outlawing general purpose computers by requiring
all devices capable of processing digital data to contain DRM
technologies would have drastic consequences for the progress
of science and the useful arts, as well as for our nation's
economy, but I am not an expert in these matters.

I would, therefore, suggest that you solicit comments and 
testimony from computer scientists and programmers as to the
the desirability--and the feasibility--of applying DRM 
technologies to devices intended to function as general purpose
computers.

Respectfully submitted,
Peter D. Junger
- --
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   



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