More on the Digital Media Bill From Hell

Happy Fun Pundit is doing its bit to help people realize just how awful the new "Consumer Broadband and Digital Television Promotion Act" bill really is. For the record, the bill is S. 2048. It was formally introduced by Fritz Hollings (Democrat, Sony), Ted Stevens (Republican, Disney), Daniel Inouye, John Breaux, Bill Nelson, and Diane Feinstein. Full text of the bill is here.

Just What Is This Bill?
Let's see if I can describe the 'big picture' without resorting to expletives. This concept behind this bill is that every piece of intellectual property in digital form will be encrypted and stamped with its own copyright information. All devices that can read or display that information must have a device that decrypts the file based on the limitations of the copyright. The 'chain' of distribution will stay encrypted right to the display device.

For example, if you have an HDTV today, the signal is decoded usually in a set-top box, and then a high-quality analog signal is fed into your TV. Of course, that signal can also be fed into a video recorder or digital recorder, allowing you to make copies of it. The goal of this bill is to keep the data encrypted throughout the entire process, until it's finally decoded inside the TV itself. Theoretically, the only way you could then make a copy of it would be to set up a camcorder or something and record right off the screen.

No word yet on when Congress is planning on making it illegal to actually use this material - after all, you could read a copywritten poem and then repeat it to someone. Can't have that.

What's So Bad About It?
Good question. Glad you asked. For starters, the bill makes illegal the interstate transport of any "Digital Media Device" which does not have a special copy protection chip in it. What's a Digital Media Device? From the bill:

3) DIGITAL MEDIA DEVICE. -- The term "digital media device" means any hardware or software that --

(A) reproduces copyrighted works in digital form;
(B) converts copyrighted works in digital form into a form whereby the images and sounds are visible or audible; or

(C) retrieves or accesses copyrighted works in digital form and transfers or makes available for transfer such works to hardware or software described in subparagraph (B).

That's pretty much anything that works with digital data in any form. Your palm pilot, Mp3 player, digital television, projector, set-top box, and even individual memory sticks and PCMCIA memory cards. It also means software, and note that almost anything sent across the internet is 'interstate commerce', which means that if you write a utility to display a copy protected image, it had better have security code in it that the government approves of, or you'll be doing time.

Note that one nasty little side-effect of this law will be to make all existing computer hardware and software obsolete for using new digital content. Got an HDTV system with a projector? Tough noogies. That projector doesn't have the approved copyright chip in it, and therefore will not be allowed to receive the new digital data stream. And you can't even get around that with a decoder box, because devices are not allowed to read copywritten digital data and reproduce it without security controls.

The bill also makes it illegal to modify either the security code in a product, or to remove the copyright information in the original content. It also requires that all public computer networks transmit all copyright information along with the content.

This has already had a chilling effect on progress in encryption research. A Princeton computing science professor has had to withdraw a paper that revealed how to crack SDMI, for fear that he would come under legal action by the recording industry. I'm not sure how people are even supposed to do research to test the effectiveness of the various security schemes, as the research itself would appear to be illegal under this bill if it involves actual attempts to crack the encryption.

The net effect of all of this will be to obsolete billions of dollars in equipment, to raise the price and increase the size of every digital product in the marketplace, and to force a standard on us that will no doubt be obsolete and cracked before it's even released. The bill makes provision for 'updating' the standard, but when the government uses its big hammer to force one technology on everyone, the cost of updates will be horrendous.

How would you like to buy a new MP3 player, have the security algorithm in it be hacked by someone, and then be forced to have to 'upgrade' in order to get the content you thought you could get when you bought the thing? This will have a chilling effect on innovation in the digital world.

What about my Fair Use Rights?
What, you thought you had fair use rights? Clearly, you haven't got the kind of insight that years in Congress and a number of large checks from the entertainment industry can give you. 'Fair Use' is protected in this bill in name only, and even then only for over-the-air broadcasts. This is the section that addresses fair use:

(1) LIMITATION ON THE EXCLUSIVE RIGHTS OF COPYRIGHT OWNERS. -- In achieving the goal of promoting as many lawful uses of copyrighted works as possible, while preventing as much infringement as possible, the encoding rules shall take into account the limitations on the exclusive rights of copyright owners, including the fair use doctrine.

(2) PERSONAL USE COPIES. -- No person may apply a security measure that uses a standard security technology to prevent a lawful recipient from making a personal copy for lawful use in the home of programming at the time it is lawfully performed, on an over-the-air broadcast, premium or non-premium cable channel, or premium or non-premium satellite channel, by a television broadcast station (as defined in section 122 (j)(5)(A) of title 17, United States Code), a cable system (as defined in section 111(f) of such title), or a satellite carrier (as defined in section 119(d)(6) of such title).

That sounds reasonable, but how does the bill allow for a 'personal copy', if the content isn't allowed to be converted to unprotected analog? Time to throw out your VCR. I guess the vision here is that you'll buy a digital recorder which will allow you to store something and watch it when you want. But what about archives? Or music? Can't make a cassette tape for your car - I guess you'll have to buy a new digital car player if you want to listen to that new CD you bought.

You'll also note that the only 'personal use copies' mentioned in the bill are copies of broadcast material. It says nothing about personal use copies of other digital content like music and movies.

The problem with trying to encode a device to incorporate 'fair use' is that fair use itself is a sliding standard. For example, using exerpts from songs, books, and movies is legal for certain purposes, and illegal for others. There is no way a simplistic chip that can fit in a memory stick can make that determination. For that matter, there's no way to know what 'fair use' for a digital work created 20 years from now would be.

There's also no provision for a copyright to expire in this bill, so if the copyright expires on a piece of digital content you have, you still won't be able to copy it or do anything else with it that the original copyright holders don't approve of.

The end result is that 'fair use' will be decided by - the people selling you the product. They'll set up the algorithm to allow one digital copy, or to allow transfer to another machine that has a matching owner ID, or something like that. If you have a legal use for the content you purchased that does not match the vision of the content provider, you're just out of luck. And the content providers have an incentive to restrict your fair use rights as much as possible.

Will It Stop Piracy?
Oh, man, my aching sides. Sorry, I was too busy laughing to answer there for a minute. The short answer: No, of course not. All it takes is one person somewhere to strip the encryption out of a digital song or movie and put the unprotected version on the net, and before you can blink it'll be all over the place. And since this technology will put limitations on 'fair use' that do not belong there, the result will be to force legitimate owners into the black market of unprotected material simply to be able to do the things they have a right to do under the law.

This bill shows the kind of insight into the modern computing world that would be exhibited by your average trained circus monkey. No one I know who actually works in the field thinks that this will do much of anything to stop the type of copying done on peer-to-peer networks like Gnutella or Kazaa. The people that use those networks are smart enough to get around this, and the illegality of hacking the encryption clearly won't stop them, since it's not stopping them now.

What Can I Do?
I recommend Tequila shots. Lots of them. But if you want a more practical idea, I'd suggest writing the people involved in this mess and telling them how unlikely you are to ever vote for them or anyone who looks like them, ever again. You could also go to this web site: Help Stop the CBDTPA and take some of the steps mentioned there.

Posted by Dan at June 10, 2002 01:07 PM