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" <rmsat_private> To: <declanat_private> 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 mbohannonat_private) or Keith Kupferschmid (SIIA Vice President of Intellectual Property Policy & Enforcement at (202) 789-4442 or by e-mail at keithkat_private). 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. ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Sign this pro-therapeutic cloning petition: http://www.franklinsociety.org -------------------------------------------------------------------------
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