FC: Competitive Enterprise Institute warns of "state DMCA" bills

From: Declan McCullagh (declanat_private)
Date: Tue May 27 2003 - 07:36:55 PDT

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    Subject: CEI's C:Spin - 'Super DMCA' Bills: Cable Companies Could Control 
    Consumers' Choices
    Date: Fri, 23 May 2003 15:14:33 -0400
    From: "Richard Morrison" <rmorrisonat_private>
    
    
    CEI C:\SPIN
    
    
    
    This issue:  Super DMCABills: Cable Companies Could Control ConsumersChoices
    
    
    
    This week's c:\spin is by <http://www.cei.org/dyn/view_bio.cfm/212>Hanah 
    Metchis, Research Analyst, <http://www.cei.org/>CEI, May 23, 2003.
    
    
    
                 Lets begin with a little pop quiz. Suppose you are redoing 
    your kitchen, and you hear about a fantabulous new electronic gadget. It 
    attaches to your refrigerator and monitors the contents by scanning the 
    barcodes and measuring the weight of each item. When youre running low on 
    something, that item is displayed on a small screen, and an internal modem 
    allows you to order more with the touch of a button using a grocery 
    delivery service such as <http://www.peapod.com/>Peapod. Thrilled by this 
    exciting new convenience, you rush out to buy one. Heres the question: 
    Whose permission do you need to install this item? (a) The manufacturer of 
    your refrigerator, (b) The phone company, or (c) None of the above.
    
                 For most of us, the answer is none of the above. But if you 
    live in Delaware, Illinois, Maryland, Michigan, Oregon, Pennsylvania, 
    Virginia, or Wyoming, the answer is the phone company. And if you live in 
    one of the <http://www.freedom-to-tinker.com/superdmca.html>nine other 
    states where super-DMCAbills are moving through the legislature, you might 
    soon need to ask your phone or cable company for permission every time you 
    buy a new piece of hardware and in some cases, software too.
    
                 Despite the moniker, the super-DMCA bills are not much like 
    the 
    <http://www.eff.org/IP/DMCA/hr2281_dmca_law_19981020_pl105-304.html>Digital 
    Millennium Copyright Act (DMCA) which became federal law in 1998. They do 
    deal with the same issue the protection of copyright in an age when digital 
    devices make piracy an easy task but the state bills use much broader 
    language. (The state bills differ in their details, but are all based on 
    the same <http://www.eff.org/IP/DMCA/states/mpaa_3apr.pdf>model 
    legislation.) They outlaw any communications deviceused without the express 
    consent or express authorization of the communication service provider.That 
    means your phone company, cable company, and ISP get to decide whats legal 
    and whats not. This is not a good idea for the future of tech competition.
    
                 Internet providers are probably not particularly interested in 
    barring the installation of hardware that monitors the content of your 
    kitchen. Their most likely immediate target is digital video recorders. 
    Cable companies have brought 
    <http://siliconvalley.internet.com/news/article.php/3531_929601>lawsuits 
    against manufacturers of TiVo-like devices, but now they offer their own 
    <http://www.timewarneraustin.com/services/cable_services/dvr.asp>proprietary 
    products and services that do the same thing. Under a super-DMCA law, cable 
    companies would have the power to declare all DVRs and even VCRs made by 
    competing companies to be unauthorized devices. And the legislation is so 
    broadly written that it could even let your cable company, phone company, 
    or ISP decide what brand of computer you can have and what software you can 
    run on it. This would give communication service providersunprecedented 
    control over consumer choices and the fates of entire industries.
    
                 In addition, provisions in some versions of the super-DMCA 
    laws forbid users to conceal certain types of online activity. This could 
    turn users and manufacturers of ordinary security and networking software, 
    such as 
    <http://www.siliconvalley.com/mld/siliconvalley/5789219.htm?template=contentModules/printstory.jsp>firewalls 
    and <http://www.eweek.com/print_article/0,3668,a=40258,00.asp>routers, into 
    criminals. Any law this 
    <http://www.publicknowledge.org/reading-room/documents/policy/super-dmca-analysis.html>extraordinarily 
    overbroad is certain to stifle innovation.
    
                 The problem of protecting copyrights is a real one, and it is 
    difficult to solve. But the super-DMCA bills, in their attempt to counter 
    vague threats with vague language, create more problems than they solve. 
    Theft, fraud, and copyright violation are already illegal. Making every 
    communications devicesuspect and every consumer a possible criminal is not 
    the way to prevent piracy.
    
    
    
    C:\SPIN is produced by the Competitive Enterprise Institute.
    
    
    
    
    
    
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