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[dvd-discuss] Protecting Creative Works in a Digital Age (revised)
- To: dvd-discuss(at)cyber.law.harvard.edu
- Subject: [dvd-discuss] Protecting Creative Works in a Digital Age (revised)
- From: "Arnold G. Reinhold" <reinhold(at)world.std.com>
- Date: Fri, 22 Mar 2002 14:54:11 -0500
- Reply-to: dvd-discuss(at)cyber.law.harvard.edu
- Sender: owner-dvd-discuss(at)cyber.law.harvard.edu
[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
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
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
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
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
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
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."
Arnold G. Reinhold
14 Fresh Pond Place
Cambridge, MA 02138 USA