Letter to my Senator (Score 2, Informative)

Dear Senator Feinstein,

I am a constituent writing to you regarding the Senate Commerce, Science and Transportation Committee's hearings on 2/28/2002 regarding intellectual property protection requirements for computers and digital devices, and the draft Security Systems Standards and Certification Act (SSSCA) by Senator Hollings.

Few would argue against Hollywood's goal of preventing the distribution of reproduced copies of copyright-protected content. However adopting the proposal in the draft SSSCA would be terribly destructive because in pursuit of this goal it both forecloses digital viewing of independently created content, and takes all reasonable control away from the content purchaser. It is not my place to suggest possible alternate means of achieving their goal, however I would like to point out some of the problems in the proposal, in hopes that you will come to agree with me that significant further study is needed before the concept of any Federally mandated measure could begin to be entertained.

To understand the problems with draft SSSCA, some background facts need to be appreciated.

First, it is important to understand that the Internet to date has been a medium of free exchange of expression. Its technical architecture is fundamentally based on the assumption that getting information from sender to recipient is the goal. This assumption is so deeply-seated that if communication is ever blocked, the Internet itself seeks out another route. In this regard, the Internet is like an error-resistant Post Office, faithfully delivering messages with admirable determination. Together with nearly universal access, it is this highly democratic, forum-like characteristic that has made the technology, culture, and, yes, the business boom of the Internet possible -- marking one of America's great modern achievements.

Second, as computers have spread throughout society, the creativity of private US citizens has increasingly transpired not on paper or canvas or in the concert hall, but on the computer. People are making media, from children at school, through to neighborhood rock bands recording albums at home, to artists creating digital paintings and collage works. Digital photography, for example, is a creative medium intimately linked to the computer in the home.

Third, in the world of computers and the Internet, every creation takes the same essential form -- a file (sometimes called a 'stream') is a sequence of 1's and 0's. All digital content, whether music recording, love sonnet, or home movie, is stored on a hard drive and transmitted over the Internet as a file. Due to the nature of computers, there is no other possibility.

Let us also quickly review the essential legal nature of copyright:

1. Not all content is protected by copyright.

2. All copyrighted content may be legally used in numerous ways that its publisher would prefer not to occur.

3. Copyright is temporary, not permanent, per the US Constitution.

4. After copyright expires, works are intended to pass into the public domain for use by all citizens.

5. Because of 3, all content eventually becomes unprotected by copyright.

Now then. The draft SSSCA would change all computers -- indeed, all digital devices -- to reject all digital content that is not stamped with information telling how the publisher says it can be used. This turns the free transmission principle on its head, utterly. Rather than a medium of free communication, it would make the Internet and all the computers attached to it a place where only certain, specifically authorized, pieces of content could be found.

This is where a world of complicated problems enter the picture, and is why the draft SSSCA cannot be accepted.

There are more problems than I can list with the draft SSSCA, so let me concentrate on a 'Top 10' list of the worst ones that I can see:

1. It would end the Internet's value as a public commons for speech, since only 'authorized' speech bearing the stamp could take place there. The importance of this factor cannot be overstated, and should make the draft SSSCA an affront to any guardian of the public sphere, not to mention vulnerable to Constitutional challenge.

2. No computer (or device) would be able to play any piece of digital media lacking the stamp. This has many serious implications, the most obvious of which is that no computer or device would be able to play such common locally-created items as children's movies or animations created in school, home photographs, and so on. Only 'brand-name' entertainment would be possible. While this is a laughable scenario, close reading of the draft SSSCA would appear to require it.

3. In the proposed scheme, any hobby or volunteer art, or promotional content, created with the intention of being shared freely (e.g. not stamped) would be excluded. For example, music directly published for sharing by the artists who created it, unaffiliated with any major publisher. This is not only undemocratic and a governmental interference with free speech, it also raises serious issues of government-sanctioned market protectionism by keeping independent content away from the digital audience.

4. In the proposed scheme, the stamp becomes equivalent to permission to publish expression to the American public. This is fundamentally against the free speech principle. Speech must not require permission.

5. Requiring a stamp sounds suspicious enough, but much more so when we ask: Who issues the stamp? Will there be a cost? What should the cost be? Will all applicants be treated fairly? Since the stamp is prerequisite to -any- display on -any- computer or device, these questions are crucial. Can an entertainment industry entity be trusted with this gatekeeper duty? Is it wise or appropriate to have such a universal gatekeeper at all? How can having a designated universal gatekeeper be consistent with free speech?

6. Currently any challenges regarding the originality of a work are brought to civil court under the Copyright Act, after publication of the work. Under the SSSCA scheme, stamp denials could occur before publication. So if stamps were to be issued by the Government, there would be Constitutional questions of governmental prior restraint. Troubling questions, too, since the question of originality is frequently ambiguous, making the process vulnerable to charges of censorship under color of authority.

7. No computer (or device) would be able to allow the owner unprotected access to any piece of digital media containing the DRM stamp. This has many serious implications, including preventing wholly reasonable and otherwise legally sanctioned 'fair uses' of the content by the customer. For example, space-shifting (making an MP3 file from an album for listening while exercising) or format-shifting (copying onto a laptop computer for listening during a business trip) or making a back-up copy in case the purchased copy is ever damaged.

8. The proposed scope of 'All interactive digital devices' is indefensibly broad, not to mention the fact that it indicates a troublingly naive picture of the digital world. Despite having no way to receive files, typewriters and thermometers are digital and interactive and so could be required to implement useless and expensive content management technology. Similarly, there are any number of interactive digital devices and components not intended as media players whose technical functionality and/or cost would simply be made unfeasible by attempting to add rights-management features. So a certain quality of 'magical thinking' about how technology works and what is in fact possible is in evidence. We can be certain that the SSSCA was not drafted with the involvement of anyone who ever engineered any digital device, and this alone is reason for much further study.

9. The required access control mechanism would survive the copyright's expiration, therefore none of this content will be able to pass into the public domain. This allows publishers to cheat the public out of the Constitutional 'copyright bargain' by hoarding the work after having already harvested the financial benefits of selling it.

10. The draft SSSCA has a bad synergy with the Digital Millennium Copyright Act. The DMCA criminalizes the existence and possession of any measure allowing circumvention of access control technologies, irrespective of copyright validity or infringing intent. This cements two of the above SSSCA problems: content that will never pass into the public domain, and content that cannot be reasonably re-used by the legitimate customer. Also, like the DMCA, the penalties are unnecessarily draconian ($500,000/5 years imprisonment), are redundant to the penalties available under the Copyright Act for intentional infringement, do not require an intent to infringe. The SSSCA penalties would also appear to be wholly redundant to the DMCA.

Given all the serious problems listed above, it is extremely distressing that the Committee has entertained the draft SSSCA at all. Please, I would ask you to consider the matter of the SSSCA carefully, and I would urge you to call for further study and a more reasonable, less destructive proposal before further discussion of any possible legislation in this area.

Sincerely,

-- Snogwozzle