New US law aims to be stricter than DMCA

Draft law would criminalise products that do not contain 'certified security technology' to prevent breaches of copyright
Written by Robert Lemos, Contributor on

Hardware manufacturers would be required to create and install a government-approved anti-copying scheme in PCs and other digital devices under a draft bill making the rounds on Capitol Hill, according to sources.

Known as the Security Systems Standards and Certification Act (SSSA), the draft legislation plans to make illegal the manufacture or trade of any "interactive digital device" that does not have a "certified security technology" embedded in it. Moreover, people who make "available to the public" a copyrighted work that has had its protections removed or altered could face stiff fines -- and in some cases jail time, if they removed the copy protection themselves.

Hardware makers such as Intel and IBM have worked voluntarily to include so-called digital rights management technology directly in future products -- a step that would make copy protection more difficult to disable than current approaches, which typically rely on software alone.

But the proliferation of protection methods needs to be simplified, or hardware makers will never adopt the technology, said Preston Padden, a lobbyist for Walt Disney.

"We can't ask everyone to build every technology into their system," he said. "The notion is to have a common, open standard. Sure, let's make it upgradeable, and renewable, and extensible. But let's have a common, open, interoperable standard to go in all devices."

The quest for hardware security standards has sparked worries among consumer advocates, who contend that giant media companies are eager to trample limits on their long-held power to control copyrighted works. But security efforts to date have proven a disappointment for copyright holders, which continue to search for tools to battle file-swapping networks such as Napster.

"It's something that some studios, especially Disney, have been floating for a long time," said one technology-policy lobbyist, who asked not to be identified.

News Corporation is allegedly also a major supporter of the bill. News Corporation representatives could be immediately reached for comment.

The draft bill, which has not been introduced to Congress, apparently originated in the office of US Sen. Ernest Hollings, and states it also has the support of Sen. Ted Stevens. The widely disseminated draft is dated 6 August and indicates that Hollings expected to introduce the bill this month.

"We think movies and TV shows are the surest way to stimulate consumer demand for broadband," said Disney's Padden. The movie industry "can't put our content out there on broadband until we have a reasonably secure environment."

Although media companies may think the measure is a good idea, the technology community is hardly enthusiastic about the draft, said the lobbyist.

"Sen. Hollings, who would rather have a BMW factory than a dot-com in his state, is trying to regulate hi-tech," said the lobbyist. "No one [in tech] likes this bill."

The first section of the bill, in its current form, would make stricter copyright protections than the already controversial Digital Millennium Copyright Act (DMCA).

The draft would in effect turn the Internet into a pay-for-play distribution system by mandating that the industry and government design a certified security technology to protect digital works. It also would criminalise the creation of technologies and products that did not include the technology. Such a technology would have to be developed within two years of the bill being enacted.

The bill, in its current form, would also criminalise those who removed or altered the protections on digital content. It also significantly cuts back the concept of "fair use" to making copies for "time-shifting" purpose only. The ability to save a movie on a VHS tape, loan a book to a friend, or make a backup copy of software are generally considered fair use.

Violations of the statute could result in up to five years in prison and $500,000 in fines.

That's exactly the same sentence Dmitry Sklyarov is facing. The Russian programmer is being tried in federal court in California for creating a program to break the encryption surrounding Adobe Systems' e-Book format, a program that his company marketed to the United States, a crime under the controversial DMCA. The US government has brought five charges against Sklyarov, which could lead to up to 25 years in jail.

A second section of the draft bill, aimed at beefing up the United States' ability to protect its networks and data, may garner some support from technologists. In the latter part of the draft, provisions set aside nearly $600m to security researchers and information-security programs, an act already advocated by former President Clinton's National Plan for Critical Infrastructure Protection.

Critics of the bill said bringing government regulation to content security is counterproductive.

"It's very bad technology policy," said Cindy Cohn, legal director of the Electronic Frontier Foundation, a digital-rights organisation advocating a balance in copyright policy. "It's basically saying that the government should mandate that you write your software a certain way."

In addition, Cohn slammed what she viewed as Congress's willingness to represent the interests of corporations with large libraries of copyrighted works, rather than citizens.

"Isn't it Congress's job to stand up for the public?" she asked. "They seem to have completely abdicated their job to represent...the audience."

Although Cohn said she doesn't believe that the bill would have much chance to become law, she pointed to the DMCA's passage as proof that danger exists.

"Any thoughts that fair use was going to survive into the digital age are not put to rest," she said. "The copyright holders are trying to move the model to an absolute ownership, even more than land ownership."

Yet, Disney's Padden dismisses such talk.

"This is all about bringing the content online; it's not about censoring libraries and academicians," he said. "I think that some people may be overreacting to a staff draft."

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