Two Views of Copyright Protection: The Consumer Broadband and Digital Television Promotion Act
 
September 24, 2002
 
James E. "Ted" Long- Boston

In late March of this year, and after a year of drafting, Senator Fritz Hollings (D*SC), Chairman of the Senate Commerce Committee, introduced the Consumer Broadband and Digital Television Promotion Act (CBDTPA or S. 2048)¹, a bill that will require manufacturers of consumer electronics to include copy protection technology.  In his introductory remarks regarding the bill, Senator Hollings’ explained that the legislation was necessary to stimulate the growth of high-speed Internet access as well as the transition to digital television, reasoning that consumers will not now purchase either service due to a lack of programming content, which is directly related to the fact that content owners are, at present, unwilling to provide their works in the digital medium due to the potential for piracy.

The legislation would, upon implementation, prohibit the distribution of any new hardware and software, from cell phones to CD players to television sets to computers, unless the technology contains embedded copy-protection standards approved (or mandated) by the federal government.  While Senator Hollings has indicated that he is confident that the private sector (i.e. the high technology community and content industry) is capable of negotiating a standard that will ensure the secure transmission of proprietary information through the media and Internet, he believes that, given the current state of negotiations between the parties, a push is needed.   S. 2048 is designed to be that catalyst. 

One year after enactment, the CBDTPA would require the Federal Communications Commission (FCC), in consultation with the Register of Copyrights, to determine whether “digital media device manufacturers, consumer groups, and copyright owners” have reached an agreement on security system standards and encoding rules, and, if so, whether the security system meets certain standards as contained in S. 2048.² If the FCC determines that a standard has been adopted by private industry and that such standard comports with the CBDTPA, the FCC would initiate a rulemaking to adopt that standard.  If, on the other hand, the FCC determines that no standard has been adopted, or that the adopted standard fails to meet the stipulations of S. 2048, the FCC shall initiate a rulemaking to develop and adopt a suitable security system standard.

Once the security system standard has been adopted it would be illegal for anyone to create, sell, import or distribute a “digital media device” (any hardware or software that reproduces copyrighted works in digital form or converts copyrighted works into digital form for use by an end-user) that: (i) was created after adoption of the security system standard, and (ii) did not conform to the government’s security system standard.  The bill would also prevent the: (i) the deletion of markers indicating that a file is copy-protected, (ii) knowing removal of copyright protections, and (iii) intentional distribution of copyrighted material where the security measure has been removed or disabled.  The bill contains strong enforcement provisions:  criminal penalties including fines of $50,000 and five years in prison for the first offense and statutory damages ranging from $200 to $2,500 per violation.

The content industry (the Recording Industry Association of America and the Motion Picture Association of America) embraces the Consumer Broadband and Digital Television Promotion Act and, indeed, lobbied hard to have the bill drafted and introduced.  Supporters argue that 350,000 films are being downloaded illegally daily and assert that computer makers, chip designers, software creators and consumer electronics companies have an obligation to ensure that consumers can access copyrighted materials legally.  Protecting content will, argues the content industry, jumpstart the broadband revolution by assuring those who own content that they will be compensated for its transfer and use.

The high-tech community (represented by the likes of Intel, Gateway, Excite.com, Marc Andreesen, the Association for Competitive Technology, the Business Software Alliance, the Computer Systems Policy Project, the Electronic Frontier Foundation, and the Information Technology Industry Council) has bristled at the assertion that it ought to bear the burden of solving piracy problems faced by content owners due to technological advances.  The group has taken even greater umbrage at the prospect of having one standard of protective technology thrust upon it by the federal government.  Soon after the introduction of S. 2048, Andrew Grove, Chairman of the Board of Directors of Intel Corporation, wrote in The Wall Street Journal, that the Consumer Broadband and Digital Television Promotion Act was “a bigger threat to America’s information technologies industry than the recession or any external challenge yet encountered in its history.”

Acknowledging that digital content can be readily copied without loss of fidelity and distributed on electronic networks, Mr. Grove and other leaders of the high-technology community assert that technology ought to be devoted to enriching products, not attempting to limit access to them.  Mr. Grove and his colleagues argue that even if unbreachable digital content protections were technologically feasible, which they question, the federal government is in no position to mandate standards for cutting-edge technology; indeed, such mandates will simply invite people to find the gaps and breach the protections.

The technology community and consumer rights groups alike raise the specter of public or private sector enforcers checking individual e-mail messages for evidence of violations and assert that such checks would be violative of privacy rights.  In short, opponents of the bill argue that it will decrease consumer choice, degrade product performance, stifle innovation, and reduce global competitiveness for American technology products.

Currently the Consumer Broadband and Digital Television Promotion Act has no companion legislation in the House of Representatives and press reports indicated that Senator Leahy, Chairman of the Judiciary Committee, which has jurisdiction over part of the bill, is opposed to it.  In addition, the Bush Administration has voiced some concerns regarding the bill.  Thus, the bill may be viewed as an offensive front for the content providers rather than a piece of legislation that is likely to be enacted this Congress.  It embodies, however, an issue both supporters and opponents acknowledge must be resolved in some fashion in order for the high-tech industry to move forward.

For more information, contact Ted Long, toll free at 888-688-8500, or via e-mail at tedlong@hklaw.com.