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Effectively fighting the Hollings bill

The impact

According to the proposed bill, the sale, distribution or creation of "digital media devices" will become illegal unless they include government-approved technology that defines and restricts reproduction of communication of certain classes of content. Digital media devices are defined as any hardware or software that can reproduce or display digital works. Under the bill, those devices must be marked with a government-approved electronic watermark indicating the content originator wants to restrict distribution. Networks or communications-capable hardware or software must respect markers indicating a file is copy-protected, and must preserve the markers intact. This includes ISPs and other Web site hosts, telecom and networking hardware such as routers and switches, developers of P2P and IRC software, not to mention your local desktop PC. In theory, new devices would have to be able to override any copy or retransmission commands generated by the end-user, including such old fashioned Unix commands like "cp."

Further, the bill contains no provision to deal with copylefted works with limited rights claimed under such provisions as the GNU General Public License or similar licenses. Even programmers who distribute their code for free would be prohibited from releasing newer versions -- unless the application included the federally approved copy-control technology. Imagine the world uproar if a Chinese government or some other "non-democratic" government mandated that every published work carry an official, government-approved electronic stamp. Effectively, that is what would be required by the Hollings bill.

In addition, there's no provision to help small, independent content developers mark their own content, should they wish to restrict it. The Hollings bill effectively converts the common law of copyright into another private market for the big copyright holders. At best it places a burden on small developers and independent producers. At worst, it shuts down independent content developers altogether.

A couple of analysts I spoke to doubted the legislation would pass but suggested that its consideration would give air cover to industry groups such as the DVD Copy Control Association, which would like to create a private-sector version of copy control that might be even more restrictive than the Hollings bill. One suggested that even placing the CBDTPA as a bill before Congress would make it far more difficult to accuse DCCA members of collusion or anticompetitive practices if they spec'd the proposed "Video Watermarking Group" copy control standard within the next 60 days.

The investment community has already begun to speculate about which chip and technology developers might have an inside edge if copy protection takes off. Much of the speculation centered around firms like Concurrent Computer, SeaChange International and nCUBE. These firms have been AOL's prime technical partners as it contemplates expansion of its digital-capable cable infrastructure in several of America's largest cities, and could play an important part in adding copy protection capabilities to these networks. Others have focused their attention on Digimarc and Macrovision, both would-be developers of the new copy control technology.

While there are likely to be a few corporate winners, most observers from the IT community warn that the IT community would face a disaster if the CBDTPA actually passed into law. Jim Raposa of eWeek wrote that the Consumer Broadband and Television Promotion Act was the "greatest threat that America's technology infrastructure has ever faced." Raposa and others suggest that the market for new technology would dry up as consumers would try to hold on to older PCs, software and telecommunications equipment that would likely work better and have fewer restrictions on their use. In addition, a massive gray market in machines purchased overseas or in Canada would likely spring up overnight. The result could be a death blow for the U.S. tech industry. Raposa wrote: "Osama Bin Laden himself couldn't come up with a better way to strike at America's tech economy."

What you can do?

If you find this objectionable, you have a couple of options. You can appeal to the Senate to defeat the bill, knowing that the media industry is lining up behind it --- or you can persuade Hollings and his allies that promoting this kind of legislation will come at a political cost.

Grassroots organizations that oppose the CBTPA are springing up at tech sites all over the Web. Many of these sites suggest sending email to your local member of Congress. Vermont Democratic Senator Patrick Leahy, no friend of the proposed legislation, together with Utah Republican Senator Orrin Hatch, is soliciting comments via an online form at http://judiciary.senate.gov/special/input_form.cfm?comments=1. Likewise, U.S. Representative Howard Coble, the chairman of the House Subcommittee on the Courts, the Internet and Intellectual Property, is accepting comments. Leahy has virtually guaranteed opponents that the legislation will not make it to the Senate floor this year, but all bets are off following the 2002 elections.

There is an alternative to email, or even hand written letters, and personal visits to your local senator. Properly applied, it might be far more effective.

All politics is local, and nowhere is this more true than South Carolina. Over the last couple of election cycles, Hollings has kept his seat by only the narrowest of margins. It has been suggested that it is well past time for Hollings' relationships to the entertainment conglomerates to cost him politically at home.

Politics in South Carolina is conservative, but there's a strong populist streak that doesn't reward politicians who get too close to special interests, and the entertainment industry is particularly suspect in much of the Deep South. The music and television industries are one of the few business sectors that have contributed more heavily to Democratic politicians than Republicans. A big chunk of that money has gone to Hollings. In 1998, the last time Hollings ran for election, the entertainment industry contributed nearly a quarter of Hollings' total PAC and corporate contributions for that year, totaling at least $215,000. By contrast Senator Barbara Boxer (D-California) received roughly $300,000 from the entertainment industry. One difference: Boxer was running a campaign in a state with a population of 34 million people, nearly 10 times the size of South Carolina. Another difference: Boxer is from a the state where the entertainment industry is headquartered. If there is a significant film industry in South Carolina, it is well hidden away. South Carolina is one of the poorest states in the United States, and voters there may wonder why their senator has spent so much time on an issue of virtually no economic interest to its citizens.

Local observers suggest that, unfortunately, the issue might not energize many local Republicans against Hollings. Based on some of their public documents the party there has become increasingly concerned with a variety of hot-button social issues, including prayer in schools, abolishing pornography, and requiring all students to recite the Pledge of Allegiance. It might take a lot of effort to have them lead a fight against any legislative efforts by Hollings that would restrict freedom of speech.

Local Democrats may be a different matter. That party has changed considerably since Hollings first emerged as a political figure. In recent years the party has become both more liberal, more black and more female, a point made most emphatically by state party executive director Joanie Lawson. Despite the growth of money politics in the state, Lawson and other high-profile local activists such as Vida Miller, Jimmy Stuckey, Maxie Duke, Flo Rosse, and Dot Jackson provide the critical organizational muscle Democrats like Hollings need to win elections in South Carolina. Many of these activists cut their teeth during the civil rights and antiwar era of the '60s and '70s, when the exercise of free speech sometimes came at a terrible cost.

Hollings has frequently had an often-troubled relationship with many of these activists since the days when he, as governor, first flew the Confederate flag on the dome of the state capitol. They may not be prepared to cut him much slack if he cannot defend his sponsorship of the CBDTPA at such "must-attend" traditional party affairs as the 122nd Galivants Ferry Stump Meeting to be held this May. A blizzard of email last year failed to dissuade Hollings from continuing to sponsor anti-consumer, anti-free speech legislation back in Washington. A few quiet words from local activists back home might be far more effective.