March 27, 2002

Effectively fighting the Hollings bill

- By Jack Bryar -

The senator from Disney World is at it again. Stating that the "absence of robust, ubiquitous protections of digital media ... has led to a lack of content on the Internet and over the airwaves," U.S. Senator Fritz Hollings (D-South Carolina) is once again trying to shut down independent electronic communications in the United States in order
to curry favor with large media conglomerates. Is there any way to reform
South Carolina's junior senator and dissuade him from stomping on the First
Amendment? I think there is.

Hollings' newest proposed legislation is called the Consumer
Broadband and Television Promotion Act, or CBTPA. The CBTPA is a rework
of his earlier proposal, the Security Systems Standards and Certification
Act, or SSSCA. In its newest
form, Hollings' legislation proposes
to mandate content management chips and software in virtually every
electronic device and set in place a government apparatus to make sure such
chips and software are in place and cannot be replaced or overwritten.

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.

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