Some nights I have a nightmare: I’m living in a quietly horrifying scene that’s dark, wet, and narcotic. Right out of Blade Runner or Max Headroom, media drips everywhere. I dream that, as a whole we’ve become slow and dim-witted because ten people control everything we see and hear, using the rest of us as hypnotized pawns in their corporate machinations. Then I wake up and realize that it wasn’t a dream at all. We are living in that future but there’s a glimmer of light that we may be waking from our stupor.
The entertainment industry, having been fortified by the Recording Industry Association of America (RIAA) getting a court to shut down Napster and getting the No Electronic Theft Act signed into law, is feeling its oats. Jack Valenti, head of the Motion Picture Association of America (MPAA), is insisting that the technology industry institute copy-protection in all consumer electronic devices and personal computers or he will have Congress do it.
Valenti’s comments were made during the Commerce Department’s “Understanding Broadband Demand: Digital Content and Rights Management” workshop in mid-December 2001.
It’s clear from the list of participants — Disney, AOL-Time Warner, NewsCorp, IBM, Sony, Vivendi, and all the rest of the usual suspects — that the entertainment industry was well represented.
The questions posed by the participants were shocking in their faux, yet conspicuously uninformed naiveté:
- Is digital media coming online?
- What are the barriers to more digital media online?
- What solutions would facilitate more digital media coming online?
Are we really expected to believe that an executive vice president from Disney, AOL-Time Warner’s vice president of domestic public policy, a NewsCorp vice president, and IBM’s director of public policy don’t know the answers to these questions? The intent of this workshop clearly wasn’t to answer any questions, rather it was to stage a dog and pony show — complete with barely-veiled threats of government intervention — to get the technology industry to comply with the entertainment industry’s wishes.
The Commerce Department made an embarrassing mistake when it drew up its invitation list for this shindig. Of the two glaring absentees — Microsoft and the public interest — the former is easily explained and the latter is just as easily explained away.
Microsoft is very busy working on its digital rights management infrastructure and has struggled not to sully itself in this dispute. You can bet the farm that Microsoft will attempt to insinuate itself into any sort of entertainment transaction that happens on the net. That’s a given. The entertainment industry probably isn’t wild about having to split what it considers to be its pie with Microsoft, and maybe they’re still holding out for an alternative, but that writing is already on the wall.
But what about us, the consumers, the “public” in public interest. We count only as much as we consume. When we stop consuming entertainment, we stop mattering one whit to the entertainment industry. We’re like rednecks at a fancy restaurant; they don’t really like to serve us, and they try to keep us at a table in the corner back by the kitchen out of sight, but they’ll take our money. We’re beneath them, you see.
At the workshop, Valenti threatened to unleash his tired Congressional hounds. Senator Fritz Hollings (D-South Carolina) has been waving drafts of his Security Systems Standards and Certification Act (SSSCA) around since last summer. The SSSCA would make it illegal to manufacture or sell “any interactive digital device that does not include and utilize certified security technologies” and prohibits the distribution of copyrighted material with security measures disabled.
What’s most disconcerting about the SSSCA is that it melds with the Digital Millennium Copyright Act (DMCA) to hit consumers with a double-whammy. Where the DCMA punishes individuals for circumventing copyright protection, the SSSCA forces individuals to purchase (and subsidize) digital systems with copy protection.
The SSSCA and proposals like it are seen by many to infringe on the fair use element of copyright law. Section 107 of the Copyright Act places a fair use limitation on the exclusive rights granted in copyright. Specifically, reproduction of protected works for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
Most of the applications of fair use relate to education and use of copyrighted material in the classroom, but the law clearly says that individual consumers also have the right of fair use of copyrighted material they may license.
Predictably, the entertainment moguls have a different interpretation that would indicate they are living in some sort of bizarre parallel universe: “There is no right to fair use,” claimed Disney’s head of government relations, Preston Padden at the Commerce workshop. “Fair use is a defense against infringement.”
If you’re wondering just how clueless these media moguls are (and Padden’s statement was pretty clueless; the Audio Home Recording Act of 1992, for example, specifically prohibits copyright owners from preventing consumers from making a copy of a CD), consider that if the government was to codify a universal digital rights management system, chances are pretty good that it would include significant fair use rights. Bruce Mehlman, the Commerce Department’s assistant secretary for technology policy said as much at the roundtable, according to Wired News: “The irony is if government builds the technical standard, it might include bigger fair use (rights) that the private owners wouldn’t build in.”
Some of our more intelligent lawmakers are starting to take notice of this media land grab on the part of the entertainment conglomerates. On January 4, 2002, for example, Rep. Rick Boucher (D-Virginia) sent a letter to two of the entertainment industry’s trade associations questioning the newly-implemented copy protection on some music CDs that prevent consumers from exercising their fair use rights. Boucher wants to know, among other things, what methods have been used to constrain the functionality of computers and other digital devices in accordance with the Audio Home Recording Act of 1992.
What Jack Valenti and his RIAA cohort Hillary Rosen don’t understand is that when they try to control the flow of bits the sales of their atomized products drop precipitously. It happened with Napster — CD sales dropped drastically after the court decision to neuter Napster — and it will happen much worse with any sort of mandatory digital rights management system. We may be the media lords worst nightmare, but we’re also their customers. Parse that.