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Amid all the vexing legal dilemmas that have been spawned as copyright owners try to secure their rights in a suddenly digital world, a refreshingly simple issue has finally emerged. Whether you believe that this country should be tightening copyright protections online or loosening them, you should oppose the Hollywood- and record industry-endorsed bill introduced in March by Sen. Ernest Hollings of South Carolina. While the draft legislation, known as the Consumer Broadband and Digital Television Promotion Act, pursues plausible goals, it seeks to achieve them by authorizing mammoth government intrusion into the design of computer hardware and software. The driving force behind the bill is not, as some critics have reflexively claimed, an attempt by copyright holders to deprive consumers of their “right” (i.e., their current ability) to make personal copies of music or movies for home use. The driving force, in fact, is just the opposite. Both the music and film industries have discovered that it is technologically feasible to devise systems that enable consumers to make personal copies of digital files — music, movies, video — while preventing them from widely distributing those files over the Internet via, for instance, Napster-style file-sharing programs. If such a system were in place, consumers could, for instance, “rip” tracks from a CD, transfer them to portable music players, and yet not be able to make the file available to millions of strangers for free. Since 1995, cross-industry working groups have discussed adoption of “open standards” that might facilitate such systems. The systems most commonly discussed rely upon a combination of both encryption and digital watermarking technologies. It would be quite possible today for, say, Warner Music Group to enter into private contracts with a device maker — say, Toshiba — to build a set of secure devices that use an encryption system designed by, for instance, InterTrust Technologies and a watermark designed by, say, Verance Corp. The problem with doing so is that Universal Music Group and its partners in the electronics and information technology industries might choose a competing system, relying upon Microsoft-designed encryption and a Digimarc watermark; Bertelsman Music Group might opt for yet a third system, and so on. Portable devices or CD players that could play only one label’s secure music would be worthless to consumers, while devices that could play all five major labels’ music would be prohibitively expensive and cumbersome. Until consensus can be reached on a single industrywide security system, all such systems are stymied. Thus far, however, conflicting commercial strategies have made consensus impossible. In the wake of the breakdown of the music industry’s security standards talks last year, individual labels have turned to technologically simpler but more draconian solutions, like selling copy-protected CDs that won’t play on computers at all. These cruder solutions really do stop consumers from making “personal copies.” The Hollings legislation seeks to break the logjam by issuing an ultimatum to the information technology and consumer electronics industries: You will have one year to arrive at consensus security system standards — or else. Thereafter the Federal Communications Commission could impose security standards with which all manufacturers of “digital media devices” would have to comply. The definition of such a device is so broad that, as professor Justin Hughes of the University of California, Los Angeles, School of Law told a Senate committee in March, it encompasses “every piece of software, PC, video card, hard drive, CPU, motherboard, PDA, DVD, or CD player, and every monitor manufactured or distributed in our country.” The prospect of gumming up the works of the globe’s most exuberant engine of technological innovation and prosperity by subjecting it to bureaucratic notice-and-comment rule-making is unthinkable. Though there are a handful of precedents for modest government intervention into consumer electronics design, at least one of those — the 1992 requirement that digital audiotape recorders be equipped with a “serial copying management system” — was a notorious commercial and technological failure. More important, there are cultural distinctions between a consumer’s passive relationship with the single-function consumer electronics devices of the past (a TV, VCR or CD player) and his or her interactive relationship with today’s computers and software. Computer users continually invent and discover new functions for their machines, by adding peripheral devices and feeding the computer new software or even designing their own. It is more important to lock the government outside of our computers than it ever was to lock it outside our appliances. I have frequently sided with the protectionists in the digital copyright showdowns to date. I thought Napster was illegal, for instance, and think the Digital Millennium Copyright Act (which prohibits disseminating software designed to strip copy-protection off the files of copyrighted works) is sensible and constitutional. But certain lines must not be crossed in the quest to secure creators’ digitized intellectual property. Sen. Hollings’ bill transgresses those lines by a country mile. Though my guess is that creators can adequately protect their digital wares without legislation of this sort, if events should prove me wrong, the Hollings legislation should still be defeated. If controlling digital property requires government intervention on this scale, then there should be no such control. Digital technology will have rebuffed the legal system’s attempts to tame it, anti-protectionists will have won the war, and it will be time for protectionists like me to raise the white flag. We can’t imperil everyone’s freedom and prosperity in a quixotic quest. The game has to end somewhere.

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