By Declan McCullagh and Ben Polen for Wired
WASHINGTON -- Jack Valenti predicts that Congress will require copy-protection controls in nearly all consumer electronic devices and PCs.
The lobbyist nonpareil for the Motion Picture Association of America delivered a stark warning to technology firms on Monday: Move quickly to choose standards for wrapping digital content in uncopyable layers of encryption or the federal government will do it for you.
"If we don't sit down and talk, others will do this for us," Valenti said, in a not-so-veiled reference to his allies on Capitol Hill. "Unless you put a marker down for a deadline, nothing gets done."
Valenti's remarks came during a one-day workshop titled "Understanding Broadband Demand: Digital Content and Rights Management." Organized by the U.S. Commerce Department, it was designed to ask whether some form of digital rights management is required before more broadband content appears online.
Hanging over the event was the specter of federal legislation to embed digital rights management in any "interactive digital device," from personal computers to wristwatches. Sen. Fritz Hollings (D-South Carolina) has circulated drafts of his bill, the Security Systems Standards and Certification Act (SSSCA), which is on hold until Congress is done with spending measures and work related to Sept. 11.
Now it may be set to move forward early next year. "I think Senator Hollings and Congressman (Billy) Tauzin do believe in deadlines if we delay in getting things done. If they want to move in, they will," Valenti warned.
His remarks drew applause from the Walt Disney Company, one of the MPAA's member companies and an unabashed fan of Hollings' SSSCA approach.
"I am openly, unabashedly in support of the government stepping in to set standards," said Preston Padden, head of government relations for Disney.
Rhett Dawson, president of the Information Technology Industry Council, said: "I don't think that's a healthy way to do business. We need to look at how these things do on technical standards.... What I don't want to do is start down a path where we're not relying on technical merit, where the threat of legislation is motivating us."
The bill drafted by Hollings, the powerful chairman of the Senate Commerce Committee, represents the next round of the ongoing legal tussle between content holders and their opponents, including librarians, programmers and open-source advocates.
Hollywood executives fret that without strong copy protection in widespread use, digital versions of movies will be pirated as readily as MP3 audio files once were with Napster. With the SSSCA enacted, the thinking goes, U.S. technology firms will have no choice but to insert copy-protection technology in future products.
The SSSCA draft says that it is unlawful to create, sell or distribute "any interactive digital device that does not include and utilize certified security technologies" that are approved by the U.S. Commerce Department. An interactive digital device is defined as any hardware or software capable of "storing, retrieving, processing, performing, transmitting, receiving or copying information in digital form."
It also creates new federal felonies, punishable by five years in prison and fines of up to $500,000. Anyone who distributes copyrighted material with "security measures" disabled or has a network-attached computer that disables copy protection would be covered.
Academics and free-speech groups such as the Electronic Frontier Foundation have savaged the SSSCA. The EFF even has a sample letter to send Congress that argues it will stifle technology and thwart fair use rights.
Disney's Padden wasn't buying it. "There is no right to fair use," Padden said at the event. "Fair use is a defense against infringement."
A Bush administration official suggested that content owners should be careful what they wish for, saying that it might be in their best interests to develop a non-governmental standard. Bruce Mehlman, assistant secretary for technology policy at the Commerce Department, said: "The irony is if government builds the technical standard, it might include bigger fair use (rights) that the private owners wouldn't build in."
For its part, Microsoft doesn't seem to be a huge fan of Hollings' approach.
Andy Moss, director of technology policy at Microsoft, said the "Marketplace should answer this.... Where's the evidence the marketplace doesn't work?"
The SSSCA and existing law work hand-in-hand to steer the market toward using only computer systems where copy protection is enabled. First, the 1998 Digital Millennium Copyright Act (DMCA) created the legal framework that punished people who bypassed copy protection -- and now, the SSSCA is intended to compel Americans to buy only systems with copy protection on by default.
Last week, the first person prosecuted under the DMCA, Russian programmer Dmitri Sklyarov, was allowed to return home under court supervision.