March 28, 2003 7:37 PM PST
DMCA critics decry state-level proposals
Quietly, opponents said, with few people paying close attention, state legislators are considering bills that would be even broader than the controversial DMCA, which restricts bypassing copy-protection measures.
The DMCA critics reacted with dismay this week after learning about the existence of the state bills when a lobbyist flagged one as disturbing, an industry source said. On Friday, library groups quickly dashed off a note to Arkansas and Colorado warning politicians there that their "proposed legislation is deeply flawed and should be rejected."
"The entertainment companies state that these laws need to be updated to combat digital piracy," said the letter from the Association of Research Libraries, the American Association of Law Libraries and the American Library Association. "While digital piracy is a serious problem, some of the proposed amendments will undermine the ability of libraries to provide important information services."
But whether the proposals are an attempt to unjustly restrict computer users' freedom to tinker or a reasonable response to the threat of piracy depends on whom you talk to. The movie industry, which backs the proposals, says DMCA opponents are overreacting.
The group primarily responsible for the state bills is the Motion Picture Association of America, one of the most vocal supporters of the federal DMCA. The MPAA rejects the characterization of the state legislation as similar to the federal law, saying the state measures update cable and satellite protection laws to catch up with today's hacking technologies.
"The intention of this legislation is to protect services and audiovisual works, music, and sound recordings in the digital age," said Vans Stevenson, the MPAA's senior vice president for state legislative affairs. "It provides state remedies for people who steal or pirate those works. It's an extension of what we've done for years with cable television and phone services at the state level. It's nothing new. For the life of me, I don't see why anybody would object to that."
Some of the proposals have already become law and have been on the books for some time. In Maryland, residents may not possess or distribute software that can take music or video transmitted over the Internet and convert it to another format, unless they have the copyright holder's explicit permission. The law arguably restricts reverse engineering as well, and punishes violators with up to three years in state prison.
The law went through in May 2001, passing the Maryland Senate with only one nay vote and clearing the House unanimously.
Though, like similar measures in other states, the Maryland law has been characterized as a way to stop theft of cable and cellular phone service, it stretches to Internet communications, hardware and software as well. It's arguably more sweeping than the federal DMCA, which contains exemptions for reverse engineering, for encryption research and for librarians. The DMCA also created a process that the Library of Congress can use to identify additional exemptions; the state bills do not include such procedures.
The MPAA's Stevenson said laws like the one in Maryland already have been enacted in Virginia, Delaware, Illinois and Michigan and that there has been nothing underhanded about their adoption. He said that he testified before the Maryland legislature in an open process where the public could participate and that other MPAA representatives have appeared in other state capitals.
"These statutes are all about theft. They're all about piracy and theft," Stevenson said. "I don't know anybody who objects to laws that (advance) as technology changes, and as the ability to steal things increases. Who objects to that? It's like saying, 'I object to a shoplifting law that prohibits stealing DVDs from Blockbuster.'"
But a trade group for Internet service providers says it was blindsided by the MPAA's latest efforts.
"They were in four states before we even saw them doing this," said David McClure, president of the U.S. Internet Industry Association.
"Basically, (the bills) outlaw any device they don't like," McClure said. "Any technology they don't like is banned. Not only is it banned, but it opens you to criminal penalties for its use. If you use a computer, you could be a criminal. (They don't) require that a computer be used for copyright infringement, just that it could potentially be used for copyright infringement."
A Colorado bill would restrict distributing software or hardware "capable of defeating or circumventing" copy protection technology.
Texas politicians are considering a proposal introduced this month saying an Internet user may not "conceal from a communication service provider...the existence or place of origin or destination of any communication." That would restrict anonymous Web browsing, or using an encrypted communication to send and receive e-mail. Ed Felten, a Princeton University computer scientist, says the Texas bill would outlaw firewalls using the popular Network Address Translation scheme as well.
"This has obvious implications for the right of anonymity online and the right to create tools such as proxy servers that have a lot of legitimate uses aside from their ability to facilitate anonymous speech," said Fred von Lohmann, a staff attorney at the Electronic Frontier Foundation.
The MPAA's Stevenson said the Texas bill--which is more extensive than the Maryland one--was the product of input from many groups, not merely the MPAA.
A representative for the Recording Industry Association of America, which along with the MPAA has been one of the most vocal supporters of the DMCA, said the group was not involved with drafting the state bills.