The Consumer Broadband and Digital Television Promotion Act, or CBDTPA, was introduced to the United States Senate on March 21, 2002 by Senator Fritz Hollings (D-SC). The bill is a slightly less broad revision of the Security Systems Standards and Certification Act; if passed, it would require most, if not all, new hardware and software to implement a government-approved digital rights management scheme.

The bill has recieved strong backing from Disney, along with the motion picture and record industries, but faces strong opposition from the technology sector, and even some Senators; Senator Patrick Leahy (D-VE), chairman of the Senate Judiciary committee, has gone so far as to say that he intends to prevent the bill from becoming law this year; however, even if the bill fails in the Senate, similar legislation is being drafted by Representative Adam Schiff (D-CA), and will likely be introduced to the House of Representatives in the next few months. One way or another, this is going to be a very interesting political battle.


References
http://www.wired.com/news/politics/0,1283,51400,00.html
http://www.wired.com/news/politics/0,1283,51274,00.html
http://www.wired.com/news/politics/0,1283,51425,00.html
http://cryptome.org/broadbandits.htm

Text of the bill:

Consumer Broadband and Digital Television Promotion Act (Introduced in the Senate)

S 2048 IS

107th CONGRESS

2d Session

S. 2048

To regulate interstate commerce in certain devices by providing for private sector development of technological protection measures to be implemented and enforced by Federal regulations to protect digital content and promote broadband as well as the transition to digital television, and for other purposes.

IN THE SENATE OF THE UNITED STATES

March 21, 2002

Mr. HOLLINGS (for himself, Mr. STEVENS, Mr. INOUYE, Mr. BREAUX, Mr. NELSON of Florida, and Mrs. FEINSTEIN) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation


A BILL

To regulate interstate commerce in certain devices by providing for private sector development of technological protection measures to be implemented and enforced by Federal regulations to protect digital content and promote broadband as well as the transition to digital television, and for other purposes.

SECTION 1. SHORT TITLE; TABLE OF SECTIONS.

    (a) SHORT TITLE- This Act may be cited as the `Consumer Broadband and Digital Television Promotion Act'.

    (b) TABLE OF SECTIONS- The table of sections for this Act is as follows:

      Sec. 1. Short title; table of sections.

      Sec. 2. Findings.

      Sec. 3. Adoption of security system standards and encoding rules.

      Sec. 4. Preservation of the integrity of security.

      Sec. 6. Prohibition on removal or alteration of security technology; violation of encoding rules.

      Sec. 7. Enforcement.

      Sec. 9. Definitions.

      Sec. 10. Effective date.

SEC. 2. FINDINGS.

    The Congress finds the following:

      (1) The lack of high quality digital content continues to hinder consumer adoption of broadband Internet service and digital television products.

      (2) Owners of digital programming and content are increasingly reluctant to transmit their products unless digital media devices incorporate technologies that recognize and respond to content security measures designed to prevent theft.

      (4) Current agreements reached in the marketplace to include security technologies in certain digital media devices fail to provide a secure digital environment because those agreements do not prevent the continued use and manufacture of digital media devices that fail to incorporate such security technologies.

      (5) Other existing digital rights management schemes represent proprietary, partial solutions that limit, rather than promote, consumers' access to the greatest variety of digital content possible.

      (6) Technological solutions can be developed to protect digital content on digital broadcast television and over the Internet.

      (7) Competing business interests have frustrated agreement on the deployment of existing technology in digital media devices to protect digital content on the Internet or on digital broadcast television.

      (8) The secure protection of digital content is a necessary precondition to the dissemination, and on-line availability, of high quality digital content, which will benefit consumers and lead to the rapid growth of broadband networks.

      (9) The secure protection of digital content is a necessary precondition to facilitating and hastening the transition to high-definition television, which will benefit consumers.

      (10) Today, cable and satellite have a competitive advantage over digital television because the closed nature of cable and satellite systems permit encryption, which provides some protection for digital content.

      (11) Over-the-air broadcasts of digital television are not encrypted for public policy reasons and thus lack those protections afforded to programming delivered via cable or satellite.

      (12) A solution to this problem is technologically feasible but will require government action, including a mandate to ensure its swift and ubiquitous adoption.

      (13) Consumers receive content such as video or programming in analog form.

      (14) When protected digital content is converted to analog for consumers, it is no longer protected and is subject to conversion into unprotected digital form that can in turn be copied or redistributed illegally.

      (15) A solution to this problem is technologically feasible but will require government action,

including a mandate to ensure its swift and ubiquitous adoption.

      (16) Unprotected digital content on the Internet is subject to significant piracy, through illegal file sharing, downloading, and redistribution over the Internet.

      (17) Millions of Americans are currently downloading television programs, movies, and music on the Internet and by using `file-sharing' technology. Much of this activity is illegal, but demonstrates consumers' desire to access digital content.

      (19) A solution to this problem is technologically feasible but will require government action, including a mandate to ensure its swift and ubiquitous adoption.

      (20) Providing a secure, protected environment for digital content should be accompanied by a preservation of legitimate consumer expectations regarding use of digital content in the home.

      (21) Secure technological protections should enable content owners to disseminate digital content over the Internet without frustrating consumers' legitimate expectations to use that content in a legal manner.

      (22) Technologies used to protect digital content should facilitate legitimate home use of digital content.

      (23) Technologies used to protect digital content should facilitate individuals' ability to engage in legitimate use of digital content for educational or research purposes.

SEC. 3. ADOPTION OF SECURITY SYSTEM STANDARDS AND ENCODING RULES.

    (a) Private Sector Efforts-

      (1) IN GENERAL- The Federal Communications Commission, in consultation with the Register of Copyrights, shall make a determination, not more than 12 months after the date of enactment of this Act, as to whether--

        (A) representatives of digital media device manufacturers, consumer groups, and copyright owners have reached agreement on security system standards for use in digital media devices and encoding rules; and

        (B) the standards and encoding rules conform to the requirements of subsections (d) and (e).

      (2) Report to the commerce and judiciary committees- Within 6 months after the date of enactment of this Act, the Commission shall report to the Senate Committee on Commerce, Science and Transportation, the Senate Committee on the Judiciary, the House of Representatives Committee on Commerce, and the House of Representatives Committee on the Judiciary as to whether--

        (A) substantial progress has been made toward the development of security system standards and encoding rules that will conform to the requirements of subsections (d) and (e);

        (B) private sector negotiations are continuing in good faith;

        (C) there is a reasonable expectation that final agreement will be reached within 1 year after the date of enactment of this Act; and

        (D) if it is unlikely that such a final agreement will be reached by the end of that year, the deadline should be extended.

    (b) AFFIRMATIVE DETERMINATION- If the Commission makes a determination under subsection (a)(1) that an agreement on security system standards and encoding rules that conform to the requirements of subsections (d) and (e) has been reached, then the Commission shall--

      (1) initiate a rulemaking, within 30 days after the date on which the determination is made, to adopt those standards and encoding rules; and

      (2) publish a final rule pursuant to that rulemaking, not later than 180 days after initiating the rulemaking, that will take effect 1 year after its publication.

    (c) NEGATIVE DETERMINATION- If the Commission makes a determination under subsection (a)(1) that an agreement on security system standards and encoding rules that conform to the requirements of subsections (d) and (e) has not been reached, then the Commission--

      (1) in consultation with representatives described in subsection (a)(1)(A) and the Register of Copyrights, shall initiate a rulemaking, within 30 days after the date on which the determination is made, to adopt security system standards and encoding rules that conform to the requirements of subsections (d) and (e); and

      (2) shall publish a final rule pursuant to that rulemaking, not later than 1 year after initiating the rulemaking, that will take effect 1 year after its publication.

    (d) SECURITY SYSTEM STANDARDS- In achieving the goals of setting open security system standards that

will provide effective security for copyrighted works, the security system standards shall ensure, to the extent practicable, that--

      (1) the standard security technologies are--

        (A) reliable;

        (B) renewable;

        (C) resistant to attack;

        (D) readily implemented;

        (E) modular;

        (F) applicable to multiple technology platforms;

        (G) extensible;

        (H) upgradable;

      (2) any software portion of such standards is based on open source code.

    (e) Encoding Rules-

      (1) LIMITATIONS ON THE EXCLUSIVE RIGHTS OF COPYRIGHT OWNERS- In achieving the goal of promoting as many lawful uses of copyrighted works as possible, while preventing as much infringement as possible, the encoding rules shall take into account the limitations on the exclusive rights of copyright owners, including the fair use doctrine.

      (2) PERSONAL USE COPIES- No person may apply a security measure that uses a standard security technology to prevent a lawful recipient from making a personal copy for lawful use in the home of programming at the time it is lawfully performed, on an over-the-air broadcast, premium or non-premium cable channel, or premium or non-premium satellite channel, by a television broadcast station (as defined in section 122(j)(5)(A) of title 17, United States Code), a cable system (as defined in section 111(f) of such title), or a satellite carrier (as defined in section 119(d)(6) of such title).

    (f) MEANS OF IMPLEMENTING STANDARDS- The security system standards adopted under subsection (b), (c), or (g) shall provide for secure technical means of implementing directions of copyright owners for copyrighted works.

    (g) Commission May Revise Standards and Rules Through Rulemaking-

      (1) IN GENERAL- The Commission may conduct subsequent rulemakings to modify any security system standards or encoding rules established under subsection (b) or (c) or to adopt new security system standards that conform to the requirements of subsections (d) and (e).

      (2) CONSULTATION REQUIRED- The Commission shall conduct any such subsequent rulemaking in consultation with representatives of digital media device manufacturers, consumer groups, and copyright owners described in subsection (a)(1)(A) and with the Register of Copyrights.

      (3) IMPLEMENTATION- Any final rule published in such a subsequent rulemaking shall--

        (A) apply prospectively only; and

        (B) take into consideration the effect of adoption of the modified or new security system standards and encoding rules on consumers' ability to utilize digital media devices manufactured before the modified or new standards take effect.

    (h) MODIFICATION OF TECHNOLOGY BY PRIVATE SECTOR-

      (1) IN GENERAL- After security system standards have been established under subsection (b), (c), or (g) of this section, representatives of digital media device manufacturers, consumer groups, and copyright owners described in subsection (a)(1)(A) may modify the standard security technology that adheres to the security system standards rules established under this section if those representatives determine that a change in the technology is necessary because--

        (A) the technology in use has been compromised; or

        (B) technological improvements warrant upgrading the technology in use.

      (2) IMPLEMENTATION NOTIFICATION- The representatives described in paragraph (1) shall notify the Commission of any such modification before it is implemented or, if immediate implementation is determined by the representatives to be necessary, as soon thereafter as possible.

      (3) COMPLIANCE WITH SUBSECTION (d) REQUIREMENTS- The Commission shall ensure that any modification of standard security technology under this subsection conforms to the requirements of subsection (d).

SEC. 4. PRESERVATION OF THE INTEGRITY OF SECURITY.

    An interactive computer service shall store and transmit with integrity any security measure associated with standard security technologies that is used in connection with copyrighted material such service transmits or stores.

SEC. 5. PROHIBITION ON SHIPMENT IN INTERSTATE COMMERCE OF NONCONFORMING DIGITAL MEDIA DEVICES.

    (a) IN GENERAL- A manufacturer, importer, or seller of digital media devices may not--

      (1) sell, or offer for sale, in interstate commerce, or

      (2) cause to be transported in, or in a manner affecting, interstate commerce,

    a digital media device unless the device includes and utilizes standard security technologies that adhere to the security system standards adopted under section 3.

    (b) EXCEPTION- Subsection (a) does not apply to the sale, offer for sale, or transportation of a digital media device that was legally manufactured or imported, and sold to the consumer, prior to the effective date of regulations adopted under section 3 and not subsequently modified in violation of section 6(a).

SEC. 6. PROHIBITION ON REMOVAL OR ALTERATION OF SECURITY TECHNOLOGY; VIOLATION OF ENCODING RULES.

    (a) REMOVAL OR ALTERATION OF SECURITY TECHNOLOGY- No person may--

      (1) knowingly remove or alter any standard security technology in a digital media device lawfully transported in interstate commerce; or

      (2) knowingly transmit or make available to the public any copyrighted material where the security measure associated with a standard security technology has been removed or altered, without the authority of the copyright owner.

    (b) COMPLIANCE WITH ENCODING RULES- No person may knowingly apply to a copyrighted work, that has been distributed to the public, a security measure that uses a standard security technology in violation of the encoding rules adopted under section 3.

SEC. 7. ENFORCEMENT.

    (a) IN GENERAL- The provisions of section 1203 and 1204 of title 17, United States Code, shall apply to any violation of this Act as if--

      (1) a violation of section 5 or 6(a)(1) of this Act were a violation of section 1201 of title 17, United States Code; and

      (2) a violation of section 4 or section 6(a)(2) of this Act were a violation of section 1202 of that title.

    (b) STATUTORY DAMAGES- A court may award damages for each violation of section 6(b) of not less than $200 and not more than $2,500, as the court considers just.

SEC. 8. FEDERAL ADVISORY COMMITTEE ACT EXEMPTION.

    The Federal Advisory Committee Act (5 U.S.C. App.) does not apply to any committee, board, commission, council, conference, panel, task force, or other similar group of representatives of digital media devices and representatives of copyright owners convened for the purpose of developing the security system standards and encoding rules described in section 3.

SEC. 9. DEFINITIONS.

    In this Act:

      (1) STANDARD SECURITY TECHNOLOGY- The term `standard security technology' means a security technology that adheres to the security system standards adopted under section 3.

      (2) INTERACTIVE COMPUTER SERVICE- The term `interactive computer service' has the meaning given that term in section 230(f) of the Communications Act of 1934 (47 U.S.C. 230(f)).

      (3) DIGITAL MEDIA DEVICE- The term `digital media device' means any hardware or software that--

        (A) reproduces copyrighted works in digital form;

        (B) converts copyrighted works in digital form into a form whereby the images and sounds are visible or audible; or

        (C) retrieves or accesses copyrighted works in digital form and transfers or makes available for transfer such works to hardware or software described in subparagraph (B).

      (4) COMMISSION- The term `Commission' means the Federal Communications Commission.

SEC. 10. EFFECTIVE DATE.

    This Act shall take effect on the date of enactment of this Act, except that sections 4, 5, and 6 shall take effect on the day on which the final rule published under section 3(b) or (c) takes effect.

On the Effects of the Consumer Broadband and Digital Television Promotion Act
A node your homework production

Authors Note: This essay was written with the common masses in mind, people generally unfamiliar with technology. Consequently, some technical details have been omitted or simplified to widen the essay's audience. I am well aware that the definition of open source presented here is not exhaustively accurate, nor was it intended to be.

On 21 March 2002, Senator Ernest Hollings introduced the Consumer Broadband and Digital Television Promotion Act (CBDTPA) on the floor of the United States Senate. The bill's purpose is to eliminate digital media piracy, such as the downloading of illegal audio or video files from the Internet. To accomplish this ambitious goal, Congress will require that all digital devices, both hardware and software, contain copyright-protection mechanisms. The effects of this overly-broad legislation will be nothing short of disastrous for both the US consumer and economy, contrary to the claims made by the bill's supporters.

The CBDTPA is, at its heart, the legal manifestation of Hollywood's panic at its latest brush with a new technology; to anyone alive in the early 1980s, this should seem like deja-vu. In 1974, Sony introduced Betamax, a precursor to the now ubiquitous VHS recorder. Not long after the American public embraced this ground-breaking product, Disney and Universal Studios filed lawsuits against Sony, alleging that the Japanese electronics giant was manufacturing a product that would ruin the motion picture industry. With Betamax, it was possible for the first time to create high-quality (at the time) duplications of movies and television broadcasts. Betamax's ease of use, affordability, and quality of the recordings, the plaintiffs complained, would take away all reason for the consumer to purchase movies, and so would drive the visual entertainment industry out of business. In the end, the US Supreme Court sided with Sony, finding that, though the Betamax could be used to record content illegally, it had other, legal, uses which outweighed the concern of piracy (Stevens). Hollywood adapted its business model to conform to the court's ruling and embraced the new technology, making fortunes with Betamax's more popular successor, VHS.

Today, Big Hollywood is again in a fit over a technology which it sees as a threat to its ever-precious bottom line. The Internet, combined with compact file formats such as MPEG Layer 3 (MP3) and DIVX, is crouched, in the eyes of the media giants, ready to pounce and tear the entertainment industry to bits. The CBDTPA is that industry's attempt to fend off this illusory foe. This legislation would require that all digital devices capable of reproducing digital media contain copyright protection schemes (U.S. 1). These schemes must be immune to tampering and removal efforts, forcing them to be intimately intertwined with the operating code of the device.

The bill's definition of "digital device" casts a disturbingly wide net; if it contains digital electronic components, it qualifies. Everything from microwave ovens to the TI83 pocket calculator to hearing aids to answering machines to automobile navigation systems to Christmas ornaments; items which in theory only are capable of media piracy are subject to this bill's provisions (Felten). In his attempt to catch up all media pirates in one grab, Hollings has gone after too much; home devices like these will become illegal unless integrated with copyright management technology, simply because Hollings has chosen to write poorly worded legislation.

Should this bill be passed into law, the American economy would suffer horribly. With such a broad range of products requiring modification, the costs to manufacturers would be immense; recoding the multitude of programs that make digital life possible, operating systems, such as Microsoft Windows, banking software, or the firmware that controls automobile engine's functions, is an incredibly expensive and man-hour intense task. The manufacturers, in turn, would pass on these increased costs to their consumers, many of whom would simply decide that they could do without a new car or refrigerator right now. Also, the international trading sector of the economy would be dealt a severe blow; the CBDTPA makes it illegal to import devices that do not conform to its provisions, and are therefore capable of the duplication that the bill seeks to eliminate (U.S 1). American import businesses would collapse. Other countries would refuse to import American-made crippleware, preferring to buy full-featured devices from other nations without such legislation. Companies based in America would have no choice but to watch their profits decline as overseas electronics buyers shifted their purchasing power to other shores. Alternatively, American businesses would relocate their operations to other countires in order to avoid the Hollings bill, taking with them jobs, capital, and tax dollars.

To many in the technology sector, perhaps the most serious threat this bill poses is to the open source software movement. Open source groups advocate "opening" software to the entire development community, making the inner workings of software transparent so that anyone can see how the program works and rewrite it as he sees fit. The intentional ease of modifying open source projects would make any attempt to incorporate the sort of copyright protection measures required by the Holling's bill an exercise in futility; the first programmer to encounter the modified code would immediately remove it, making the program once again illegal to possess or distribute. Because protection mechanisms applied to open code would be neither reliable nor resistant to attack as required by the CBDTPA, open source would cease to exist in the United States (McCullagh 2). All programmers and developers who worked on such renegade material would be criminals in the eyes of the law and subject to prosecution.

This, the abolishment of the OS alternative, would be most damaging to general consumers. With open source effectively nullified, the US population would be left with only proprietary software from companies such as Microsoft, firms that have shown themselves apathetic at best, antagonistic at worst, to the needs and rights of the American public.

Proprietary code has a track record of being less secure and slower to be fixed than its open source counterpart. For example, in mid-August 2002, a serious flaw was discovered simultaneously in Microsoft's Internet Explorer, the most popular web browser in the world, and KDE's Konqueror, a popular web browser for the Linux operating system. The KDE group published a patch for Konqueror within 24 hours; Microsoft's first action came almost a week later, in the form of a public relations bulletin that did nothing but downplay, incorrectly, the seriousness of the failure in Internet Explorer (In September 2002, Microsoft finally patched the problem, almost a month after its discovery.) (Greene 1-3, 5; Microsoft)

Open source development teams routinely publish bug fixes hours or days after the initial discovery, where it may take weeks or months for an update to be released for a proprietary system, if an update is ever released (Greene 2; Mainz). Large corporations would rather cover up problems with their products and let the end users pay the price for their negligence than admit a blemish to their reputation (Microsoft; Greene 4). Consumers have a right to be speedily informed of the exact nature and severity of problems with the product they have purchased, and a right to have those problems fixed by the manufacturer. With closed source products, consumers must trust in the maker of the program to patch bugs; open source software gives anyone the ability to strengthen and repair code, rather than hope an uncaring, far-removed company will do the job.

Consumers also have rights to the fair use of products they have purchased. These fair use rights have been a vital part in the balancing of the rights of the customer with the rights of the content provider. Consumers may do practically anything with content they have legally published; they may format-shift it (converting to a different media format), they may time-shift it (storing for later use), or they may make as many copies of it as they desire, so long as those copies are not to be sold or given away. That is the primary limitation on fair use rights; the consumer may do whatever he or she wants, so long as it does not infringe on the rightful income of the content producer.

Media companies have been working for decades to erode these rights. They do not want consumers to be able to copy a CD to an MP3 player or their computer, when the company could be making more money by selling special versions of the CD, versions designed for specific media formats, such as the MP3 player. This is the real goal of the CBDTPA: to make more money. The bill would force all new media devices to be approved by the entertainment industry. This is the latest attempt to control where media can be displayed; the bill actually includes language that would override a 1999 court case in which the 9th Circuit Court of Appeals ruled that MP3 players, like the Betamax, are legal (McCullagh 2; O'Scannlain). The industry has proven that it is more than willing to take away the right of consumers to copy that CD to an otherwise-legal platform, forcing the public to buy a new copy whenever they wanted to listen to it on a new device. This was at the heart of the Betamax lawsuit; why should the public be able to rightfully reproduce what we can sell them at a tidy profit?

While the discussion of the negative, supposedly unintended effects of the CBDTPA raise many issues, debate over the bill's publicly admitted purpose raises still more. In a speech to the United States Senate on the day of the bill's introduction, Senator Hollings presented the bill as a godsend to consumers who balked at paying the current rates for broadband Internet connections and high definition television (HDTV) sets.

...millions of law abiding consumers find little reason to spend discretionary dollars on consumer electronics products whose value depends on their ability to receive, display and copy high quality digital content like popular movies, music, and video games. Accordingly, only early adopters have purchased high definition television sets or broadband Internet access, as these products remain priced too high for the average consumer. The facts are clear in this regard. Only two million Americans have purchased HDTV sets. As for broadband, rural and underserved areas aside, there is not an availability problem. There is a demand problem. Roughly 85% of Americans are offered broadband in the marketplace but only 10-12% have signed up. The fact is that most Americans are averse to paying $50 a month for faster access to email, or $2000 for a fancy HDTV set that plays analog movies. But if more high-quality content were available, consumer interest would likely increase.

By unleashing an avalanche of digital content on broadband Internet connections as well as over the digital broadcast airwaves, we can change this dynamic and give consumers a reason to buy new consumer electronics and information technology products. To do so requires the development of a secure, protected environment to foster the widespread dissemination of digital content in these exciting new mediums. (Hollings 1)

According to Hollings, the reason that Americans are failing to embrace HDTV and broadband Internet access en masse is because of the prohibitivly high cost of these technologies. They are expensive because the upper classes, who could otherwise afford the devices, have not shown enough interest for the price to come down in accordance with the principals of supply and demand. The reason there have been so few early buyers for broadband connections and HDTV sets is that there is a lack of high quality content for them to access. In turn, the reason that there is a lack of high quality content online is because the content providers are unwilling to release their materials into cyberspace for fear of rampant piracy. It is then Congress's job to give the HDTV and broadband markets a boost by implementing a wide-reaching piracy solution to qualm the fears of copyright holders.

This explanation of the bill raises a very troubling issue: since when does it fall to Congress or any other part of the government to ensure the success of a product? The entire concept of the free market is based on the idea of natural selection: weaker products that fail to find favor with in marketplace fall to the dust, leaving the better, more popular items to do well. Businesses praise the free market system when their products are a hit, but cry foul when the public fails to take to a new gizmo or gadget as expected. The CBDTPA is an attempt to force two unpopular products, broadband and HDTV, down the throats of the collective America.

There is a saying in business, "You have to spend money to make money." That is exactly what the entertainment industry has done; they have bought representatives in Congress in order to boost their bottom lines at the expense of the American public. The entertainment industry's contributions to the political campaigns of Ernest Hollings have secured that sector a place as one of his top two highest-donating market segments for the past 5 election cycles, according to the Center for Responsive Politics, a group that organizes the mandatory Federal Election Commission campaign finance disclosures (1-5). The media providers have tried, unsuccessfully, to achieve their goals in the court system and were rebuffed by sensible judges. They are now trying an end run around the judicial bench through the halls of Congress. America and the world can only hope that Hollings' colleagues will have as much sense as those court justices.


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