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Law & Technology
Law and TechnologyThe CBDTPA and the DMCA: Unpronounceable Threats To Your Rights
By Deborah Pierce
May 09, 2002 -- You've just bought a CD from your favorite band that you've been awaiting for months. After only one listen you know it's destined to become one of your all-time favorites. You want to make a copy of it so you can listen to it in your car. You also want to put a couple of the songs on your latest "greatest hits" CDs of all of your favorite songs.Or, imagine that you've been on vacation for a couple of weeks and have taped episodes of your favorite TV show. Now you're ready to catch up and so flick on your VCR.
Under the CBDTPA the above acts will be illegal.
The CBDTPA, the inappropriately named "Consumer Broadband and Digital Television Promotion Act", was put forth in Congress this term by Senator Fritz Hollings (D-SC). The ostensible purpose of this bill is to stamp out piracy (a worthwhile goal), and make the Internet safe for Disney, et. al. to make available movies, music, and other content. But, like other bad copyright laws that have come before it, the CBDTPA will likely have a chilling effect on industry and consumers.
Copyright, fair use, and copy protection
Under the guise of protecting copyrighted works, the CBDTPA would all but gut the "fair use" rights we have in the types of content we purchase, whether that content is music, literature or programs and movies we watch on TV.
Whether an activity is deemed to be infringing someone's copyright, or whether it is a "fair use" of that copyrighted work is not always obvious. The famous Betamax Supreme Court case (see the sidebar) deemed that using a VCR to make a copy of a TV show so that you can watch it at some more convenient time is a fair use. For music, the Audio Home Recording Act (AHRA) allows you to make copies of music that you own for your own personal non-commercial use.
"Copy-protected" works--for example, CDs that have some kind of encryption or other digital protection embedded in it--add a new wrinkle. The Digital Millennium Copyright Act (DMCA), which went into effect in 1998, prohibits you from "circumventing" copy-protections placed on a CD--even if you have legally purchased that CD.
This means that you cannot legally make a copy of a CD that you own if it is copy-protected. Even though under the AHRA you can make copies of songs you own for your own personal, non-commercial use, if they are copy-protected, you are prohibited from defeating the encryption in order to make the copy that you are otherwise allowed to legally make!
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Text of the CBDTPA - the bill number is S.2048 http://thomas.loc.gov/ (type in S.2048 in the search bar) Betamax Case SONY CORP. v. UNIVERSAL CITY STUDIOS, INC., 464 U.S. 417 (1984) 464 U.S. 417 Electronic Frontier Foundation DMCA/Sklyarov case http://www.eff.org "What Hollings' Bill Would Do" by Declan McCullagh, Wired (online) http://www.wired.com/news/politics/0,1283,51275,00.html "Hollings Howls Will Have to Wait" by Declan McCullagh, Wired (online) http://www.wired.com/news/politics/0,1283,51425,00.html |
The CBDTPA threatens to go even further than the DMCA. Not only does it prohibit people from circumventing or disabling copy-protections on content that they own, but the CBDTPA also expressly requires that manufacturers, sellers, and importers of any kind of consumer "digital media device" must come with copy-protection that conforms with standards set by the federal government. In the bill, "digital media device" is defined as hardware or software that reproduces copyrighted works in digital form; converts those works into a form that makes the images and sounds visible or audible; or retrieves or accesses the works in digital form and transfers them so that the images or sounds are able to be visible or audible. That's pretty broad.
The CBDTPA covers PCs as well as music devices and VCRs. It doesn't apply to devices that were made prior to adoption of the CBDTPA--so you might want to hang onto those old VCRs, MP3 players, and computers, just in case.
So what does that do to your ability to record TV shows? The CBDTPA has an exception for taping broadcast TV. Looking ahead a few years, though, most makers of digital TVs have indicated that they intend to encrypt their signals. Can you circumvent these copy-protections in order to make a tape of a broadcast TV show? Like the DMCA, the CBDTPA has an anti-circumvention provision in it; so taping broadcast TV shows is likely to become illegal as well.
Can you make backups of software that you own? The bill as written does not address this--so the answer might well be "not if it's copy-protected".
Make no mistake about it, this is a very anti-consumer bill. The only groups that this bill would benefit are the entertainment industries (movie studios, record labels, publishers, etc.), at the expense of consumers and the tech industry. Consumer groups as well as technology groups are against it. It's up to all of us to make sure that bills like this don't get passed.
What you can do
- Refuse to buy copy-protected media--CDs, DVDs, etc. Responsible web sites like Amazon will tell you if a CD is copy-protected, but if you are unsure whether a CD or DVD is copy-protected, find out before you buy.
- Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, is opposed to the CBDTPA, and has plans to prevent it from becoming law this year. In the best case scenario that means we have one more year to protest. Even though as a Washington state resident you can't vote for him, send him a letter of support.
- Write to your congress persons and let them know that you oppose the CBDTPA.
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