The bad news couldn't be clearer: "It is unlawful to manufacture, import, offer to the public, provide or otherwise traffic in any interactive digital device that does not include and utilize certified [DRM] security technologies."
So begins the draft of a bill obediently proposed by US Senators Fritz Hollings (Democrat, South Carolina) and Ted Stevens (Republican, Alaska) on behalf of their entertainment and software industry patrons. The draft was first published by Wired News Chief Washington Correspondent Declan McCullagh, and is available in part on his Politech Web site here, along with related materials.
The proposed bill, called the Security Systems Standards and Certification Act (SSSCA), would mean that DRM (Digital Rights Management) technology must be incorporated into every single gizmo in your house, car, knapsack and office. Into your hard drive (CPRM, anyone?); into your CD-ROM drive; into your DVD player; into your DiskMan; into your television, and so on ad nauseum.
It would close all the irritating little loopholes in the DMCA right around the necks of consumers, where, the industry reckons, the pressure rightly belongs.
Only one puny exception is made to permit the recording of broadcasts for time-shifting. Gone will be your (currently sketchy) right to make archival copies of digital works in the same or different formats.
Conveniently, and by design, the words "fair use" appear nowhere in the draft. The industry lobbyists never liked that troublesome phrase in the DMCA, so now it's gone.
Another glaring omission is any assurance that DRM-enabled media must be backward compatible with older hardware legally purchased; or that new, compliant hardware must be backward compatible with older digital media legally purchased.
One assumes that the threat of boycotts and mass violence would keep our venerable software and media giants from temptation along these lines, but there is no technological barrier to rendering new hardware incapable of playing, say, an older CD with no DRM features, or to rendering new, DRM-enabled media unplayable on older hardware. In that case, buy one and you've got to replace the other -- and surely, it's only a matter of time before you'll be buying one.
Might these two Senate lap-dogs really be prepared to accommodate such consumer extortion? We hope not, but the answer is, yes, they may well. This is because the bill offers an incredible tidbit: an antitrust exemption.
"When the Secretary finds that it is required by the public interest, the Secretary shall exempt a person participating in a meeting or discussion described in subsection (a) from the antitrust laws to the extent necessary to allow the person to proceed with the activities approved in the order."
It's limited, sure; but how far could the industry stretch it? Given its vast legions of shysters and lobbyists, pretty far, we'd say. Any successful future antitrust action would of course rely in part on the initial horse-trading sessions. These would be placed conveniently beyond the reach of Justice.
If the act were passed, the entertainment and software industries would be given twelve months in which to agree on broad DRM standards acceptable to the Commerce Department, or see the government do it for them. If they fail to reach agreement, NIST (the National Institute of Standards and Technology) and the US Copyright office would make the call for them -- and you. ®