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Copy-control Senator sleeps while fair-use rights burn

Paging Hollings...

Picture a future where distributing Linux is a crime punishable by a hefty fine and a prison sentence. If that sounds ridiculous, then you haven't run into the Security Systems Standards and Certification Act. It's the very latest - and most bizarre - word in political back-scratching from one of South Carolina's U.S. senators. And he'd rather not talk about it, thank you very much.

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 security technologies that adhere to the security systems standards adopted under section 104. This is the heart of the new Security Systems Standards and Certification Act (SSSCA), a draft of legislation proposed by U.S. Senator Ernest "Fritz" Hollings, a Democrat from South Carolina.

Yes, it is vague, and perhaps intentionally so. The SSSCA raises a number of questions, none of which its politically powerful sponsor feels compelled to answer.

Repeated calls to Hollings' office were routed to voicemail or message-takers, and on two occasions, an individual who was unable to do anything - including providing his name - other than repeat the phrase "I'm simply not qualified to comment on this matter," to any question I asked until I hung up the phone.

What is the ominous-sounding section 104, with its security systems standards? According to the draft legislation, the companies that make digital devices and the companies that own copyright content are expected to sit down together and, within 12 months of the SSSCA's passage, come to an agreement on copy-protection standards.

If what these two camps agree on passes muster with the Department of Commerce, eventually compliant copy-protected devices will be created using those standards. If, after two years (Commerce can extend the deadline by another 12 months) the two parties can't agree, then the Department of Commerce can create its own legally-binding standards.

When calling Hollings' office, I merely wanted to know the answers to the following questions:

- What, exactly, is a digital device? Are we talking about just computers, or are we talking about computers, plus MP3 players, television sets, and VCRs? Are we talking about everything digital, and does that mean that the next alarm clock I buy will have to prohibit copying, even if was never intended for that use in the first place?

- How will this affect fair use provisions that currently allow copying of recordings I own for my personal use? Will the argument be that I'm still allowed to make such copies if I can find a pre-SSSCA device, but if I buy such a device from, say, a secondhand store, will that land the shopkeeper (not to mention me) in jail?

- And yeah, what about Linux? How do you make the operating system, where every column inch of source code is available for inspection, SSSCA compliant?

I think this may be a self-answering question: You can't - not unless some drastic changes to current licenses and code distribution are made. If there's a certain level of paranoia in Hollings' office regarding the SSSCA, perhaps it's understandable. From all perspectives, this is nothing more than a blatant attempt to offer a return on investment to campaign donors.

As the chairman of the Senate Commerce Committee, one of the most important committee chairs on Capitol Hill, Hollings has attracted quite a stable of high-profile donors over the years. According to Federal Election Commission data presented by campaign contribution watchdog Open Secrets, there are five major media and entertainment companies in the top 20 list of Hollings' most generous campaign donors. They include AOL Time Warner ($33,500), the Murdoch-owned News Corporation ($28,224), Viacom's CBS ($16,632), the National Association of Broadcasters ($22,000), and Walt Disney Co. ($18,500).

The individual donors from those companies include a flock of high-ranking executives from various News Corp/Fox subsidiaries, Viacom CEO Sumner Redstone, and Ted Turner from AOL Time Warner. Since 1995, employees from companies producing television, movies, music, and other media content have sent Hollings $287,534, making the entertainment industry his second most generous supporters. Those individual donations look like small potatoes, especially when you find out that they cover the past five to six years of campaign contributions.

It's illegal for corporations to spend money on federal elections, and individual donors aren't allowed to to contribute more than $1,000 to a candidate for federal office, or more than $20,000 per year to a political party. Not that this stops anyone from doing it, and doing it legally through something known as soft money.

Soft money has been around since 1978, when a Federal Election Commission made an administrative ruling that allowed money to be donated to political organizations for the purpose of building party structure. The activity and the money that fueled it was never intended to be used to influence the outcome of a federal election. The only problem is that the FEC has no power to investigate where soft money is applied once it enters the political machine.

And it is not, by any stretch of the imagination, hard to figure out what AOL Time Warner and Disney want when each donated over $1 million last year to the major American political parties. Nor does it take a cluster of Linux supercomputers to figure out that such money may eventually wind up being spent by the more connected members of that party - the chairman of the Senate Commerce Committee, for example.

Even with such staunch support from the nation's media giants, they're only number two on Hollings' list of top givers broken down by industry. The top spot goes to a combination of lawyers, law firms, and influential lobbyist groups. Individual supporters include legal eagles from Verner, Liipfert, Bernhard, McPherson, and Hand ($28,508) who represent virtually every major sports league and the Academy of Motion Picture Arts and Sciences; and Skadden, Arps, Slate, Meagher, and Flohm ($2,500), who currently have their hands full with representing Compaq's side of its $25 billion merger with Hewlett-Packard.

And then there's Tony Podesta's high-profile lobbying firm, which represents such friends of fair use as RIAA and the MPAA. Taking up the rear are individual donations from lawyers, many with experience in technology and intellectual property litigation. It's important to remember that the SSSCA is a draft of a bill that may or may not be introduced in both houses of Congress. Unfortunately, it's a draft that's just gained a sponsor in the House of Representatives. The good news from many watchdog groups is that the bill, in its current state, isn't expected to get past committee. The bad news is that some parts of it will likely survive or be resurrected in any number of other bills that could be introduced in the next Congressional session.

Now sure, I can understand that perhaps our Congressional leaders are little preoccupied, what with last week's events. And I don't mean to vulgarize or trivialize that tragedy, but it's times like these when our elected leaders should be under the most intense scrutiny. Unpleasant regulatory surprises have a way of sneaking in the back door when the voting public is otherwise engaged.

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