1. General
   1. Are you opposed to copyright protection for digital works?
   2. Do you support illegal copying?
   3. So what's the problem?
   4. Isn't the whole point of copyright to protect the rights of authors?
   5. What are some examples of the balance that used to exist?
   6. What are some examples of this shift in the balance of copyright?
2. Copy Protection
   1. You're joking, right? Of course I can make a copy of a CD or record a TV show!
   2. But how can they stop me from copying a CD?
   3. Can't I always make analog recordings?
   4. Don't we need these "anti-circumvention" laws to protect creative works?
   5. But how do you prevent illegal copying if you allow circumvention technologies?
   6. I don't see what legitimate uses circumvention technology could have. Isn't it just a tool for hackers who want to steal content?
   7. So what can we do about this problem?
3. The DMCA, SSSCA, and CBDTPA
   1. What is the DMCA?
   2. What's wrong with the DMCA?
   3. What is the CBDTPA (formerly known as the SSSCA)?
   4. What's wrong with the CBDTPA?
   5. Don't these new laws already provide exemptions for fair use?
   6. Couldn't we fix things by adding better exemptions to existing laws?
4. The BPDG
   1. What is the BPDG?
   2. How would the BPDG's rules work?
   3. What's wrong with the BPDG?
   4. But doesn't the BPDG represent a consensus?
5. Miscellaneous
   1. Do fair use rights for consumers harm the content industry?
   2. Do fair use rights for consumers harm artists and creators?
   3. Do anti-circumvention copyright laws harm innovation?
   4. But I thought the DMCA had a special exemption for reverse engineering?
   5. Do copyright laws affect libraries?
6. Alliance For Digital Progress
   1. What is the Alliance for Digital Progress?
   2. Why did DigitalConsumer join ADP?
   3. Some members of ADP support copy-protection technology. Has DigitalConsumer sold out?
   4. How will this impact DigitalConsumer's position on fair use?

3. The DMCA, SSSCA, and CBDTPA

3.1 What is the DMCA?

DMCA stands for "Digital Millennium Copyright Act". The DMCA was passed in 1998. Passage of the DMCA was motivated in part by a perceived need to implement guidelines set by the World Intellectual Property Organization.

http:/­/­www.gseis.ucla.edu/­iclp/­dmca1.htm
"The Act is designed to implement the treaties signed in December 1996 at the World Intellectual Property Organization (WIPO) Geneva conference, but also contains additional provisions addressing related matters."

http:/­/­www.loc.gov/­copyright/­legislation/­dmca.pdf
The US Copyright Office's summary of the DMCA.

3.2 What's wrong with the DMCA?

The DMCA makes it a crime to circumvent copy protection, even if your purpose in circumvention is to exercise your legal rights. This means that those rights are effectively non-existent under the DMCA. See above for more detail: 2.1.

3.3 What is the CBDTPA (formerly known as the SSSCA)?

The "Security Systems Standards and Certification Act" (SSSCA) was a draft bill whose stated goal was "to provide for private sector development of workable security system standards and a certification protocol that could be implemented and enforced by Federal regulations." However, the scope of the SSSCA was far greater than a simple standardization effort.

On March 21, a new version of the SSSCA was formally introduced to the Senate as the "Consumer Broadband and Digital Television Promotion Act" (CBDTPA).

http:/­/­cryptome.org/­sssca.htm
Text of the SSSCA.

3.4 What's wrong with the CBDTPA?

The CBDTPA (formerly known as the SSSCA) attempts to provide even more power to content providers. Many view the CBDTPA as "DMCA 2.0". Like the DMCA, the CBDTPA makes it a crime to remove any security technology, even when you are removing the security technology to exercise legal rights. Furthermore, the CBDTPA mandates that all digital devices conform to the federally mandated security standards (including cell phones, digital cameras, and even watches).

If approved by Congress, the CBDTPA will have a number of negative consequences. First, it will further erode fair use rights by placing even more power in the hands of content companies. Second, it will prevent electronics companies from building innovative new products. Third, as a government-mandated standard, it will be unable to keep up with the rapid pace of technology in the private sector. Fourth, it is likely to have all of these negative impacts without solving the real problem of organized piracy.

http:/­/­www.msnbc.com/­news/­718454.asp
"As with a certain Houston energy company’s dealings with friendly government officials, one couldn’t help but wonder where the little people stood in all of this. The answer came from Sen. Fritz Hollings, clearly a friend of content holders. 'When Congress sits idly by in the face of these [file-sharing] activities, we essentially sanction the Internet as a haven for thievery,' said the committee chairman, charging 'over 10 million people' with stealing. That’s where citizens stand -- not as potential consumers, but as candidates for prison denim."

http:/­/­www.nytimes.com/­2002/­03/­14/­technology/­14PROT.html
Steve Jobs says that "Unfortunately in many cases, fear is paralyzing Hollywood's ability to seize what I believe is an incredible opportunity. [...] We at Apple believe most people want to be honest, and if offered reasonable choices, most people will choose to buy their content."

http:/­/­www.bayarea.com/­mld/­bayarea/­business/­2764054.htm
Intel's executive vice president states that the CBDTPA "will substantially retard innovation, investment in new technologies, and will reduce the usefulness of our products to consumers."

http:/­/­www.acm.org/­usacm/­SSSCA-letter.html
"Enacting additional copyright-protections beyond those already provided by the Digital Millennium Copyright Act (DMCA) is unwarranted. Already, we have seen an unintended chilling effect on computer security research by the DMCA. Any law along the lines of the SSSCA might well have more far-reaching and damaging effects."

http:/­/­www.wired.com/­news/­politics/­0,1283,46655,00.html
"Music and record industry lobbyists are quietly readying an all-out assault on Congress this fall in hopes of dramatically rewriting copyright laws. With the help of Fritz Hollings (D-S.C.), the powerful chairman of the Senate Commerce committee, they hope to embed copy-protection controls in nearly all consumer electronic devices and PCs. All types of digital content, including music, video and e-books, are covered."

3.5 Don't these new laws already provide exemptions for fair use?

Yes, but only in very specific and limited cases. For example, the CBDTPA provides just one exemption: for recording a TV show.

The DMCA provides similar limited exemptions. Libraries may circumvent copy protection -- but only for the purpose of determining whether or not to acquire the work. They cannot circumvent for the purpose of archiving the content, lending it to patrons, etc. Paradoxically, the DMCA outlaws devices that could be used for circumvention, so it is unclear how libraries would ever obtain the technology that would allow them to exercise their exemption.

Scientists are supposedly able to circumvent copy protection for the purpose of encryption research. But a Princeton cryptography professor was recently prevented from publishing his research because of threatening actions by the RIAA.

So while the new copyright laws do provide certain exemptions, in practice the exemptions are so narrow as to be useless for most citizens.

http:/­/­www.arl.org/­info/­frn/­copy/­primer.html
"Most likely, the DMCA will ensure that more works come with licenses and with an obligation to pay for each use or access. This change could hit libraries particularly hard, because it will challenge the way in which libraries function as the archive of our published history."

http:/­/­salon.com/­tech/­log/­2001/­04/­26/­felten/­index.html
"In a move that shows just how wary of free speech the recording industry has become, a Princeton computer science professor announced Thursday that he would not be presenting a paper that revealed how he and his colleagues cracked SDMI -- the recording industry's chosen method of cryptographically protecting digital music. Edward Felten, who was scheduled to present his findings before the Fourth International Information Hiding Workshop in Pennsylvania, explained that threats of legal action by the Recording Industry Association of America had persuaded him to stay silent."

3.6 Couldn't we fix things by adding better exemptions to existing laws?

There are two reasons why simply adding more exemptions won't work.

First, an exemption-based approach leaves no room for innovation. It expects the government to figure out the entire set of possible fair uses of technology; all others are forever illegal unless authorized by the content industry. Many products that are legal today would never have existed. See 5.3 for more details.

Second, it would be almost impossible to enumerate every reasonable and fair use of all the different kinds of digital media out there today (not to mention new kinds that haven't been invented yet). We tried that approach with the DMCA and left out a number of important uses -- for example, the DMCA has no exemption that would allow blind people to extract text from an electronic book. Congress itself affirmed that it is impossible to formulate exact rules for fair use in the House Report on the Betamax case.

Instead of making specific exemptions that fall far short of the rights we had before the DMCA, we need a positive assertion of a set of general, reasonable principles. That's the goal of our Consumer Technology Bill of Rights. It defines broad categories of rights within the domain of personal non-commercial use, and it decriminalizes the technology that can be used to exercise those rights.

http:/­/­caselaw.lp.findlaw.com/­scripts/­getcase.pl?court=US&vol=464&invol=417#f31
House of Representatives Report No. 94-1476 as quoted by the Supreme Court. "The statement of the fair use doctrine in section 107 offers some guidance to users in determining when the principles of the doctrine apply. However, the endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis."