As Copyright Gets a Starring Role, We're Cast as the Villains

The entertainment industry has a problem: Not only are people sampling, sharing and swapping movies and music online, many don't even think they're stealing.

The industry has tried to stop this in the courts without much lasting success, and its limited, clumsy Internet ventures haven't drawn many customers either.

So the entertainment industry has turned to Congress for help. Last Thursday, Sen. Ernest F. Hollings (D-S.C.) introduced the "Consumer Broadband and Digital Television Promotion Act."

This bill would require things that can retrieve, copy or display copyrighted digital works -- a computer, MP3 jukebox, CD player, TV, cell phone, photo-editing program, operating system, seemingly anything with a chip or code in it -- to obey copy-protection rules encoded in these movies, music, pictures and books.

The technology behind this would be chosen either by representatives of manufacturers, copyright owners and consumers or, in case of an impasse, by the Federal Communications Commission.

But your fair-use rights -- your ability to back up a record or put together your own music collection -- would be at the sufferance of copyright owners alone. The only "fair use" spelled out in the bill is recording a TV program.

Making or selling new hardware or software that didn't support this copy-protection regime would be a federal crime, punishable by a fine of up to half a million dollars and as many as five years in jail -- for the first offense.

Those caught tampering with these copy-protection measures could also be fined and imprisoned.

Hollings's bill raises many questions. For instance, when did it become government's job to promote broadband and digital television in the first place? How will making TVs and computers less capable foster that goal? What's to stop the other 5.9 billion people on earth from making their own, non-copy-crippled hardware and software?

And just why do we need this technological totalitarianism in the first place?

It's not as though manufacturers won't help the entertainment industry.

Designers of computers and consumer electronics keep adding ever-more-Byzantine levels of protection in response to copyright owners' demands. They have developed locked digital connectors to enforce encoded copying rules, as well as video and audio cables that use encryption to prevent any diversion of a signal.

They are even working to embed allegedly invisible watermarks in television and film to close the "analog hole" of conventional video connectors (consumers prefer to describe this as a "feature").

But no matter what wrappers and locks are put on content, that which can be seen or heard can be copied. And once it's been sent up on the Internet in an unprotected format, it's never coming down.

In response, studios, record labels and others might have to change their business models -- as nearly every other industry has had to do in response to the Internet. (I realize this might cut back on stars' salaries; sacrifices must be made sometimes.)

Companies could also fight back by prosecuting the worst offenders. The laws governing this have been on the books for a long time. But instead we have the absurd logic of the Hollings bill. It says the only way to prevent people from using stolen content is to require all software and hardware to verify that nothing's been stolen.

In other words, you are presumed guilty until proven innocent.

Entertainment lobbyists say these copyright-sensitive products -- perhaps we could call them Hollingsware -- could give users the benefit of the doubt, allowing playback of material even if copy-protection watermarks, flags or stamps weren't present.

But we have no guarantee that Hollingsware would work any better than today's crotchety software and hardware. Will I have to call tech support to watch my brother's home movie because my computer thinks it's stolen property?

Hollings staffers say they want to protect consumers' "legitimate behavior." But the bill lets copyright owners define that term. History suggests they are not in a generous mood:

• Many electronic books published with Microsoft's software cannot be lent, resold or even printed.

• The ultra-high-fidelity Super Audio Compact Disc format cannot be played on a computer, let alone copied.

• The Pressplay online music service lets you listen to music you've downloaded only while your subscription is paid up. Let it expire, and your tunes do as well.

If you want to retain the freedom to use things that you own, you should reject this trend. What can you do?

First, don't buy products that take away your traditional rights. Don't buy copy-protected CDs. Don't buy a digital television or a personal video recorder unless its manufacturer promises to give your money back if Hollywood makes it obsolete.

Then pick up a pen and write to your representatives in Congress. Tell them that government-mandated copy protection is a nutty idea.

If Congress cares to protect citizens before corporations, it should first enact the "Consumer Technology Bill of Rights" outlined by DigitalConsumer.org, a new lobby formed to stop the Hollings bill. This codifies the common-sense flexibility we've come to expect from movies and music that we own.

The companies backing the Hollings bill need to realize the depth of the anger they have stirred up by assuming that all customers are thieves. Without these people's dollars, the entertainment industry is doomed.

Just ask Jack Valenti, president of the Motion Picture Association of America. "Without the consumer, we're dead," he said in a phone interview Wednesday. "We don't have a future."

If the copyright lobby continues this arrogant pursuit of security at all costs, Valenti and his ilk are going to find out how true that statement is.

Living with technology, or trying to? E-mail Rob Pegoraro at rob@twp.com.