I honestly can't decide if the "Anticounterfeiting Amendments of
2002" (S. 2395) bothers me or not. The bill prohibits trafficking in illicit authentication features (the House calls their similar bill, H.R. 5057, the
"Intellectual Property Protection Act of
2002"). Certainly this is no Peer to Peer Piracy Prevention Act (pdf), the kind of thing that has Dan Gillmor and a whole ton of other people all upset. This is merely a law that prohibits people from pretending something is authentic when it isn't.
Don't produce and distribute fake Microsoft holograms, either with or without
the softare CDs. But is that it?
Ever since I came across the revised law last week while poking around on Thomas, something has been bothering me about it. So I took a closer look. And I thought. I copied it to my desktop and opened it up occasionally. And then this morning
I decided to ask for help in thinking from the readers of LawMeme, because I
just couldn't put my finger on it. I needed (and, it turns out, still need) your
help. But I'm getting ahead of myself.
The legislation itself certainly appears to be more appeasement of the American movie and music
sectors, sponsored by Senator Joseph Biden, who has decided that copyright is
really good and must be preserved (see the intro the legislation for that
slant). After singing the praises of U.S. "copyright-based industries" the legislation prohibits trafficking in illicit
authentication features, amending 18 U.S.C. sec. 2318.
An authentication feature is any "hologram, watermark, certification, symbol, code, image, sequence of numbers or letters, or other feature that either individually or in combination with another feature is used by the respective copyright owner to verify that a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, or documentation or packaging is not counterfeit or otherwise infringing of any copyright."
An illicit authentication feature (the kinds of things prohibited by the Act), are those that are 1) genuine in origin, but altered without the copyright owner's permission to induce people to accept reproductions or distributions that violate the rights of the copyright holder; 2) genuine, but
have been or are intended for distribution without the authorization of the copyright holder and not in connection with the a lawfully made copy; or, 3)
"appear[] to be genuine, but [are] not."
As with other bills lately, enforcement provisions include allowing the industry to take action itself, including seeking damages, and criminal penalties. So what? So you cannot make a "Microsoft"
hologram or label and attach it to an illegal CD copy of the Windows XP operating system. No big surprise there, is there?
As
I was sitting this morning and drafting this post, I was pleased to find that Declan
McCullagh was on to the story. His article
on CNet News takes it straight on, quoting DC Lawyer Stewart Baker and Wayne
State Professor Jessica Litman, among others (go to Declan's article for links
to the people he quotes). The commentators raise a couple of troubling
prospects, but I'm disappointed to say I don't think they've found the problem.
Stewart posits that, under the law, "using a black magic marker to disable copy protection features built into some recent music
CDs," would violate the law. Litman worries: "Say I've got an MP3
collection and I buy a new nifty player from Microsoft that only plays
watermarked content, and I forge the watermark to allow my legal MP3 collection
to play . . . It is certainly the case that if I pass that around, I could be
trafficking (in violation of the law)."
In both cases, I don't think so,
and here's why: The definition of "authentication feature" was amended
as the bill was reported out of committee. It no longer requires a
"physical feature" but only a "feature." Pretty broad
language. But more limiting is the definition of an "illicit authentication
feature"--the thing actually prohibited by the law. That requires a few
things, no matter which of the three options you operate under. The first
definition requires that it be altered without the copyright holder's permission
to induce a third-party to reproduce or accept distribution.
Altering
your own MP3 collection to get it to play on Microsoft's rights-controlling
system would not be inducing anyone to reproduce or accept it. The same
holds true for the black marker trick; if your copy is legitimate, and you want
to play it on a system that would not allow it to be played without the marker,
I don't see the inducement there (unless inducing a computer system is
considered inducing a third-party, a point to which I think we've not yet
progressed). The inducement language was also added in the amendment on July 18,
and seems to run counter to the idea that the bill reaches everything people are
complaining about. If the original language (which had prohibited illicit
authentication features that facilitated reproduction or distribution in
violation of the copyright holder's rights) had been retained in that section,
the argument might ring truer.
A second definition of illicit authentication
feature defines it as a genuine one, but one that has been distributed without
authorization of the copyright owner and not in connection with a valid copy.
Again, this seems particularly inapplicable to the digital rights management
technology situations that have been set out. The final definition is simply of
a authentication feature that appears to be genuine, but is not. Again, I don't
see how it applies in the digital rights management setting.
If the changes in
the proposed law when it was reported were limited to removing the
"physical" requirement from what was considered an authentication
feature, I would share the concerns of the experts who have expressed them so
far. Given that the proposed law forbids only illicit authentication devices,
and defines that term more narrowly than it has defined "authentication
feature," I'm afraid I don't see problems others have seen.
That still
leaves me with my original nagging that something is going on in this
legislation that I'm missing. I guess I need some additional help to see what it
might be.
Any ideas?