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Surefire Way To Stifle Innovation 350

Posted by Zonk
from the two-sides-of-a-warped-coin dept.
denissmith writes "C|NET has a very funny piece by Patrick Ross, where he pooh-pooh's Congressman Rick Boucher's (D-VA) efforts to protect Fair Use by claiming that it will stifle innovation." From the article: "If HR-1201 becomes law, every consumer could legally hack any TPM by claiming fair use, and as fair use isn't codified, there would be as many definitions of it as there are consumers. Consumers would be legally sanctioned to break their contracts with the content provider. No sane business operator enters a contract in which one party has the right to disregard its terms at will, but that's what HR-1201 permits. That hated TPM would disappear from the market, as there's no reason to employ a lock if everyone has a legal right to the key. But as TPM leaves, so do the digital offerings that come with it."
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Surefire Way To Stifle Innovation

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  • by Anonymous Coward on Friday October 07, 2005 @10:46AM (#13740015)
    Use acronyms nobody knows.
  • by Powercntrl (458442) on Friday October 07, 2005 @10:46AM (#13740017)
    Biography
    Patrick Ross works for The Progress & Freedom Foundation, a think tank based in Washington, D.C., and its Center for the Study of Digital Property. Earlier this week, the Progress & Freedom Foundation filed a brief with the Supreme Court supporting the RIAA and MPAA in their legal fight against file-swapping software companies Grokster and StreamCast Networks.


    'nuff said.
    • We're all biased.

      I'm a professional software guy and I bet you are too.

      Slashdot itself has a groupthink just like any other community. Amish folk dislike electricity. Daily Kos dislikes Republicans. And we the Slashdotters generally dislike Microsoft and the RIAA.

      So yeah, you're right to an extent, but Patrick Ross has the right to give his RIAA-biased opinions just as much as you have the right to give your software/Linux/techie-biased opinion.
      • Patrick Ross has the right to give his RIAA-biased opinions just as much as you have the right to give your software/Linux/techie-biased opinion

        Uh, in case you hadn't noticed, Mr. Ross is presenting "his" opinions as the representative of what, at first glance, might appear to be a consumer rights group, and is using a (fairly) respectable on-line publication to do it.

        Whereas we're commenting on a /. story.

        It doesn't take much to figure out that this guy's so-called opinions are nothing more than a PR team'
        • by Chosen Reject (842143) on Friday October 07, 2005 @12:18PM (#13740835)
          I hope that we never have unbiased news. The reason is partly because that is impossible. And since it's impossible to have completely unbiased news, all I ask is that people tell me what their bias is. Then I know how much to trust it and how much salt I need for any given piece of information. I can listen to someone and know what direction they are coming from. Unbiasedness should not be the goal for a news agency. Correct information should, and part of that correct information is the bias of said agency. I want to know if the information I'm getting is from a group that supports x, or is it from a group that doesn't support x. Then I want two different sources.

          Why is it impossible to be unbiased? Because we all have opinions. Even down to the events that an article chooses to relate, to the emphasis given can show our bias. Even if that bias is unintentional. A fly on the wall only sees certain things from a certain view. Give me two flys, on opposite walls, and I will have all the much more information to base a decision on. Three flys on differing walls is even more info.

          So why do you ask for unbiasedness? Why not take what he has to say, then read the EFF website and see what they have to say, and base your decision on the arguments given. Listening to only one source, no matter how unbiased you think that source is, is a very shallow way of learning, and you are simply asking them to give you an opinion. That's not to say you will always walk away with their opinion, you may hate them so much that whatever they say you'll disagree with simply to spite them. Either way though, they are giving you your opinion.

          An excellent example of this is right here. You'll have the RIAA haters shouting loudly that the RIAA sucks, then you'll have the RIAA saying loudly that you suck. No one is listening to the other and trying to find a middle ground that is right. (Note I am not saying that the exact middle is the right way. But typically there is some give and take, where both sides have a point).

          I'm reminded of the old saying, "If I wanted your opinion, I'd tell it to you."

          • Part of the problem with trying to present "unbiased news" is that it usually done as "presenting both sides". It sounds great; yet, both sides are presented as if they had equal merit or have equally good spokespeople.

            "98% of scientists say that evolution occurred, but did it? Up next, we'll have the arguments of almost the whole scientific community, versus a small group of people with degrees from degree mills, on the subject of what should be taught in the science classroom."

            "Up next: A group of swift
      • The Amish (Score:4, Informative)

        by Rei (128717) on Friday October 07, 2005 @01:29PM (#13741422) Homepage
        Amish folks dislike electricity

        That's not really true. In fact, visit any amish community today, and you shouldn't be too surprised if you see an old woman on a handmade rocking chair talking on a cell phone, for example. Amish use electric lights, and even computers at times.

        The Amish don't outright reject electricty, and they don't outright reject technology. Unlike us ("the English", to them), however, they don't automatically accept any new technology, either. The more liberal members of the amish community start using new technologies when they come out. The effects of the technology are looked at - if the people who use the technology start spending less time bonding with their families and communities, or other "social ills" start to come of the technology, then Amish leaders reject the technology, and those who use it are discouraged from doing so. This is why home telephones are not allowed (people chat on the phone instead of with their families and neighbors), but the most modern gas grills are allowed (cookouts bring communities together). The amish also like to be more technologically independent (for example, they prefer heat-powered devices over electric powered, even if it's propane heat, and manually haul the propane; they could always switch to other heat sources), but technological independence isn't the prime driving factor.

        Often, compromises (for example, allowed at work, not allowed at home) are made. Work generally tends to be higher tech, as they need to remain competitive with "the English". Cell phones seem to be moving in that direction. Unlike regular phones, however, cell phones may prove more problematic for the amish - while the whole community could see phone lines heading to the house of a family that used a regular phone, cell phones are "hidden", and thus they don't have as much social pressure on home cell phone users.
        • by arose (644256)
          The effects of the technology are looked at - if the people who use the technology start spending less time bonding with their families and communities, or other "social ills" start to come of the technology, then Amish leaders reject the technology, and those who use it are discouraged from doing so.
          Amish introverts have my full sympathy.
    • by Anonymous Coward
      I find it interesting that pretty much any time a lobby group has the words "freedom" or "innovation" in their names they are simply paid hacks for corporate interests looking to take rights away from consumers.
    • by BJH (11355) on Friday October 07, 2005 @11:05AM (#13740198)
      Indeed. Their site is here [pff.org]; let's have a quick look at how they describe themselves, shall we? Translation in italics.

      "The Progress & Freedom Foundation is a market-oriented [corporate-centric] think tank that studies the digital revolution and its implications for public policy. Its mission is to educate [lobby] policymakers, opinion leaders and the public about issues associated with technological change, based on a philosophy of limited government [Don't legislate against us, only for us], free markets [Ditto] and individual sovereignty [Don't let consumer rights groups interfere with us making money].

      PFF's research combines academic analysis [paid-for studies] with a practical understanding of how public policy is actually made [yet more lobbying]. Its senior fellows and other scholars are leading experts in their fields, with distinguished careers in government [ex-government officials turned lobbyists], business [corporate mouthpieces], academia [assistant lecturers desparate for grant money] and public policy [our pet politicians]. Its research is substantive, scholarly and unbiased [Liar! Liar! Pants on fire!]. At the same time [yes, we really were lying in the previous sentence], PFF is focused on having an impact on public policy.

      PFF's underlying philosophy combines an appreciation for the positive impacts of technology with a classically conservative view of the proper role of government [See previous comment about not interfering with us making money]. We believe that the technological change embodied in the digital revolution has created tremendous opportunities for enhanced individual liberty [See previous comment about those goddamn consumer rights groups], as well as wealth creation [for us] and higher living standards [for us]. Those opportunities can only be realized if governments resist the temptation to regulate [DMCA? What's that? Extension of copyright? Never heard of it] , tax [us] and control [us]. Government has important roles to play in society [like helping us], including protecting [our] property rights and individual liberties [hahahaha], but its tendency is to reach beyond its legitimate functions in ways that harm [help] consumers, burden citizens [with all this messy legal stuff they really don't need to know about, right? By the way, Mr. Senator, how many callgirls will you be needing tonight?] and slow progress [of the growth of our bank balances]."
      • by mkoenecke (249261) on Friday October 07, 2005 @11:15AM (#13740286) Homepage
        Drat. Used up my mod points yesterday. Yes, this fellow has the same right to be heard as everyone else, but it is highly relevant to point out that he is not speaking from principle but making an argument on behalf of commercial interests. To me, and to most people I think, that reduces his credibility by several orders of magnitude.
      • I had never really thought about it before, but the idea of a think tank being paid by a company or industry wishing to know or explore something seems a bit flawed. In order to stay in business this think tank isn't going to say their client is wrong in their thinking. If this group told the RIAA "Your method of expanding your business is ass-backwards. Here is a better way." they would never find work again. Can you really trust the "impartial" finding of a think tank?

        In that light, it doesn't surpris

        • I had never really thought about it before, but the idea of a think tank being paid by a company or industry wishing to know or explore something seems a bit flawed. In order to stay in business this think tank isn't going to say their client is wrong in their thinking. If this group told the RIAA "Your method of expanding your business is ass-backwards. Here is a better way." they would never find work again. Can you really trust the "impartial" finding of a think tank?

          The thing about "think tanks" is th

    • by hotspotbloc (767418) on Friday October 07, 2005 @11:19AM (#13740320) Homepage Journal
      Some from http://www.pff.org/about/supporters.html [pff.org] :

      - Clear Channel

      - MGM

      - Sony Music Entertainment

      - Time Warner

      - VIACOM

      - Vivendi

      Patrick Ross is nothing but a whore turning tricks for his pimps.

    • So are you going to actually refute his argument, or just smear the presenter?

      The guy may be an industry shill, but that doesn't prove his argument wrong or yours right.
  • Confused (Score:5, Insightful)

    by AKAImBatman (238306) * <akaimbatman@gmai ... m minus language> on Friday October 07, 2005 @10:47AM (#13740020) Homepage Journal
    Wait. Based on the summary, I don't understand which way the GroupThink(TM) is supposed to go here. Is it good? Is it bad? Help me! I'm so confused!

    Honestly, I think this is the first time I've seen a summary that doesn't try to put a spin on the article one way or another. (Not that such things are always the fault of the posters. So called "objective journalists" are just as bad, if not worse.) The summary, and the article, come across clearly that this is a double-edged sword. By taking the opposite extreme in an attempt to balance out the DMCA, this bill may cause extrodinary harm to the businesses who produce the content that consumers want to have fair use rights over. Causing harm to them would cause a reduction in quality and quantity of content production, just as the DMCA has caused a change in consumer purchasing habits.

    The golden middle is to not muck with laws that work in the first place. Sadly, we're far beyond that. None the less, the DMCA has not had as chilling of an effect as was once expected. As the Lexmark vs. SCC case has shown, courts are beginning to find in favor of fair use, slowly erroding the power of the DMCA by way of precident.

    Will this new bill help or hurt? I think that remains to be seen.

    As an aside, I have to say that I'm getting pretty tired of the "defend the innovation!" cry. Microsoft used the same line of B.S. in their court cases, and it didn't sway public opinion then any more than shouting it from the rooftops will sway public opinion now. Let's see these companies who are using this line actually do something innovative for a change, then we'll think about accepting it. In the meantime, it's a tainted as the buzzword "Synergy".
    • Wait. Based on the summary, I don't understand which way the GroupThink(TM) is supposed to go here. Is it good? Is it bad? Help me! I'm so confused!

      Honestly, I think this is the first time I've seen a summary that doesn't try to put a spin on the article one way or another.


      He was very serious, but the submitter said the article is funny. That's belittling [reference.com], and means that he's a funny little man and if you agree, you're funny too. ;-)
    • by Anonymous Coward
      None the less, the DMCA has not had as chilling of an effect as was once expected. As the Lexmark vs. SCC case has shown, courts are beginning to find in favor of fair use, slowly erroding the power of the DMCA by way of precident.

      No chilling effects? How much money did that Lexmark case cost Static Control? Could you personally afford to fight Lexmark in court? No, I didn't think so. So you think DMCA precedent was set in the Lexmark v. SCC case? Then why is SCC now suing ISV [rechargermag.com] for doing the exact sam

    • Re:Confused (Score:5, Insightful)

      by Chris Burke (6130) on Friday October 07, 2005 @11:58AM (#13740649) Homepage
      The summary, and the article, come across clearly that this is a double-edged sword. By taking the opposite extreme in an attempt to balance out the DMCA, this bill may cause extrodinary harm to the businesses who produce the content that consumers want to have fair use rights over.

      It comes across clearly that the author thinks it is a double-edged sword, but it isn't clear that it is.

      His claim is that consumers could legally hack any DRM scheme by claiming fair use, which "isn't codified". That's wrong. There may not be a clear line in some cases, but it is absolutely codified and has a lot of case history involved, and the kind of copying the businesses we're talking about are worried about does clearly fall in the not-fair-use side. So he's also wroing in that a person could not legally claim fair use and hack the DRM for any reason they want.

      His argument boils down to: Consumers "purchas[ing] exactly the amount of use they need" from big content industry is "innovation", big content won't distribute content without DRM, and allowing citizens to exercise fair use rights without being sued for breaking DRM in doing so is the same as not having DRM at all.

      Like you, I don't think we can really say what the result will be without at least reading the law, and then seeing how it is played out in reality. But based this article's take on what the bill does, this article's take on the result is utter crap.

      None the less, the DMCA has not had as chilling of an effect as was once expected.

      I know! People were predicting that someone could be arrested merely for discussing a security flaw, resulting in security researchers being afraid to visit the U.S., and what a load of hogwash that turned out to be.

      But in all seriousness, I think the extent to which the DMCA has failed to have a "chilling effect" is the extent to which people have either ignored it or not been under the jurisdiction of the government that created it. Mostly the latter. Where did DeCSS come from again? And why isn't it in my us.debian.org apt repository, or any other U.S. distro?

      As the Lexmark vs. SCC case has shown, courts are beginning to find in favor of fair use, slowly erroding the power of the DMCA by way of precident.

      All the Lexmark case showed was that a company can't use the DMCA for whatever the fuck it wants whenever it wants. Lexmark was essentially claiming that the chip on their cartridges was an access control mechanism to protect the copyrighted code on the chip on their cartridges, so making a compatible interface was a DMCA violation. If the courts had bought this, it would have been an expansion of the power of the DMCA. Not expanding isn't the same as eroding at all.

  • "there would be as many definitions of it as there are consumers"

    And how many customers would actually have the desire to hack theirs? It took me 3 hours to teach my dad to use a DVR. For some reason I don't see him or the majority of people out there taking advantage of this.

  • The guy seems dead serious. Maybe you find it funny, but it appears he is indeed supporting TPM and declaring that Fair Use is bad.

    Daniel
    • Read the author's bio, it looks like he is being paid to be dead serious on this matter. And yes, he is supporting what he calls "TPM", just like his appearant employers want him to.
    • Maybe he means "what's that smell?" funny, not "haha" funny.

      =Smidge=
  • by dada21 (163177) * <adam.dada@gmail.com> on Friday October 07, 2005 @10:50AM (#13740051) Homepage Journal
    And surely bills from either side encompass strictly a single regulation and would never be used for pork.

    It really peeves me when we add laws on top of laws rather than repealing bad ones and drafting new ones to cover changes. Innovation has occurred for thousands of years without copyright or patent protection. Free use wasn't even a phrase until we started to see tyrannical laws that abuse basic rights, inherent to all humans regardless of what their governments say or do.

    Whatever movement is made in the law books, nothing will matter. The Internet combines the wishes of billions, disregarding every law. Funny thing is, the Internet really lets the free market shine without trampling on the basic human rights.

    The Net won't murder, won't rape, won't rob from your home or incur taxes you don't want to pay. It won't restrict your right to speak freely, it won't take your guns away, it won't harbor troops in your home.

    As more people embrace the Net, more will use the rights they were born with. More will commit legal crimes that are morally acceptable.

    In the long run, maybe we'll see laws that protect life, liberal and property rights rather than laws controlling thought or non-violent actions.

    Do bloggers worry about copyright? Do musicians on purevolume worry? Do researchers posting their theses care?

    Everything I dream of in my free market world is coming true online, and no law is stopping it. Boucher's bill won't do jack. Repeal copyright and you'll see more innovation than ever.

    Why release good music freely? Fans may pay you for more, or a production company might hire you to write something for them, or you might gain customers for your live shows, or you might get people to your site to gain AdSense revenue. Copyright won't protect your income-via-monopoly much longer.
  • this Rick Boucher guys is ok!
    • He is! I had a two week running email conversation with him re: the DMCA a couple of years back. He took the time to listen to me and respond personally (not through a staffer) even though he is not the represenative for my district, or even in my state. He knows that unlimited copyright and DRM is a BAD THING(tm) for consumers and dosen't care if those consumers are in his district of Virginia or not.

      To bad most of Congress just drinks the cool-aid (read - corporate $$$) and shutts up until the next electi
    • This isn't the first time someone has said that on Slashdot. Rep Boucher is one of the few guys in Congress who really gets technology. He's a real class act.
  • Rebuttal (Score:5, Informative)

    by geekoid (135745) <dadinportland AT yahoo DOT com> on Friday October 07, 2005 @10:52AM (#13740074) Homepage Journal
    the following is a post I got from 'talk back' comments.
    I am notnthis person, and as far as I know, the original poster owns all copyright. I claim nothing. It is a good rebuttal.

    Who let this hack post on CNet?
    Posted by: Billy Herman
    Posted on: October 6, 2005, 8:33 AM PDT
    Story: Here's a surefire way to stifle innovation

    While the PFF is generally an awful source for awful, pro-
    industry rhetoric, this article slips to a new low.

    First and foremost, Ross simply doesn't understand the legal
    issues that are at stake. "Fair use isn't codified?" Try 17 USC 107.
    It may not be cut-and-dried, but it's in the book.

    Second, all of his rhetoric that TPMs are being developed in a
    way that will stop harming consumers doesn't answer Boucher's
    deeper issues with fair use. Even if we enter TPM utopia, where I
    can buy locked-down media in my choice of TPM-laden format,
    I'm still denied important rights of free speech. It's still illegal for
    me to hack a DVD in order to make a 15 second clip of it for a
    media criticism documentary. As a Ph.D. candidate in
    communication, I can assure you that this is stifling innovative
    forms of doing media studies, and that's just my corner of the
    very large TPM-handicapped world.

    Third, HR 1201 would neither uniquely lead to nor permit wide
    scale, wholesale infringement. The last section insists that fair
    use would stand as a defense to the section and that the Sony
    standard, "substantial noninfringing uses," should guide which
    tools can be marketed. This means it's still illegal for me to hack
    rented DVDs to create my own library, to distribute software
    serial numbers online, or to sell "black box" devices that are
    designed primarily to help me commit infringements.
    Additionally, Ross provides no response to the obvious fact that
    all of these things are already happening despite the DMCA;
    clearly, the law under the status quo isn't slowing down the
    willful infringers.

    What does the bill permit? The same things we were allowed to
    do in the analog era: home recording of music for personal use
    (e.g., mix CDs), fair use quotations of encrypted media, and
    reverse engineering out of mere curiosity (subject to EULA).

    As a fourth bit of shoddy quasi-journalism, Ross is totally
    unresponsive to concerns about fair labeling. In ANARCHIST IN
    THE LIBRARY, Siva V tells a terrifying story about a customer who
    unknowingly bought a TPM-laden CD. When he found out it
    wouldn't play on his home player, he wrote the record company.
    Not only did they not fix his problem, they wrote a letter
    assuring him that they were hell bent on releasing all CDs in
    protected formats and that there's nothing he can do about it.
    Does this sound like a fair business practice? HR 1201 requires
    full disclosure of TPM restrictions so that customers can make
    informed choices.

    Fifth, Ross confidently cites the Register of Copyrights, Marybeth
    Peters, in her conclusion that there's generally no problem here.
    Ross commits a radical misquotation. Peters insists that the
    statute is riddled with problems that handicap her ability to
    preserve fair use through the exemption proceedings. She
    explicitly states that important uses such as library archiving are
    left out in the cold. She expresses deep reservations about the
    statute's inability to effect the intended dichotomy between
    access-controlling and use-controlling TPMs The former is
    intended to make sure that people pay for their stuff, and it is
    illegal to hack them. The latter is an inconvenience to the paying
    customer, but users may hack them without breaking the law.
    Unfortunately, a lot of TPMs control access but function
    primarily as use controls; the DVD encryption scheme (CSS) is
    the paradigm example, but there are many. In the final rulings,
    Peters expressed her inability to solve this "dual-purpose"
    problem. On these and other issues, Peters explicitly encourages
  • I wish we could return to an era of personal responsibility.
  • by nonmaskable (452595) on Friday October 07, 2005 @10:54AM (#13740089)
    Why isn't CNET disclosing that this was a paid opinion piece funded by (among others):

    Business Software Alliance
    Disney
    MGM
    Microsoft
    NBC Universal
    Sony Music Entertainment Inc.
    Time Warner
    Vivendi
  • Huh? (Score:5, Funny)

    by Taevin (850923) * on Friday October 07, 2005 @10:54AM (#13740090)
    This guy is for "Progress and Freedom"? From the article:
    But when the content is delivered purely as digital bits, there is no limit to the range of TPM that can be applied. Content producers can also quickly change their options to meet market demand. What is a publisher to do when it finds out that it can't get students to buy e-textbooks when they expire after a mere four months? By changing one line of code, those four months can be expanded to a full year.
    Wow! You mean if customers finally start complaining that their collective anus is bleeding, producers might let consumers hold on to their property for a little while longer?

    I guess I just don't see how limiting people's rights to their purchased property is progress and it's certainly not freedom.
    • Wow! You mean if customers finally start complaining that their collective anus is bleeding,

      Thanks man, its not like I was eating my lunch or anything..
  • I read TFA and felt like the androids in the episode of Star Trek where Kirk makes them all shut down by feeding them illogical statements. Is this guy a really lousy humorist or a serious loony?
  • so if we take away their protection, then the content operators will just quietly shut down and lay themselves off? Without this wonderous protection, they'll simply decide it's not worthwhile?
    I'd no idea it was this serious, I'm also trying to work out how these operators managed to get themselves into the position they're currently in. Surely it can't have been supplying unprotected feeds to people willing to pay for them? (because this simply doesn't work seemingly).
    • then the content operators will just quietly shut down and lay themselves off? Without this wonderous protection, they'll simply decide it's not worthwhile?

      The movie production industry has already given up. [theonion.com]

  • by jmorris42 (1458) * <jmorris.beau@org> on Friday October 07, 2005 @10:59AM (#13740127)
    > That hated TPM would disappear from the market, as there's no reason to employ a lock if everyone has
    > a legal right to the key. But as TPM leaves, so do the digital offerings that come with it.

    We always hear this crap, that all these just over the horizon but so wonderous digital offerings will go away. But they are all as bad or worse as Divx (the Circuit City crap that was rejected by 'Consumers', not the popular codec) so good riddance. I really don't see how my life will be worse if these wonders never come and can all too quickly see how they will be worse with everything DRMed. So if DRM that actually works is the price for Hi-Def or online content I am more than content to keep buying CDs and DVDs.
    • Media won't go away, but some of the big companies that shovel it towards us right now might. Whether the new market realities bankrupt them, or if they just decide to take their ball and go home, those companies completely functioning within the traditional ways of media distribution won't be around forever. I can believe that.

      What I can't believe, however, is that no one will come in to fill the void. It'll be a different kind of person/company/artist/whatever, but someone will show up. There will still b
  • Kind of funny. (Score:4, Insightful)

    by LWATCDR (28044) on Friday October 07, 2005 @10:59AM (#13740133) Homepage Journal
    Since it allow any consumer to "hack" DRM...
    So what this means it that it would be legal to say watch an DVD on my linux box but it would still be illegal for me to rip it and publish it using p2p.
    So I could rip my CDs and put them on my MP3 player but it would be illegal for me to P2P them.

    So any protection will have to stand on it's own and breaking it is perfectly legal.
    Hey works for me.

  • Great legislation! (Score:5, Informative)

    by sweetnjguy29 (880256) on Friday October 07, 2005 @11:00AM (#13740137) Journal
    This is a great piece of legislation. It provides the consumer with a warning that the CD is copy-protected and it fixes the current catch-22 dilemma in current law by allowing the fair-use copying of copyprotected music for non-infriging purposes without violating the DCMA. Too bad this will never become law...I guess I am too cynical:

    H. R. 1201
    To amend the Federal Trade Commission Act to provide that the advertising or sale of a mislabeled copy-protected music disc is an unfair method of competition and an unfair and deceptive act or practice, and for other purposes.

    IN THE HOUSE OF REPRESENTATIVES

    March 9, 2005
    Mr. BOUCHER (for himself, Mr. DOOLITTLE, and Mr. BARTON of Texas) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

    A BILL
    To amend the Federal Trade Commission Act to provide that the advertising or sale of a mislabeled copy-protected music disc is an unfair method of competition and an unfair and deceptive act or practice, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

    SECTION 1. SHORT TITLE.

    This Act may be cited as the `Digital Media Consumers' Rights Act of 2005'.

    SEC. 2. FINDINGS.

    Congress finds the following:

    (1) The limited introduction into commerce of `copy-protected compact discs' has caused consumer confusion and placed increased, unwarranted burdens on retailers, consumer electronics manufacturers, and personal computer manufacturers responding to consumer complaints, conditions which will worsen as larger numbers of such discs are introduced into commerce.

    (2) Recording companies introducing new forms of copy protection should have the freedom to innovate, but should also be responsible for providing adequate notice to consumers about restrictions on the playability and recordability of `copy-protected compact discs'.

    (3) The Federal Trade Commission should be empowered and directed to ensure the adequate labeling of prerecorded digital music disc products.

    SEC. 3. INADEQUATELY LABELED COPY-PROTECTED COMPACT DISCS.

    The Federal Trade Commission Act (15 U.S.C. 41 et seq.) is amended by inserting after section 24 the following new section:

    SEC. 24A. INADEQUATELY LABELED COPY-PROTECTED COMPACT DISCS.

    (a) Definitions- In this section:

    (1) The term `Commission' means the Federal Trade Commission.

    (2) The term `audio compact disc' means a substrate packaged as a commercial prerecorded audio product, containing a sound recording or recordings, that conforms to all specifications and requirements for Red Book Audio and bears a duly licensed and authorized `Compact disc Digital Audio' logo.

    (3) The term `prerecorded digital music disc product' means a commercial audio product comprised of a substrate in the form of a disc in which is recorded a sound recording or sound recordings generally in accordance with Red Book Audio specifications but that does not conform to all licensed requirements for Red Book Audio: Provided, That a substrate containing a prerecorded sound recording that conforms to the licensing requirements applicable to a DVD-Audio disc or a Super Audio Compact Disc is not a prerecorded digital music disc product.

    (4) The term `Red Book Audio' means audio data digitized at 44,100 samples per second (44.1 kHz) with a range of 65,536 possible values as defined in the `Compact Disc-Digital Audio System Description' (first published in 1980 by Philips N.V. and Sony Corporation, as updated from time to time).

    (b) Prohibited Acts-

    (1) The introduction into commerce, sale, offering for sale, or advertising for sale of a prerecorded digital music disc product which is mislabeled or falsely or d
  • What's happening? Uh... we have sort of a problem here. Yeah. You apparently didn't put one of the new cover sheets on your TPM reports.

    Mmmm... yeah. You see, we're putting the coversheets on all TPM reports now before they go out. Did you see the memo about this?

    Yeah. If you could just go ahead and make sure you do that from now on, that will be great. And uh, I'll go ahead and make sure you get another copy of that memo mmm'k?
  • by sean23007 (143364) on Friday October 07, 2005 @11:02AM (#13740157) Homepage Journal
    No sane business operator enters a contract in which one party has the right to disregard its terms at will

    That's funny, because every single one of them does it. If you've ever signed a contract for any kind of service, such as cable/satellite TV, DSL, cellular phones, etc, the contract includes the clause: "$COMPANY maintains the right to change the terms of this agreement without notice" or something to that effect. So basically, what he really means is that no sane business enters a contract in which the terms are fair, or that they don't have complete control over their ability to screw the customer in the future. Cute claim, though, since most people don't read that far into the contract (and there's nothing you can do about it, since you need to get your internet and telephone service from them, and you can't get it without agreeing to let them change the terms on you).

    I ran into this problem myself with SBC DSL recently, wherein they changed the terms of the contract after I signed it, stating that after one year, the price goes up three-fold. They didn't even inform me of the change, and acted as if it had always been that way, even though I read the contract and that was not there, and the person on the phone when I ordered the service assured me that there was no such price hike after one year (I specifically asked).
  • by Craig Maloney (1104) * on Friday October 07, 2005 @11:02AM (#13740164) Homepage
    I'm tired of the industry bitching and moaning that only by locking down devices will they provide content. There's a long history of products that didn't quite manage to understand that the customer is king, and letting the customer decide how to use the device and the content only encourages new and exciting ways (read: innovative) to use the content. If the movie industry in the VCR era had its way, there would be no video market. If the recording industry in the piano roll era had it's way, there would be no records and compact discs today. If the software industry of the pre-personal computing era had it's way, we wouldn't have had the personal computing revolution. Innovation only comes by allowing people the freedom to innovate. DRM and the DMCA restrict how that content is used. Imagine if a digital device restricted your ability to record your wedding reception because it detected a watermark from the music from the DJ that restricts replication? We're already watching devices like the TiVo being marginalized because of unrealistic DRM. The industry might want to stop putting up fences if theu want customer to keep coming around. It only takes a few shots out of the windows of the industrys house before people stop coming.
  • Fair Use is Codified (Score:5, Informative)

    by wiredlogic (135348) on Friday October 07, 2005 @11:03AM (#13740172)
    Fair use is codified in that it prohibits any unauthorized reproduction of an entire copyrighted work. It only allows excerpts to be reproduced. You won't fare well in court either, if you try to game the system with things like leaving out one sentence of a reproduced novel or one frame of a movie.

    The Federal Home Recording Act is more empowering since it allows complete copies for purposes of making backups and porting to different media. The only gray area there is the simultaneous use of your copies such as listening to an album legally copied to your MP3 player while a family member listens to the same CD at home.
    • But in the UK, I always understood "fair use" to mean 1 article out of a journal, 1 chapter out of a book, 10 seconds of audio or video, OR 10% of the product, whichever is the smaller amount, -except- for "limited, internal distribution" (such as within a fan society), where provided the material is not released, accessible or used outside of that society, copyright is usually relaxed a bit.

      For example, you're usually considered OK if a sci-fi group meets up to watch a video of Doctor Who together. You're

    • Wrong (Score:3, Informative)

      by Kaseijin (766041)

      Fair use is codified in that it prohibits any unauthorized reproduction of an entire copyrighted work. It only allows excerpts to be reproduced.

      A determination of fair use is made on the balance of a four factors [cornell.edu], including the "amount and substantiality" of the alleged infringement. It is not infringement, for example, to record an entire television broadcast for later viewing (Sony v. Universal, 1984).

      The Federal Home Recording Act is more empowering since it allows complete copies for purposes of maki

    • by Alsee (515537)
      Fair use is codified in that it prohibits any unauthorized reproduction of an entire copyrighted work. It only allows excerpts to be reproduced.

      Akk, someone mod parent down! It is -5 Missinformative not +5 Informative (as currently rated). It is a serious missunderstanding of how Fair Use operates.

      What he is thinking of are the four Fair Use tests listed in US law Title 17 Section 107 [cornell.edu] which reads:

      Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use
  • by Captain Scurvy (818996) on Friday October 07, 2005 @11:05AM (#13740192) Homepage
    But I need TPM for my bunghole!
    • After reading the FA *only* to find out what TPM was (since the rest was even at a quick glance the "same-old-same-old") it hit me that the RIAA should turn to Celebrity Jeopardy [jt.org] for a "friendly-sounding" name for their technology that doles out what you can do with media:


      an album cover


      It's even Retro!

    • "The battle for [corporate] freedom must be won over and over again."
      --Milton Friedman

      Who went on to say, "Our battle against government representing 'We the People' must be ruthless and relentless. A Free Market means freedom for corporate personhood only. The Pursuit of Happiness is the Pursuit of Multi-national Corporate Profit and nothing more. Apart from corporate persons, there is nothing but statistics drawn from the population of nameless faceless consumers and the commodity of their labor. With
  • by mcc (14761)
    If HR-1201 becomes law, every consumer could legally hack any TPM by claiming fair use, and as fair use isn't codified, there would be as many definitions of it as there are consumers.

    Freedom is tricky like that, isn't it?
  • Thank you Mr. Boucher.
    Makes me feel good to be from SW Virginia!
  • Traditional media does an awful lot of reselling and repurposing of content.

    I've seen it all.

    I say leave things as they are and let some of the brighter bulbs, who grok digital, rise to the top and make some money.

    That's what this is really all about anyway.

  • It seems the thrust of this article is that the digital revolution is going to allow all sorts of different licensing schemes: You can rent the movie for a day, the book for a few months, etc (all by downloading to your computer at the press of a button and a charge to your credit card). If we force fair use rules to apply here, he believes you can get around the terms of the license.

    It's a complicated issue, and I'm not sure where I stand. On the one hand, if you rent something, then I don't believe fai
  • No sane business operator enters a contract in which one party has the right to disregard its terms at will, but that's what HR-1201 permits.

    That describes every DRMed product out there, every shrinkwrap license agreement, and most agreements that are imposed on consumers every day. Businesses can, and do, change the terms of "contracts" every day. With DRM they can change what you can and cannot do with a device or data at a whim or an update. Phone companies and cable companies change terms of service

  • Where's the logic? (Score:5, Insightful)

    by brokenarmsgordon (903407) on Friday October 07, 2005 @11:11AM (#13740246)
    I hear this argument all the time and it never makes any sense to me. When the MPAA was fighting for the broadcast flag, they flat-out threatened to stop making television and movies. They said that it would not be worth their while unless they could exercise absolute control over the content.

    I've never seen a more obvious bluff in my entire life. It's like a child threatening to hold his breath until you give in to what he wants. It has no more substance than the "blockbusters" they produce.

    They will not stop making movies or television or music because of piracy or anything else. Why? Because then they'd be making no money. They're threatening to stop making money. The TPM argument (I guess "TPM" sounds better than "DRM") is no different. Without (DR/TP)M, businesses and their advocates muse, no one will make digital content.

    Good. I hope the MPAA and the RIAA and everyone else bows out because the business is just "too risky" from their point of view. The second they do so, they give away their market. Television, movies and music are a very, very competitive business, and there are thousands of people trying to work their way into it every day. There are thousands of people who want their shot at the billions these companies make and there are thousands more who would pleased with the chance to give their stuff away just for a little recognition. Someone else would step in immediately, hopefully or even probably with a better attitude for the market, and seize what can only be deemed a mythical opportunity.

    To suddenly give up a huge position of power and influence... a position that might never been attainable again, is ludicrous. It's a bluff. The MPAA and RIAA have everything to lose by stepping out of the market and we, the consumers, and have everything to gain.

    I just don't understand their argument at all.

    • I've never seen a more obvious bluff in my entire life.

      Of course it's a bluff. The RIAA/MPAA/etc. is not going to withdraw from their line of business.

      I just don't understand their argument at all.

      It isn't an argument at all. It is only meant to appear to be one, and you successfully saw through it.

      However, most people, when presented with this statement, do NOT see this bluff as obvious. They are terrified of losing their music or TV from the sources they currently get them from. And how do they learn
  • No sane business operator enters a contract in which one party has the right to disregard its terms at will,

    Contracts frequently contain terms that are unenforceable because some law makes them unenforceable. For example, many employment contracts contain unenforceable non-compete agreements. Unenforceable terms of a contract can, of course, be disregarded at will. Businesses that don't want their customers to disregard contractual terms should simply avoid putting unenforceable terms into their contract
  • as TPM leaves, so does the digital content that goes with it.

    Good riddance to bad rubbish.

    However I still hold that contract law is more important than Fair Use, and that if you enter into a contract limiting your Fair Use, that is your decision. Once you've entered the contract, don't bitch about your Fair Use, which you bargained away.

    If someone wants to distribute TPM without a contract, they are indeed fools, because then Fair Use would certainly come into play.
  • "That hated TPM would disappear from the market, as there's no reason to employ a lock if everyone has a legal right to the key. But as TPM leaves, so do the digital offerings that come with it."

    What alternative to providing digital offerings is there? The cartels would have to provide content that complies to the new law one way or another or go out of business.

    That sounds too simple to be plausible though.
  • by Zathrus (232140) on Friday October 07, 2005 @11:17AM (#13740307) Homepage
    No sane business operator enters a contract in which one party has the right to disregard its terms at will

    Really? Then there must be a lot of insane business operators out there. Just about every one of them in fact.

    Software EULAs are often completely one-sided, reserving all kinds of rights for the publisher, revoking most rights for the licensee (aka user), and often include provisions that allow them to be changed at nearly any time. Generally they don't change except in the case of a patch -- but if you need that patch to run the software as advertised, or to prevent a potential security breach, then it's not much of a choice.

    Heck, have you ever read through the mice type of your credit card agreement? They can change any of the provisions, including fees and rates, at any time with minimal notice. And implict acceptance is presumed.

    Sorry, but there's plenty of contracts that people and businesses enter into everyday that are completely one sided -- and there is no realistic alternative to them in many cases because it's an industry wide practice. I'd love to see a real business try to go without a bank account of any kind.

    In this case, it's we, the people of these united states, who are getting tired of the presumed guilt and revokation of rights by the media conglomerates. HR1201 simply tries to push the bias back toward the center.

    Oh, and you're going to claim that this will make media companies stop distributing? Really? Honestly? You're claiming that they'll simply close their doors? What complete bullshit. It's a completely toothless scare tactic.
  • I find it amusing that Ross is so afraid of going back to the dangerous IP hinterlands of...1998! Cue the spooky theremin sounds!

    I find it amusing that his line is, "Hollywood was going to find a way to bring you online movies, but not now that you're attacking our precious DMCA!" I saw folks downloading movies in 1998 (remember, the dark ages!). I think we'll do just fine without them. After all, the p2p community was willing to figure this out back when the reward was an MPEG-2 of Titanic.

    I'm not sayi
  • This guy is hilarious!

    At no time in history has maintream consumable entertainment products ever suffered from people being able to use the works they paid for. I have yet to see anything that actually indicates the damages that have been claimed for decades. Does anyone have any examples? They just keep making more and more money... somehow they never think it's enough.

    That hated TPM would disappear from the market, as there's no reason to employ a lock if everyone has a legal right to the key. But as T
  • If the community keeps breaking DRM, DRM is only going to get better. I'd rather come to some sort of sane compromise solution than keep on the present course. What that compromise is, I don't know - I hate compulsory licensing, yet it appears to work reasonably well for radio.

    I've seen people claim that there's no such thing as unbreakable DRM. This would seem to be flatly untrue - DRM is really just a use of cryptography, and, fascinatingly enough, the code-makers have so far kept pretty far ahead of the
  • "No sane business operator enters a contract in which one party has the right to disregard its terms at will..."

    Sounds like my cell phone contract.
  • "If HR-1201 becomes law, every consumer could legally hack any TPM by claiming fair use, and as fair use isn't codified, there would be as many definitions of it as there are consumers. Consumers would be legally sanctioned to break their contracts with the content provider. No sane business operator enters a contract in which one party has the right to disregard its terms at will, but that's what HR-1201 permits. That hated TPM would disappear from the market, as there's no reason to employ a lock if every
    • As long as it is clearly stated on the CD, DVD, or software what the limitations are of the contract under which it is offered, then it falls to the consumer to either fully accept or refuse it.

      No. It is not enough to say that anything printed on a DVD case becomes a contract. There must be clear limits on what you can impose on someone when you are acting as if you are selling them something. If someone prints "Must send us first-born child" on a box it is ridiculous to imagine that anyone should be held

      • A fantastic response.

        EULAs and the rest of it are just varieties of fraud, pure and simple. They exist only to make the consumer give up rights and safeguards that should be, and actually often are, protected by law.

        I could agree with this sentiment. I look forward to the "contracts" line at Best Buy. My intended general point is that -this particular bill- gives too much carte blanche in the whole area of dominion of Fair Use over -real- contracts. I.e., the kind where we have a lawyer, or a handshake.

        Ind
  • THAT's what's really stiffling innovation.
  • by abb3w (696381) on Friday October 07, 2005 @12:51PM (#13741137) Journal
    FTA: What does this infinite flexibility for digital TPM mean for media distributed online? It means consumers will have more choice.

    No. This means that content providers will have more choice about what restrictions they can place on the content that they produce. To the degree that a competitive market exists, this may lead to content providers experimenting with a variety of more restrictive methods of distribution. However, I don't see that this will increase consumer choice. It will increase supplier willingness to continue to make the products available... but that's not the same thing. Will it increase the rate of new creation of material? Encourage new and more talented artists to try their hand? How many currently existing items not currently available in present forms will be put out in these more restricted forms?

    Fact: the RIAA and MPAA are competing for my (and other consumers) entertainment dollars. Fact: basic economics dictates that I will spend my money on the goods that provide me the maximum happiness. Competitors for my entertainment time and money include: Music, as CD, iTunes, or various independent music downloads; Movies, theatrical or DVD; video games; DSL available free-for-bandwidth downloadable web entertainment such as Flash animations, calling people names on Slashdot and other forums, and the good old standby of pr0n; the occasional dinner out, or even cooking in with something a little higher quality than Kraft Mac Books, magazines, and all the other fun hiding out at the local Barnes and Noble; overpriced coffee serving as excuse to flirt with the cute barristas from the local coffee shop; Beer, Wine, and other forms of booze; Tobacco, Marajuana, and other less socially acceptable poisons.

    The US economy is nigh-stagnant, especially for most individual consumers. Median individual disposable income is getting squeezed. Most big-label music of late sucks; I've bought only four albums (Joshua Tree, The White Album, Billy Joel's Greatest, and the Remains of Tom Lehrer) in the last five years, none with material newer than 1990. I've also got about a hundred CDs I picked up pre-2000, that I've ripped onto my Archos player, hooked up (most) of the time to the living room computer. (Zap2It is faster to scroll through than the TV Guide Channel.)

    On the other hand, I've seen Serenity, the LOTR, Harry Potter, Underworld, and the Brothers Grimm in theatres. I've bought DVDs for all of Farscape, about fifteen classic DVDs (Harvey) and as many more from in the cheap bin — matinees are $5.50; modest DVDs are $7-10 each, and I can make better popcorn for cheaper. (Lets leave the one porno video alone, shall we?) While I have HBO as part of my rent, I don't bother taping much, but caught a few of the biggest titles like Spiderman when they went there. I've found three new favorite SF authors via the local library (whoops, filesharing), and B&N is much happier for it. I've also picked up a newer edition of Joy of Cooking than the one I inherited from mom, and my grocery bill has risen nicely. (Alas, so has my waistline...) The owner of the new Sushi shop that opened two years ago knows me by name, and sent me a Christmas card. I've picked up about twenty video games in the time, perhaps half "new" a year or two after they came out, half old classic releases second hand on Ebay; Two of the new titles are still in box, waiting for the day that I finish MOO3.

    There's a LOT of high-quality excelent value competition for my entertainment time and money. If the various content industries want more money, they need to either (a) fix the economy so that more people have higher disposable incomes — which they're not in a position to do, or (b) increase the perceived relative value of what they provide.

    DRM does neither.

  • Contracts? (Score:3, Interesting)

    by Guppy06 (410832) on Friday October 07, 2005 @12:56PM (#13741193)
    "Consumers would be legally sanctioned to break their contracts with the content provider."

    Assuming for the moment that these "contracts" actualy exist outside of publishers' heads, the only reason they exist is because Congress is constitutionally authorized to allow protection of intellectual property to begin with. It isn't a case of Congress giving more powers to the people but less power to the copyright holders, which, as representatives of the people (if only in name), is their prerogative.

    There is no entitlement, no inherent right to intellectual property. And Congress has the right to trash these contracts just as it has the right to let hired killers break their contracts.
  • Yeaaaaah right. (Score:4, Informative)

    by Puls4r (724907) on Friday October 07, 2005 @01:00PM (#13741230)
    No sane business operator enters a contract in which one party has the right to disregard its terms at will

    Suuuuure. Yet, half the products I buy have a licensing agreement that not only tells me I don't actually own the product, but that the "licensing company" has the rights to revoke my rights at any time they please.

    So what the original post really means to me is, that no sane Business would accept a contract like that, but hell, every consumer already has to.

If money can't buy happiness, I guess you'll just have to rent it.

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