REELING IN DIGITAL DOWNLOADERS

Reprinted with permission of Governing.com. Originally published in January 2004.

Bills to protect cable and movie companies, based on a model developed by the Motion Picture Association of America, are moving rapidly through numerous state legislatures. The only problem is that no one can say with certainty what the legislation would do--and many are concerned that it goes too far.

The MPAA wants legislatures to update telecommunications and cable- theft laws to reflect rapidly changing digital technologies, and its model bill has become law in half a dozen states, including Illinois, Michigan and Pennsylvania. "It\'s no different than when the VCR was invented, and we got counterfeit laws passed in the states," says MPAA lobbyist Vans Stevenson.

But critics of the law complain that it goes far beyond protecting the copyright interests of cable and movie companies. They contend that the legislation is so broadly written as to give cable companies control over all sorts of devices that consumers might attach to their televisions or computers--everything from TiVos to firewalls and instant messaging programs. Cable companies could insist that consumers buy all their peripheral devices from them, and the law could have a chilling effect on some software design.

The charges have hit home in a number of states. State Representative Rich Golick, who introduced legislation at MPAA\'s behest late in Georgia\'s 2003 session, now says he has "grave concerns about overreaching language they\'ve got in their bill that could harm consumers and businesses." If his bill moves forward, he adds, it will be greatly altered. Last spring, Colorado Governor Bill Owens issued the first veto of such a bill, saying it was too broad.

One of the concerns is that it would make lawbreakers out of casual, everyday users of technological devices--people with no intention of stealing information. In response to such concerns, the model legislation has been changed to make it clear that there must be an "intent to defraud," meaning that consumers and companies using digital devices in good faith--without the intent to steal content or digital services such as cable--couldn\'t be prosecuted or wouldn\'t be liable in civil suits.

But Jonathan Band, an intellectual property lawyer in Washington, says that intent language isn\'t clear in many states. He uses wireless headphones in his home, for example. But, because he is "re- transmitting" television programming with them, he could be targeted under the law. "If I take something without paying for it, there\'s a presumption I have intent to defraud," Band says. "The biggest problem is that no one knows what the law means--it uses incredibly broad definitions."

The motion picture and cable lobbies are likely to continue pushing versions of their bill in every state. "All we wanted to do was bring the state law up to date so that it adequately protects the services that use this new technology," says Geoffrey Beauchamp, counsel to a coalition of cable and digital companies.  But the days of an easy pass seem to be over. "Bills like these," says Georgia\'s Golick, "need to be studied to avoid the problems that this bill has as written."

-- Alan Greenblatt

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