November 5, 2001
The Honorable Fritz Hollings
United States Senate
125 Russell Senate Office Building
Washington, D.C. 20510
The Honorable Ted Stevens
United States Senate
522 Hart Senate Office Building
Washington, D.C. 20510
Dear Senators Hollings and Stevens:
The Electronic Frontier Foundation (EFF) writes today to express our opposition to the draft bill entitled the "Security Systems Standards and Certification Act" (SSSCA). EFF is a non-profit membership-supported organization concerned with the civil liberties issues raised by new computing and digital technologies. For the reasons discussed below, EFF issued a statement in its September 21, 2001 EFFector newsletter, read by over 30,000 subscribers concerned with civil liberties in the digital age, urging the public to contact your offices to express their opposition to the SSSCA.
The SSSCA proposes that all future digital devices “include and utilize certified security technologies” (more commonly known as “digital rights management” or DRM technologies). According to the draft bill, DRM technologies would be chosen by negotiations among industry participants and certified by the Secretary of Commerce. Thereafter, all digital devices would be required to support the certified technologies. It would be unlawful to distribute a device that omitted the certified technology or to modify a device to defeat the certified technology. We understand that the SSSCA has not yet been introduced and may yet be modified. We urge you not to introduce the measure in its current form.
In our view, the draft bill suffers from three fundamental flaws.
1. The SSSCA is premature government regulation that will harm innovation and American competitiveness.
The “certify first, innovate later” approach set forth in SSSCA would slow the development of digital technologies at a time when our nation’s high technology industry can least afford it.
Many new American companies are eager to capitalize on our dominance in digital technology. The rise of MP3-related digital music devices provides a case in point. This innovative consumer electronics category, which was nonexistent two years ago, is expected to account for as much as 4% of all non-PC consumer electronics sales in 2001. Had this technology been put on hold until a DRM regime had been chosen and certified, this high-growth segment of the electronics industry would not exist, and consumers would have been denied the benefits of an entirely new way to interact with the music they have already purchased. Innovative American companies such as SONICblue and Apple Computer would have been denied the opportunity to take the lead in the high growth MP3 field.
The exciting “personal video recorder” (PVR) market is another case in point. Three American companies, TiVo, Microsoft, and SONICblue, have seized the lead in this new market by innovating in the marketplace, rather than waiting on federal regulators. Had the SSSCA been in force, in all likelihood their technologies would still be on hold pending federal certification of DRM technology.
The overbroad scope of the SSSCA exacerbates the problem. The SSSCA’s definition of “interactive digital device” covers virtually every imaginable digital technology (including those not yet invented). The draft bill not only reaches all computers, hard drives, printers, software, DVD players, CD players, MP3 jukeboxes, PVRs, video game consoles, and set-top cable boxes, but would sweep in future generations of automobiles, refrigerators, home security systems, cameras, and telephones. With respect to many of these products, there has been absolutely no showing that they contribute in any way to copyright infringement. If the SSSCA were to become law, however, the possibility of unpredictable federal DRM mandates hovering over all of these industries will almost certainly stymie innovation and growth, eroding our nation’s technology edge in world markets.
2. The SSSCA erodes the public domain.
The SSSCA favors DRM systems that take indiscriminately from the public domain in order to give content purveyors unprecedented control over consumer activities. EFF supports protection for intellectual property and believes it is important to compensate authors for creating their works. In the American tradition, however, copyright law strikes a balance, granting limited rights for limited times to copyright owners in order to provide an incentive for creation while reserving other rights for the public. The SSSCA, by substituting a new body of government device regulations for the Copyright Act, upsets this balance in two ways.
First, the SSSCA gives content purveyors the right to control content that would otherwise not be copyrightable at all. The draft bill provides that federally-certified DRM systems must protect copyrighted material “or other protected content.” Accordingly, these DRM systems will enable content purveyors to exercise control over works that have fallen into the public domain or over factual works, such as databases, that would not qualify for copyright protection. For example, an electronic copy of Shakespeare’s Hamlet could be protected by DRM technology, despite the fact that the play fell into the public domain long ago.
Second, the SSSCA re-writes the copyright balance by giving content purveyors control over activities beyond the reach of copyright law. In particular, the SSSCA provides that certified DRM systems must provide “secure technical means of implementing directions of…rights holders…with regard to the reproduction, performance, display, storage, and transmission” of digital content. Copyright law, however, has never granted copyright owners the right to control all of these activities. Copyright law, for example, only reaches public performance and display. The SSSCA, however, would permit content purveyors to use DRM technology to reach into a citizen’s home and control what she can do with her books, movies, or CDs. So, for example, certified DRM technologies could prevent citizens from “fast-forwarding” commercials embedded in DVDs and broadcast programming.
Most importantly, the First Amendment dictates that copyright owners do not have the right to prevent activities that constitute fair use. Device regulations like those contemplated by the SSSCA could eliminate fair use altogether. Today, for example, consumers retain a fair use right to make a copy of a CD they have purchased for use in their car. This right would be meaningless in a world where every recording device included federally-mandated anti-copying technology.
Instead of granting copyright owners powers beyond the scope of copyright law, the SSSCA should affirmatively prohibit DRM systems from robbing the public of their copyright privileges.
3. The SSSCA denies the public a place at the negotiating table.
The SSSCA delegates the selection of DRM systems to “representatives of interactive digital device manufacturers and representatives of copyright owners.” There is no mention of including the public, nor of inviting representatives of consumer groups, civil liberties groups, libraries, educators, archives, museums, musicians, or artists, each of which would be affected by the widespread use of DRM technologies.
Not only should the concerns of the public be heard, but they should be paramount—copyright law, after all, is intended to benefit the public. Any law that aims to build copyright law restrictions into digital devices must also serve the interests of the public. The public interest cannot be left to negotiations by industry giants behind closed doors.
The SSSCA overlooks the public’s interests in another way, as well. The SSSCA sets forth six criteria for evaluating DRM technologies for federal certification: reliability, renewability, resistance to attack, ease of implementation, modularity, and cross-platform application. Missing from this list is any mention of the privileges that copyright law reserves for the public, such as the public domain, fair use, and first sale rights. The criteria also should include consideration of important non-copyright issues, such as freedom of expression, privacy, and the potential effect of DRM systems on archives, libraries, and educational institutions.
In evaluating the desirability of ubiquitous DRM technologies, we strongly encourage you to solicit opinions from interested parties beyond the affected industries. If you expand your investigations beyond the executives of large entertainment and electronics companies, we believe you will find widespread opposition to DRM technologies that rob the public of its copyright privileges.
The experience with the Digital Millennium Copyright Act may also be instructive. In 1998, copyright owners argued that the DMCA’s anti-circumvention provisions were necessary to prevent rampant digital piracy. Of course, in the three years since the DMCA became law, these provisions have been used not against pirates, but against a magazine (see Universal v. Reimerdes), a Princeton computer science professor (see Felten v. RIAA), and a visiting Russian computer programmer (see United States v. Sklyarov), none of whom had been accused of any copyright infringement. Our experience with the DMCA’s anti-circumvention provisions illustrates that over-broad federal regulation of multi-purpose technologies can have dangerous unintended consequences for free speech and science.
In addition to the issues discussed here, we share the concerns expressed by the Association for Computing Machinery (ACM) in their September 26, 2001 letter to Senator Hollings. We are also aware of a grassroots public initiative aimed at gathering public comment regarding the SSSCA (see www.stoppoliceware.org). Finally, we note that IBM, Compaq, Intel, Microsoft, and other information technology companies have expressed concerns regarding the draft bill. We hope you will consider the input of these diverse voices as you evaluate whether to introduce the SSSCA or any similar bill.
Please feel free to contact Fred von Lohmann, Senior Intellectual Property Attorney, at 415-436-9333 or fred@eff.org, if you have any additional questions or if we can be of any further assistance.
Sincerely,
Shari Steele
Executive Director
cc: members of Senate Commerce Committee