2001-10-22 Re: Content Control and the SSSCA

FROM:
	Ed Halley	
	ed@halley.cc
	United States Native and Citizen
	Comstock Park, Michigan

	The body of this letter also hosted verbatim at http://www.halley.cc/ed/politics/ .
	Permission to copy the text of this letter in whole or in part with attribution is hereby granted.
	This letter has been published online for discussion of the issues contained within.
	This letter was sent via electronic mail and postal mail to the addresses below.

TO:
	President George W. Bush
	president@whitehouse.gov
	1600 Pennsylvania Ave., NW
	Washington, D.C. 20500

TO:
	Senator Carl Levin of Michigan
	senator2@levin.senate.gov
	269 Russell Senate Office Building
	Washington, D.C. 20510-2202

TO:
	Senator Debbie Stabenow of Michigan
	senator@stabenow.senate.gov
	702 Hart Senate Office Building
	Washington, D.C. 20510-2204

TO:
	Representative Vernon Ehlers of Michigan, Third District
	rep.ehlers@mail.house.gov
	1714 Longworth House Office Building
	Washington, D.C. 20515-2203

SUMMARY:
	Regarding any bills such as the SSSCA proposed by Senator Fritz Hollings (D-SC).
	Do not pass legislation that erodes civil rights in exchange for corporate profiteering.
	Do not pass legislation that disregards established fair use doctrine and stifles technical innovation.
	Detailed reasoning for my position is included within.  Please consider.

To my honorable representatives in government,

I am writing to discuss my position on a very important topic which faces all of you, and all of the constituents who have collectively elected you as our representatives in this nation of ours. It pertains to the current discussion regarding the proposed bill known as the Security Systems Standards and Certification Act, or SSSCA. Since my position does not revolve around rhetoric or litmus or partisanship, I hope that all four of you consider my thoughts carefully as you weigh your responsibilities to serve the country.

In way of introduction, I am a computer software engineer by trade. I hold the position of Chief Technical Officer of a very small technology-based firm which I founded in 1998. Like many Americans, technology has become involved in a major way in my family's household life, as well as in the workplace. Matters of technology, and of their use and construction and creation, are clearly areas which affect my livelihood as well as the marketplace to which I offer my goods and services. Thus, it is vital for government to exercise the proper restraint and balance when it comes to these issues.

The matter at hand is the proposed SSSCA, currently in working draft form and due for a hearing in front of the Senate Commerce Committee on 25 October 2001. This proposed legislation has many problems on many different levels. I hope to point out specific flaws and more general issues with the ideas in SSSCA, as well as similar legislative attempts in the past and present which pose a risk to technology development and civil rights in the digital age.

In the pages to follow, I will separately discuss my arguments against laws such as the SSSCA on its scope, its technical shortcomings, its civil impact, its business aspects and its motivational grounds. In no area of my thoughts does the SSSCA truly make any sense to me, and I urge you consider these points on behalf of all of America.

Scope Arguments against SSSCA

There are a disturbing number of terms that are introduced in this draft which make it very unclear as to what the intended scope of the legislation may be, not to mention the unintended scope that may result should such a law be passed. The bill tries to establish a new design methodology on anything which happens to include both copyrighted material and digital electronics. Such a tying of concepts is both myopic and borders on the absurd in the scope it would imply over every aspect of life.

There are two phrases discussed in the proposed bill. One phrase concerns "copyrighted material or other protected content." The other phrase subjects "any interactive digital device" to the domain of influence for this bill. Let's look at both.

"Copyrighted Material or Other Protected Content"

The world is virtually saturated with copyrighted works, so I'm not sure where to begin looking for what must be the intended thrust of this legislation. Every sculpture, every design, every painted or photographed or penciled image, every sound recording , every animation and every text is automatically and immediately protected by copyright law, with or without government registration, unless the work is granted over into the public domain.

The term "protected content" is also likewise vague. I must ask myself, protected from what? Copyrighted materials are already legally protected from unauthorized copying, so this must mean protection from something else. Perhaps it is protection from dissemination, but that is itself an act of copying. Perhaps it is protection of military grade secrets and classified materials, but this is for all electronics, not just those used by the government. Perhaps it is protection from being read or seen or heard or accessed in any way. There are already devices which don't allow the user to access the content in any way that they choose. For example, most DVD players won't even allow you to fast-forward through the advertisements that precede the movie on a disc you purchased.

Maybe instead, the inclusion of "other protected content" is a sort of hedge against future uncertainty. Copyright is actually supposed to be a time-limited concept; a piece of artwork may actually outlive the copyright that was placed upon it, and would thus no longer be protected by copyright. The works of Shakespeare and Jane Austen come to mind; they can be copied freely, even if the heirs of those estates were adamantly opposed. Given the evidence, that must be what we're talking about here, this is copyright and beyond, in perpetuity, so that the rights of the publisher can be extended even when the copyright cannot. This would be protection against otherwise legal copying.

With a protection like this, who needs copyrights, because the work would be protected by certified digital devices forever, or at least until the devices broke down with age. That brings us to the other phrase that defines the SSSCA.

"Any Interactive Digital Device"

As I look around the home in which I write this letter, I can count well over a hundred interactive digital devices of all makes, shapes and sizes. More exist outside the home. We must thus subject the designs of these devices to such a bill's domain: wristwatches, coffee makers, alarm clocks, range-finding binoculars, engineering oscilloscopes, paramedic heart defibrillating devices, automatic film-based cameras, stereo and television remote controllers, and car alarm controller keychains. Even an automobile is a device which is both interactive and uses digital electronics for its operation. Of course, not all of these devices deal with "protected content" though many do in fact have programmable features which can use copyrighted materials. To be fair to the proposed bill's spirit and not its current letter, I will just limit my search to only those devices that blatantly involve the use of copyrighted material as its prime function.

Even if this phrase were corrected to state a more reasonable scope such as "any interactive digital device which is designed primarily to store or process copyrighted information," we're still talking about an amazingly large number of devices and many unforeseen consequences. Telephone answering machines may be loaded with copyrighted celebrity announcements, personal digital assistants may be loaded with copyrighted software, standalone digital audio speakers clearly process the digital music to let the listener hear it, facsimile (fax) machines may be loaded with copyrighted cover page art, talking plush animal toys may recite copyrighted character voices, analog cell phones and digital pcs phones may include copyrighted ring tones and screen graphics, and the list goes on. Perhaps it wasn't these devices which this poorly worded bill intended to include, either.

Let's try to refine this further. Change the phrase to state that "any interactive digital device which is designed primarily to input, store, process and output copyrighted information," were subject to the controls listed. Now we're only talking about those things that may allow digital copying or access to copyrighted works. This remains a remarkably large number of consumer and professional devices! For example, we still must include a musician's keyboard, a telephone answering device, a computer printer, a scientific calculator, a global positioning system receiver, and many others. All of these devices allow the input, the storage, the processing and the output of digital copyrighted works in digital form.

Of course, this sort of legislation is blind to the global marketplace, or arrogant in the approach that it takes to try to control the rest of the world. Foreign countries will always, and as good business minds, they should always make products that the United States citizen wants to buy; government certification should be limited to things that really matter, such as personal safety. We're talking about millions of manufacturers of toys and tools that raise the standard of living for our own citizens. All of these otherwise legal and valued manufacturers abroad would have to close down, extend their development, and/or raise their prices to accommodate the laws that our country has foisted upon their businesses in the name of Hollywood profits.

Lastly, and most importantly, there are hundreds of billions of dollars, if not many trillions, in corporate commercial assets that are in the field in the United States alone, which inputs, stores, processes and/or outputs copyrighted information. Every desktop computer purchased for home or business or government, every backroom server computer purchased for the company's email or website or databases, every network switch that makes those computers communicate with each other, every network router that makes those computers connect to other networks, every telephone switch, every internet gateway, every fiber optic or copper-based switchboard, every satellite uplink or downlink dish. If an existing grandfathered device fails, a new certified one must be acquired or built, even if it is less capable than the one that went out of service.

All of these interactive devices traffic in terabytes-that is trillions of bits of information-of copyrighted materials every day, and we haven't even begun to discuss bootleg movies or popular music.

This proposed bill seriously underestimates the scope and variety of "copyrighted material" that we as a modern society use everyday. The bill also completely ignores the established function of digital electronics in storing and processing of those copyrighted materials.

Civil Arguments against the SSSCA

I think many citizens have to look at the nature of copyright to understand the full implications of this kind of legislation. The average citizen's only contact with so-called Section 17 Copyright law is the "FBI Advisory" graphic which precedes every movie videotape, and so with little wonder, people have been lulled into thinking that the idea of copyright only applies to movies and perhaps audio compact discs, also.

I do not need to explain to you the full weight of copyright law. It would be improper for me, both because you are experts in the legislative process and the Constitution, and because I am not a lawyer or expert in these legal fields. However, I will ask that you consider these thoughts as I summarize them for the other readers of this published letter.

In the Constitution, there is really only one key phrase that addresses that of intellectual property. Section 8, Clause 8 reads as follows:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Since the middle of the last century, the word limited has virtually vanished. Each time the span of Copyright has nearly elapsed, the span was redefined, ostensibly to create family dynasties and corporate fiefdoms around popular works and images such as Mickey Mouse and Elvis Presley. Of course, the word useful has long disappeared in all but the original parchment, as judging the arts on their merits seems on its face to be impractical and unpracticeable.

Copyright is one of the three pillars of intellectual property: Patent and Trademark also come from this cradle. Of the three, copyright is the most important to the average citizen, to the librarian, and to the publisher. Benjamin Franklin was a patriot and a publisher and yet he opened the first public library, with the civic vision that sharing information in a culture and community trumps the rights to profit from those written works. Justice O'Connor agreed in 1991: The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." To advance the arts and sciences, one must learn and build upon the existing works.

The concept of Copyright has clearly become Big Business. Big Business doesn't have any vested interest in civil rights. Their DMCA is now law, and with disastrous unforeseen results to our civil liberties. Fair Use has been circumvented and unprofitable behavior made criminal. Three cases ought to tell you that the DMCA has gone far beyond what should have been passed into law. Firstly, a corporate standards group publicly challenged hackers to break their protection scheme; the result is now Professor Felton vs. RIAA, for their threats to criminalize his research on exactly that matter. Secondly, an American company Adobe charged a Russian programmer with Federal crimes for writing a program that allows blind users and archivists to access their purchased electronic books; the result is now United States vs Dmitry Sklyarov, even though Adobe quit their involvement when they couldn't put up with the public relations disaster. Thirdly, in an official hearing, recording industry executive Hillary Rosen said that, in her estimation, Senator Hatch would be violating the law if he made a copy of a song for his own wife; the result is now that Senator and amateur musician Hatch is spending more time advocating and defending Fair Use provisions for copyrighted works across the Internet in valid settings such as education. The moral of this story is that if we care about civil rights with regards to the promotion of the sciences and arts, we cannot allow our own rights to be eroded by the maneuvering and lobbying of profit-motivated corporations.

It would be easy for the average person to think that copyrights are only created by those who publish, and that copying is only done by those who wish to mass-duplicate those publications for their own profit. Many kids learned about the copyright issues involved when they found they could skirt the law and copy music without paying for it, using services such as Napster. Copyright has less to do with money, and more to do with creation, and yet neither side, the greedy publishers nor the greedy kids on the net, pay any attention to it.

As it turns out, anyone can make an original copyrighted work very easily. In fact, every original piece of text, every image, every sound you record is automatically and instantly copyrighted for your legal protection. Your snapshots in Florida were copyright-protected by you, even before the film developer handed you the prints. Your telephone greeting on your answering machine was copyright-protected by you, even before your first caller heard it. Your daughter's crayon-scrawling was copyright-protected by her, even before you pinned it to the refrigerator. Your brother's wedding video that you took last summer was copyright protected by you, even before you pressed the rewind button. Supposedly, those rights guarantee that you, the creator, can decide who makes duplicate copies of that original work, and in what form. We have already seen what happens to your copyright protections when the big publishers and electronics producers protect their own interests: most digital video recorders won't even allow you to duplicate your own digital videotapes, because it raises the possibility of illicit copying of the publishers' works.

In the subsequent case law and legislation of this nation, the concept of "Fair Use" has been developed to make this tradeoff between reader and writer, between viewer and artist, more distinct and clear. Under Fair Use doctrine, anyone can copy portions of other works for attributed quotation and discussion, can copy representative materials for illustrative or documentary purposes, can copy and distort recognizable characteristics of existing works for satire or parody, can copy elements of existing art to create original tangential works of art, and can copy whole works for their own archives in case originals are destroyed. Artist Andy Warhol's "Campbell's Soup Label" prints made the Fair Use concept famous, hopefully for more than fifteen minutes. None of these hurt the publishers' profits, yet all of them involve copying. In each case, this sort of copying would not be legal and indeed not possible if greedy publishers had their way, because again, it raises the possibility of illicit copying of the publishers' works.

I may need to make myself clear at this point about my support of Copyright. I am in favor of Copyright, as it is outlined in the Constitution and in early laws on the subject, as long as they also heed the doctrine of Fair Use and treat all artists with equal respect. I agree that wholesale unlicensed reproduction and distribution of a copyrighted work is forbidden by law, including any such work from photographs to vocal recordings to motion pictures. Those who copy and distribute such works should be prosecuted in civil court for undermining the legal rights of copyright holders and for a fair penalty in terms of actual damages faced by the wronged artist. However, devices which only theoretically may be used to break the law should not themselves be against the law. Courts have long contended that devices with a reasonable capacity for legal use and valid fair use should be enabled and encouraged. Make the action illegal, not the device. Disrespecting the copyright of an artist through unauthorized publication is already illegal and it should remain illegal. Laws like DMCA and SSSCA throw the baby out with the bathwater. Instead, we should rely on the laws that already exist which focus on the actual problem: mass production by illegal copyright-infringing factories, both domestic and abroad.

And lastly, let the punishment fit the crime. I cannot imagine what sort of justice is served when the penalty for violating DMCA is in many cases as harsh or even more harsh than the penalty for Capital Murder in the First Degree. What would laws like the SSSCA create in terms of criminal liability for making a copy of your own brother's wedding video?

Technical Arguments against the SSSCA

Technically, trying to block someone from making a high-quality copy of something that exists in purely digital form, such as a movie or song, is not possible. There is a widely quoted adage in the technical community, among lawful citizens and scoff-laws alike. The saying goes, "if you can see it, you can copy it." That is, if it can be rendered to a television screen or to an audio speaker, then it can and will be copied by those who truly do want to copy it. Even if it cannot be rendered to a screen, but can be mass-produced in some fashion, it can be copied. If any device can read the content, then a device exists which can also be made to copy it, with or without encryption. It is futile to try to mandate such features, because those features will be shown to be ineffective.

The movie industry, having obtained their coveted DMCA legislation, has tried to establish that a computer program called "deCSS" was a pirating tool. They reasoned that since this program de-scrambles a movie without a licensed player, that it would create a new black market flood of illicitly copied movies. Theoretically, this is perhaps possible. The reality is, however, that (1) there is already a black market for movies where foreign nationals mass-copied the movie discs, fully scrambled, (2) that movies are too big for wide internet distribution, unlike the cheaply mass-copied discs, and (3) that deCSS was written to allow legitimate access of the movie from a purchased disc on a new device, a personal computer, rather than having to limit the viewing environment to a technically inferior and more expensive pre-existing device or player. It is bad enough that the recording industry sees that application as a violation of their law, but that's not where it went to court. No, this application is known in the case of MPAA vs 2600, a technical news and information journal who merely published a link to one possible location of this program, as a television reporter might publish the address of a known and controversial whorehouse. Freedom of Speech, like any other civil right, means nothing to these corporations when it endangers their profits. The DMCA fights the family man who just wants to use the disc he bought in his own home, while doing nothing to prevent the mass duplication situation which the recording industry is raving about.

All technical attempts at controlling the distribution of content center around the idea of either scrambling the content, or making the production hardware nearly impossible for unlicensed people to attain, or both. This situation ironically spells the end of data integrity, not the security of it. When all devices that could read a file are obsolete and broken, the file is no longer accessible. When the means for decrypting a file are lost or destroyed, again, the file is no longer accessible. This makes legitimate data backups very hard to manage, and the historical record of old data very hard to maintain. Ask the Library of Congress about their archives and they will definitely tell you that copying and accessing old digital information is a big burden, and this is without intentional technical copy control issues to contend with. Add copy controls to devices, and you magnify the problem, because devices are no longer fungible. File and device must be archived together, and the older devices must be kept in operating condition, because the file will otherwise be lost if the matching device should happen to break.

In the technical industries, repairs and data integrity go hand in hand. These are issues that cannot be ignored in any legislation that deals with computer hardware. For a computer device to be certified as complying with some new data requirements, that device must be made up of certified components. Every hard drive, disc drive, floppy drive, monitor and speaker, the central processor and other components all deal with copyrighted material, and are made to be replaced or installed individually by technicians. Thus, separate certification would be required for each of these classes of component, with all of the overhead that certification entails. Repair technicians would perhaps also need some kind of certification or bonding to safeguard their livelihood. Recently, some proposals for content protective hard drive standards were made, and loudly criticized on the issues of fungibility. If data cannot be considered separate from the device, or copied from drive to drive without paying attention to what kinds of data are on the drive, then failing drives endanger the integrity of corporate databases, web sites, user information and all manner of other data. One hardware failure could wipe out massive numbers of original works, client records and anything else. Not surprisingly, the manufacturers backed out of this proposal when talk about "voting with our dollars" was brought into the conversation. The free marketplace will still work to ensure quality and open standards of inter-operability, but not under the likes of legislation such as SSSCA.

One very promising operating system for computers is called Linux, now ten years old in the making, which was built on a philosophy called Open Source. Open Source ensures that the entire structure of the technology is built on individual contributions to a shared effort, a licensing arrangement that fosters sharing and communication of new ideas, and a culture that prides itself on making things inter-operable. There are currently millions of Internet web sites hosted by Open Source products including Linux and Apache, and also millions of technically savvy users who have turned away from the vanilla hegemony in favor of low-cost, high-quality, very configurable and secure software. Certainly, any computer out of these millions of installed base of competitive technologies would be deemed illegal if they operated on software that was highly configurable and manipulatable by end users. These millions of computers would have to have certified operating systems pre-installed instead, even if that meant higher cost, lower quality, slower innovation, less integrity, less configurability and less security for the businesses that depend on them.

Business Arguments against the SSSCA

I am a firm believer in "voting with your dollars" when it comes to bad products. Long before the introduction of the DMCA, I have been aware of what products I purchase, and how this affects my industry as well as consumer choice. Subsequent to the DMCA, I have been keenly aware, and it is this fact more than many others, that I have started to voice my opinions as they relate to government actions in the business world. I personally buy no DVD content or devices, as they include bad controls. I personally have drastically reduced on my music spending, as I feel publishers do not support artists but instead enslave them. If a law is passed that affects all products negatively, I can no longer "vote with my dollars" and walk away from bad products. I must instead consider how to "vote the rascals out" of my government, and hope that some new representative will consider the consumer, nee citizen, as well as the producers of future products.

Legislating any features in products is a bad business move. When a law mandates a certification, this raises a new and high barrier to entry for small companies to develop new technologies. When a law requires compliance, this complicates the business of creating new compliant products, and improving existing products while keeping that compliance. There is only one case for legislating a feature that I think meets the role of government to legislate features: when health or lives are at stake, such as the flammability of a circuit breaker or battery or cord, or the toxicity of fluids or materials, I can support a government action for safety requirements. When only profits are at stake, aiding big business at the expense of small business and consumer interests, I cannot support any such government action.

The SSSCA would have a massive negative consequence in the competition of computer operating systems, as well. For the past several years, in United States vs Microsoft, that company has faced government prosecution for being an illegal monopoly in the operating system arena. Microsoft has stifled almost all operating system competition through their practices in opaque hardware manufacturer agreements, overlapping licensing to businesses which discard pre-installed software, unrelated feature bundling that blocks the use of competing products, and destructive acquisition of competitors. An easy way for a smaller business to damage a competitor has been to insinuate non-compliance with Microsoft software licensing: some local governments have been audited at great taxpayer cost whether or not there was any actual non-compliance. I believe the answer does not lie with government here, but in the public sector. As Bill Gates has often said, Microsoft can become irrelevant in the marketplace in a very short span of time, if they are not careful. In the face of their newest subscription-based licensing terms, companies are now starting to look very closely at the competitors, so they may "vote with their dollars" when the benefits of Microsoft products are not worth the financial cost and logistical pain of their practices. However, while one hand of the government is prosecuting the market leader for choosing their own features, the other hand may be considering legislating certified software requirements on all products. It seems hard to imagine that competition and innovation would be healthy in such a climate.

Motives Arguments against SSSCA

The term "security" is a part of the name and text of this proposed legislation. In looking at my dictionary, I fail to see how this legislation frees anyone using such devices from anxiety or worry, assures certainty, or makes anyone safer. Ensuring that someone cannot hear a song or watch a movie or duplicate a file rarely makes anyone safer, more sure or less worried. Thus I have to conclude that the term was intended to mean that the profit motives of the copyright holders was the thing being made more secure, a protection of the profits that are otherwise put at risk by non-certified devices.

I further suspect that the word "security" is being used in a less obvious way, in tying this legislation to the war against those villains who would attack our culture and way of life. Perhaps stating that this bill has anything to do with terrorism or warfare is stretching credulity. I have to wonder, however, given the recording industry's recent attempts at tying new riders onto the "USA Act" that made its way through our government for our citizens' defense and security. I am gratified to see those provisions were removed from that bill, and hope that future legislation does not include such language.

Ad hominem attacks are not appropriate in a civil debate, and I have no quarrel with Senator Hollings in general, nor with the goals of the Senate Commerce Committee. If Mr. Hollings had written this proposed legislation himself, or with the help of his aides, I would merely consider him to be ill-informed and narrow-minded at the effects his own ideas would be for our nation. However, in truth, I cannot look at this bill and believe that Senator Hollings wrote this, or even had these thoughts himself. The funding of the author's campaigns suggests that the motion picture industry and the recording industry both have been very keen to see Senator Hollings in office this session. As one technical news reporter Dan Berkes put it, "From all perspectives, this is nothing more than a blatant attempt to offer a return-on-investment to campaign donors."

I surely hope that graft is not the case here, but I have little evidence to go on, with regards to Hollings' intent in this bill. Citizens can rarely claim to even begin to understand the legislative process in the detail that you work with every day. However, it strikes me as both unusual and unsatisfactory that Senator Hollings would not clarify his position, his intentions, or any more detail regarding this draft of this potential legislation. When contacted by Dan Berkes, Mr. Hollings' office offered no information about any of the requested key issues regarding the SSSCA draft that has thus far been published. The questions: (1) What is a digital device?, (2) Would this infringe on my Fair Use rights and my own recordings?, and (3) What about Open Source technologies such as Linux? No answers were offered by Mr. Hollings' office. I think I learned once somewhere that a transparent government and an informed electorate were the required staples for a smoothly running democratic society, and frankly, this case does not fit that model.

Summary

I hope that in these pages I have given enough background and detail into my thoughts on why the SSSCA, and similar past and future legislation, are bad news for the citizens and businesses of this country. With all due respect, we as your constituents and as the society in which you live, we all depend on your reasoned and balanced thoughts with regard to matters such as copyright, fair use, corporate interests and consumer rights. I hope that you find the courage to turn down any drafted legislation that would stain these marks against the character of this country's Constitution. We are not a nation of the lobbyists, by the corporations, and for the money. We are a nation of the people, by the people and for the people.

Thank you with all gratitude to your attention and responses,

Sincerely, your constituent,

Ed Halley