2001-10-22 Re: Content Control and the SSSCA
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.
President George W. Bush
1600 Pennsylvania Ave., NW
Washington, D.C. 20500
Senator Carl Levin of Michigan
269 Russell Senate Office Building
Washington, D.C. 20510-2202
Senator Debbie Stabenow of Michigan
702 Hart Senate Office Building
Washington, D.C. 20510-2204
Representative Vernon Ehlers of Michigan, Third District
1714 Longworth House Office Building
Washington, D.C. 20515-2203
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
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
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
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
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
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'
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.
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,