The Destruction of American Technological Leadership and Personal Freedom—All in One Piece of Paper

By Joel Hruska

Date: March 25, 2002

Wired has recently covered the introduction of the CBDTPA (Consumer Broadband and Digital Television Promotion Act) into the Senate.  If there’s a bill that has been more misnamed, I have yet to hear it.  The CBDTPA does nothing for consumers, save to bring them even more under the heel of mega corporations. 

The CBDTPA will force all electronic devices that use microprocessors (which is all of them) to incorporate a federally-approved copy protection system preventing the distribution of code or software product.  Two years and seven months after the CBDTPA is passed, it will be illegal to distribute any software code that does not incorporate these copy protection systems. 

Note, I said distribute, not sell. The CBDTPA makes it illegal to give software away.  Linux and open-source software, which depend on volunteers contributing hundreds of hours for free, are dead.  No more amateur software development.  Let’s take a quick look at how that is going to affect you and I, shall we?

Game Modding:  Dead.  Many companies, like Blizzard, have allowed users to mod and release new versions of their software, helping to greatly expand their user community and extend game life.  Under the CBDTPA, it will be illegal for such games to be developed, as they would require circumvention of the copy protection systems now required. 

Anyone out there heard of Counterstrike?  Counterstrike began life as a user-created labor of love for the popular game Half-Life, only to become such an online phenomenon that it became a commercial product with a sequel in the works.  One of the best multiplayer games of 1999 and 2000 was produced by an amateur team who went pro. That can’t happen any more. 

No Half-Life: Day of Defeat (one of the most-played WWII mods online).  No Diablo II mods, including Eastern Sun and Cold Fusion.  Even the classic “Team Fortress” would never have happened under the CBDTPA.   

When you consider how much money game publishers have indirectly made off of user-created mods, it’s a tremendous financial blow to them to discontinue their creation.  But under this new “consumer” legislation, there’s no choice.

No More Linux:  Anyone out there ever heard of Linux? The OS has made tremendous strides in the server market in the last two years, and steadily made the transition from a half-functional product to a tremendously secure and innovative platform for networking?  Under the CBDTPA, Linux development is dead.  Even though open-source software is commercially free (even companies like Red Hat who sell Linux, charge only for packaging and distribution costs, ostensibly), developers are still considered “sellers” under the CBDTPA. 

No more freedom:  Freedom?  Kiss that good-bye.  The open PC?  Closed.  No more burning CD’s to have a backup copy of music.  No more easily backing-up secure data.  You want to write a silly game like Elf Bowling and give it away?  No can do, unless it incorporates government-approved copy protection. No more freedom to decide what data goes where.  Want to download an eBook on your computer and transfer it to your PDA for reading on the subway?  Too bad.  It’s not allowed.


The Perfect Barrier to Entry

Incorporating government-approved copy protection might not be so bad if this technology was free, but it isn’t.  Copy protection schemes today, even bad ones, sell for hundreds of dollars.  Truly effective (or semi-effective) systems sell for thousands.  Any game modder out there got a couple thousand dollars to pony up for the right to pursue what was once an enormously fun pastime?  How about any of you open-source developers?  Or, how about the thousands and thousands of individuals out there who have written programs and released them on the Internet simply because they saw a need?  There are freeware programs that compress data, surf the web, allow for different user interfaces in Windows, defragment hard drives, scan for viruses, allow for the adjustment and configuration of various peripherals in a system, and thousands of other applications.  All of them will be wiped out by a single law that would force their creators to pay licensing fees for copy protection software beyond what any volunteer could reasonably achieve. 

Of course, the MPAA (Motion Picture Association Of America) and RIAA (Recording Industry Asssciation Of America) are both on record with how wonderful the CBDTPA is.  To quote from the article in Wired:  “On Thursday, the Motion Picture Association of America and the Recording Industry Association of America hailed the CBDTPA as the only way to prevent the continuing Napsterization of their businesses. MPAA's Jack Valenti said the measure will "serve the long-term interests of consumers," while RIAA's Hilary Rosen predicted that without it, "online piracy will continue to proliferate and spin further out of control."

Doesn’t this sound familiar?  I quoted him back in December, but it is really worth quoting again. Jonathan Band, a lawyer working for the prosecution in a DMCA-related case, had this to say about user rights,  “…it's a dark and dangerous world out there on the Internet so we really have to be very protective of copyrights, and if that means you lose user privileges, then so be it..,''  

Why is it that the MPAA and RIAA are incapable of coming up with a business model to support themselves?  For that matter, here’s a related question, why do CD’s cost $18 to purchase, but only a dime to make?  Seem unrelated?  It isn’t.  For years it has been known that the RIAA lists money it “lost” to piracy as CD sales it projected but didn’t receive. When CD sales for 2001 were below average, the industry’s number one reason wasn’t September 11th, a terrible economy, or a year which showed truly pathetic talent, it was “music pirates,” who the industry reporters likened to terrorists.

For those of you who are interested, I refer you to an evocative article published on Salon.com entitled Courtney Love Does the Math.  It’s an in-depth look at the corruption of the music industry and how, exactly, artists can create albums that go double or triple platinum, yet declare bankruptcy ten months later.  Think the artist is getting much compensation out of that $18 CD price?  Think again.  Ever wonder why CD’s hold so little music?  Give that article a read.

Where do consumers’ long term interests lie?  With a set of companies who has blatantly announced its attempts to control every single bit of information passing over your computer?  I think not.


The Stifling of Innovation and the Destruction of America’s Technical Leadership

 I can think of no better way, in fact, to destroy America’s position in the 21st century as a technological leader than by passing the CBDTPA.  Controlling US software and hardware, after all, is bad enough, but what do we do about foreign products?

Consider, for a moment, how much of the IT hardware we consume on a yearly basis is produced overseas by foreign companies.  ASUS, MSI, ABIT, IWILL, EPOX, ECS, AOpen, Albatron, Tyan, and a host of other companies are NOT US owned or operated.  Are we going to dictate to foreign companies under what grounds they can sell products in this country?  Are we going to tell VIA, ALI, ATI, and SiS that they must make products that conform to our standards, despite the immensely higher cost of doing so?  Keep in mind that these countries are not American owned.  They do business here, but they are not under our legislation.  Such legislation, in fact, could violate the much-vaunted WTO rules that regulate free trade.

Consider, moreover, what a move such as this would do to innovation on the software level.  It’s not enough to have a great idea and a website anymore; you need a great idea, a website, and five thousand dollars to pay for copy protection software.  Who can afford to innovate?  Not only does this hit the little guy, who volunteers his time, it hits the big guys too.  Security standards cannot be hacked into a finished product, but must be designed into it from the ground up.  How many fewer software projects will even a company like Microsoft evaluate because of the overwhelming license cost? 

How, by God’s green earth, is a move like this good for consumers’ long term interests?  Is stifling innovation, angering the entire IT community of Taiwan, forcing billions upon billions of dollars in software and hardware redesign, federally mandating control systems, and destroying the entire idea of innovation on a grass roots level, really in the long term interests of the consumer or anyone else?

It is noteworthy to look at the company’s opposing the CBDTPA.  Intel.  AMD.  Microsoft.  A host of other technical companies who know what a bill like this will do to the American technical market.  You’ll see a technical migration of unprecedented proportions.  America is not the only prosperous first-world nation from which one can make an IT living, and there are huge markets opening up in countries such as China and India. 


Remembering the Past and the Failure of Prohibition.

Of all the legislative drives that failed in the 20th century, Prohibition certainly was one of the most spectacular ones.  America outlawed drinking and re-allowed it a decade later.  But given the moral and health reasons not to drink, why did Prohibition fail? 

Prohibition failed for numerous reasons, but one, I think, rings particularly true today.  Prohibition failed because it turned an ordinary citizen who wanted a beer after a long day, or a glass of wine with dinner, into a criminal.  It took a minor, meaningless recreational activity and, in the name of protecting us from those who drastically abused a substance, forbade it to all.

And it failed.  Miserably. 

Now, fast forward to the present day.  Anybody want to prosecute somebody for writing a game which he gave away?  How about throwing someone in jail because he wrote a word processor?  Or arresting someone for making copies of music for his own personal use that he legally bought in a store? 

Anybody think the judges, cops, and other law enforcement agents are so bored that they have got nothing better to do than walk around snooping on their neighbors for having listened to an MP3 that wasn’t properly licensed?   

Prohibition failed because the punishment utterly failed to fit the crime and there was no social consensus that a crime was even being committed in the majority of cases.  The same is true today. 


Where to go from Here

If this concerns you (and it should concern every American, whether technically oriented or not) I’d pick up the phone and call your senator.  Senate office numbers can be found at www.senate.gov.

This country was founded by the people, for the people, not by the large, dominating special interest groups for the continuing existence of the same.  This is not a bill that serves consumer interests.  It isn’t even a bill that serves the interests of the artists or musicians whose rights are ostensibly being protected. 

This is a bill that serves the interests of horribly exploitative groups looking to protect their own bloated profit margins.  Instead of embracing the idea of music distributed online, the RIAA has done everything in its power to stop it—so much so, in fact, that the judge overseeing the Napster case recently ordered an investigation into the RIAA’s approved distribution centers, to ascertain whether or not Napster had been unfairly cut from distribution consideration in preference to other organizations. 

Your rights are not being protected here.  In fact, they aren’t even being considered.  And if you don’t care enough to pick up the phone and make a five minute phone call, the ugly truth is, you don’t deserve them.

Whether you’re a citizen or a potential citizen of this country, you have the right to give your input into pieces of legislation like the CBDTPA.  You have the right to call your elected representative and tell them how you feel.

Best do it now before the bill is passed.  It’s a lot easier to defeat a bill on the front end than to overturn a law on the back.  But it’s up to you. 

"Those who would give up essential Liberty to purchase a little temporary Safety deserve neither Liberty nor Safety." Benjamin Franklin


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