MAY 29 - JUNE 4, 2003
-- SURFERS VS BIG ENTERTAINMENT
Surfers vs. Big Entertainment
Tennessee is the latest battleground between consumers and the movie and cable industries
By Peter Jordan
If you google for "DeCSS," you can learn how to decrypt and copy your DVDs. But, oops, willfully publishing instructions on how to circumvent copy protection is a felony under the provisions of a bill introduced in the Tennessee General Assembly this spring. Under the proposed law, this writer and the Scene might be liable for thousands of dollars in daily fines.
In the wake of a firestorm of outrage from Tennessee techies, the controversial telecommunications theft legislation has been heavily amended, and its backers finally agreed late last week to postpone action to give interested parties time for further debate. But meanwhile, members of the local technological community are predicting all kinds of digital doomsdays if the bill becomes law. They regard it as a stealth attack on their technological freedom by big entertainment and big cable, the industries that wrote and heavily lobbied the Tennessee bill and have pushed for similar laws across the nation.
"As originally worded, the bill was so broad and vague that every citizen who legally used a communications service would've been in violation of the law," says Scott Kozicki, chairman of the Tennessee Digital Freedom Network (
www.tndf.net), an ad hoc group formed to fight the legislation.
The bill would even make it illegal to connect your Internet service to a home network without the explicit permission of Comcast or whoever else provides your Internet service, says Luke Kanies, a local Unix consultant. In fact, you could be fined up to $10,000 a day for every device Comcast hasn't explicitly authorized, including MP3 players and even speakers and monitors, Kanies maintains.
These apocalyptic scenarios are "wild claims," counters Vans Stevenson, senior vice president of state legislative affairs for the Motion Picture Association of America (MPAA).
The bill is simply an attempt to prevent consumers from stealing access to products and services for which they should be paying, Stevenson and other cable and movie industry officials argue.
"Neither the cable companies nor the MPAA would ever attempt to outlaw legitimate consumer devices," Stevenson says. "That's just absurd."
"There's no need for anyone to be alarmed or concerned about the law or any products they can use in their home or office, so long as they are not stealing a service they are supposed to pay for," insists Tony Thompson, Tennessee's MPAA lobbyist and the son of former Sen. Fred Thompson.
Rob Briley, the Nashville Democrat who sponsored the legislation in the Tennessee House, has been characterized by techies as an industry stooge, and he's outraged at the notion. "I'm not a big pro-industry guy," he says. "I'm more of a consumer-oriented person, but I do believe this industry has invested a tremendous amount in this infrastructure and its programming and has a right to charge people for its services and an obligation to collect taxes on the sale of those services. Quite frankly, a lot of those comments were personally offensive," Briley says in response to claims that the cable and movie industries have bought and paid for his sponsorship.
Tennessee is the latest battleground in a nationwide war between industries that want to ensure consumers pay for Internet access and content and Internet users who want the freedom to do whatever they want on the Web. The movie and cable establishments want to protect their ability to collect tolls on as many lanes of the information superhighway as possible, while much of the technological world seems to want a freeway rather than a toll road. A parallel battle has been fought with the Recording Industry Association of America (RIAA) and the MPAA over music and movie file-sharing (see "The New Napster," Scene, Dec. 5).
The Electronic Frontier Foundation (
www.eff.org) leads the national opposition to Big Entertainment. Self-described as "a nonprofit group of passionate people--lawyers, volunteers and visionaries--working to protect your digital rights," the EFF sees the new wave of legislation as an Orwellian "extension of the rights of copyright owners into the living rooms of consumers," says Gwen Hinze, a staff attorney for the EFF. "It allows communications providers to dictate what you can connect to the wires in your living room."
Not so, says Stacey Briggs, executive director of the Tennessee Cable Telecommunications Association (TCTA). The only purpose of the proposed legislation is to "expand existing law to include current technology not anticipated in the original law," she insists. Stealing Internet access or advanced digital services, for example, aren't specifically covered in current Tennessee telecommunications law, so the proposed new legislation would protect service providers as they move into new technological territory.
But despite protestations of innocence like Briggs', opponents are firmly convinced that the legislation's broad provisions would have a much more sinister effect--and perhaps a much more malicious intention. For instance, as originally introduced in Tennessee, the bill would outlaw concealment "of the place of origin or destination of any communication." Briggs concedes that the anti-concealment provisions might be construed as a ban on firewalls, but when TCTA and MPAA officials understood the implications, "we quickly realized why folks were concerned and amended the language."
But that anti-concealment language was no mistake, as far as Ken Russell is concerned. Vice president and co-founder of ISDN-Net, which describes itself as Tennessee's oldest and largest Internet service provider, Russell says the proposed legislation "makes it illegal to protect your network because they want to maintain the ability for the music industry and the cable industry to hack into your network and determine whether you're violating copyright."
Russell says a group called InfraGard (
www.infragard-midtn.org) has been working with the U.S. Justice and Homeland Security departments on measures to protect large Internet data networks from terrorist attacks. "We were stunned by the naïveté of legislators who would propose such rules that would contradict not only common sense but absolutely contradict the rules that the Justice Department and Homeland Security have laid out."
Betty Nixon, Vanderbilt's director of community, neighborhood and government relations, first became aware of the bill when a national research library association expressed concern about its potentially chilling effects on academic freedom.
"Our position is that there have been enough questions about unintended consequences raised by people we have talked to within the university and within organizations we relate to that we think it would be better if they put it off a year and look at what's happened in the states where it's already passed," Nixon says.
She got her wish: Action on the bill has been delayed for another year in Tennessee, but it's sure to be back, and debate isn't likely to go anywhere in the interim. Meanwhile, in some states, opposition is mounting to similar bills and laws. In Colorado, after the house and senate passed similar anti-theft legislation, Gov. Bill Owens vetoed the bill, claiming it could stifle technological innovation. And in Michigan, where a similar bill has already become law, an outraged high tech community is lobbying for amendment.
Members of Tennessee's technology community are treating the decision to postpone the legislation here as a partial victory.
"We're happy that the legislature has decided to do the right thing," says Scott Kozicki. "This will allow plenty of time to sit down and craft language that stops theft of service without infringing on the rights of the public."
The bill's opponents are still wary, however. "I plan on celebrating this win as though it were the first game in a seven-game series," says Luke Kanies. "Enjoy it, but not so much that you wake up tomorrow with a hangover. We have a long fight ahead of us to get good legislation created and passed."