Unfairly used

THERE'S A STRANGE battle being fought in Congress right now between Hollywood and Silicon Valley over who will define and control digital rights management technology. While it's a little early to say who will win, I think I can predict who's going to lose: consumers. And what consumers stand to lose is the very concept of fair use.

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That our fair use rights are under siege should come as no news flash. As iMac users recently discovered with a Celine Dion CD, not only may you not be able to play the CD or DVD you just bought on your computer, the copy protection may even damage your system if you try. And Jamie Kellner, the CEO and Chairman of Turner Broadcasting, was recently quoted as saying he feels viewers who skip television commercials are thieves who are guilty of stealing network programming. So if the media giants have their way, fair use won't even extend to using the bathroom during the commercial breaks.

You might think Congress, which wrote the copyright laws that created the concept of fair use, would be stepping in to put a stop to this abuse. On the contrary, so far Congress seems eager to sell consumers' fair use rights down the river, and it's just a matter of determining who will be the highest bidder.

To understand what's happening here, it's going to be necessary to wade through the acronym swamps. And as this quagmire is even more treacherous than the ones we've trudged through before, I hope you will forgive me if I make a few mistakes on what some of these acronyms stand for. I may have used up all my acronym-deciphering brain cells in dealing with UCITA (Undermine Customers of Information Technology Act) for so long.

Congress dealt the first body blow to fair use, not to mention freedom of speech and the rest of the Bill of Rights, when content owners persuaded it to pass the DMCA (Dictatorial Measures Constitutional Amendment) in 1999. But media corporate lawyers soon grew bored with the powers the DMCA gave them to squelch academic research or jail the occasional Russian programmer, and they began pushing Congress for something more. Willing politicians responded with what last year was called the SSSCA (Some Senators Sellout Cheap Act), a bill that would mandate hardwired copy protection technology in all devices capable of playing different types of content. While that bill was never formally introduced, its sponsors tweaked it a bit and then did formally introduce it this year as the CBDTPA (Completely Ban Digital Technology Progress Act).

The SSSCA and CBDTPA seemed so outrageous that it was hard to take them seriously. Few observers think the CBDTPA has any chance to actually be enacted as law, but it may have served the purpose the movie and music industries intended. It has forced high tech to the bargaining table.

Naturally, computer hardware and software vendors aren't too crazy about the idea of the government forcing technology down their throats, particularly if it's technology designed in Hollywood. This has led to some rather absurd strange-bedfellows phenomena, such as Gateway Computers proclaiming itself the champion of consumer rights in opposing the CBDTPA. Note to Ted Waitt: Until Gateway renounces the Hill vs. Gateway court decision, which allowed Gateway to mislabel the components of computers it sold, it is the last company that can claim to be on the side of consumers.

The Intels and Microsofts are far from opposed to digital rights management technology, of course, but they want to be the ones controlling it. The danger for them in the CBDTPA was that it would leave it up to the FCC to mandate a copy protection standard if the concerned industries couldn't reach a consensus on their own. In addition, Congress has been salivating for years over the prospect of auctioning off the digital spectrum when HDTV finally makes it big, so the motion picture studios' demands for protection from digital piracy carries considerable weight. Knowing this, and knowing the FCC is institutionally much more disposed to the needs of the media companies, high tech appears ready to cut a deal.

And the place where the deal is going down is one that may even be less open to consumer input than the process that created UCITA. A group called the CPTWG (Copy Protection Technologies Working Group) has formed a subcommittee called the BPDG (Broadcast Protection Discussion Group) -- really, I'm not making those up -- to create what some critics have called a "mini-CBDTPA." This is basically the proverbial smoke-filled room where the various moneyed interests can hash out a copy protection standard that will at least apply to digital TV. Consumer groups are nominally allowed to participate -- if they're willing to fly to Los Angeles at a moment's notice to be ignored -- but the press has been specifically excluded.

"Essentially what Congress has said is you private industries go off into this little room and then come back and tell us what consumers' digital rights are supposed to be," says Fred von Lohmann of the Electronic Frontier Foundation, one of the few valiantly trying to represent consumer interests in the BPDG process. "Last time I looked, that's not the way it's supposed to work."

Even assuming the consumer side is ignored or booted out (von Lohmann has been threatened with exclusion for discussing the BPDG at http://bpdg.blogs.eff.org ), any consensus the BPDG reaches is likely to be fragile. Von Lohmann fears that means Congress won't risk subjecting the group's findings to public discussion and will instead just mandate that the FCC implement them in its rules.

It's anyone's guess what the outcome of this process will be, or even when the outcome will be made clear to the public at large. But it is a fair guess that fair use doesn't have a fair chance.