An uphill battle
Many bills before Congress would erode consumers' rights, but one measure deserves consumer backing
Follow @infoworldMAYBE IT'S TIME for a little self help of our own.
For years we've associated electronic self help -- the remote disabling of software -- with UCITA, the Uniform Computer Information Transactions Act. And UCITA is going to remain a threat in that regard as long as it remains on the books in Virginia and Maryland. But it's all too clear that the bigger threat now lies, geographically speaking, somewhere in between: on Capitol Hill.
It's almost a bad joke to see how many bills to deprive consumers of digital products their rights were introduced in Congress this year. Bills abound that would mandate all hardware and software products incorporate "technological protection measures" that would allow copyright holders to restrict and even terminate use of their products. And in this highly digitized, highly branded world, those products could be just about any household device you care to mention.
Some people are puzzled when I talk about these "copyright holder protection acts" in the context of remote disabling of software. After all, it's the motion picture and music industries that are hauling buckets of money to D.C. in support of these bills. And they are in fact opposed by many high tech companies as restricting technological innovation. But Congress also had the media moguls' interests uppermost in mind when they passed the DMCA (Digital Millenium Copyright Act) in 1998. That sure hasn't prevented the software industry from using the DMCA for its own purposes, such as jailing Russian programmers or arbitrarily shutting down online auctions of used software. As with the DMCA, any tools Congress hands copyright holders will almost surely be used most aggressively by the software industry for purposes Congress probably doesn't intend.
When it comes to electronic self help, the one thing that the DMCA and most of these proposed bills lacks is a "safe harbor" protecting the virtual repo man from criminal charges under data tampering and anti-hacking laws. Another bill introduced this year by Rep. Howard Berman of California is designed to fill that gap. The "P2P Piracy Prevention Act" (H.R. 5211) has created quite a stir by granting copyright holders immunity for hacking activities of their own, such as denial-of-service attacks, when done to thwart piracy on peer-to-peer networks. Responding to the outrage the bill has generated, supporters have argued in part that Berman's bill specifically prohibits those exercising self help from deleting, altering, or corrupting computer files. And it does, but with a very interesting loophole.
The Berman bill's central provision says "a copyright holder shall not be liable in any criminal action for ... impairing the unauthorized distribution ... of his or her copyrighted work on a publicly accessible peer-to-peer network, if such impairment does not, without authorization, alter, delete, or otherwise impair the integrity of any computer file or data residing on the computer of a file trader." Now, that "without authorization" phrase strikes me as rather incongruous. Why say that it's OK for the copyright holder to rape and pillage, as long as they have authorization? Who in their right mind is going to authorize anyone to impair the integrity of their system?
