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#6: A Growing Early Lockdown Threat: Super DMCAs

By - December 15, 2003

Think you control your own entertainment system? Think again.

Don’t Stifle Progress
A number of states are trying to do what the federal government couldn’t: Kill innovation on the broadband Internet.

By John Battelle, August 2003 Issue

What if it were illegal to connect your computer to the Internet without asking permission? It seems unthinkable, but an ongoing legislative imbroglio has brought that very question to the fore.

The fight pits the cable industry and (surprise!) the Motion Picture Association of America against a battery of consumer and civil liberties groups. It revolves around a set of bills that opponents have labeled “Super DMCAs” — state-level legislation modeled on the much-reviled federal Digital Millennium Copyright Act of 1998.

During the past 36 months, these bills have been passed in the legislatures of seven states, including Michigan and Pennsylvania, with nine more waiting in the wings. In each case, the legislation is cloaked in the seemingly benign language of preventing cable signal theft and has been quietly fed to a somnambulating legislative body. But all of these bills also contain extraordinary language that gives the access industry (cable, satellite, and phone) complete control over what devices you can connect to their broadband networks. They also make many things we take for granted — such as anonymity, firewalls, even instant messaging — potentially illegal.

In other words, these bills could create “early lockdown” of the broadband Internet, meaning that every aspect of how the network is used could be dictated by the access provider. And when the rules governing a robust system prevent innovation and favor one set of players above all others, the system withers. Even the Internet.
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With apologies to the MPAA, we’ve seen this movie before. Way back in the middle of the last century, the U.S. phone system (also known as AT&T (T)) was a government-sanctioned monopoly. In a classic example of early lockdown, no devices could be connected to AT&T’s network without the company’s approval. The bulk of what we think of as today’s Internet — personal computers, modems, and all — was rendered illegal before it was even conceived.

Luckily, an obscurely named American startup called Hush-A-Phone took on Ma Bell. Back in the 1920s, folks were just getting accustomed to the idea of using a telephone in a public place. Privacy was a serious concern, so people would cup their hands over the phone receiver to mute their speech. Hush-A-Phone came up with a rectangular plastic attachment that covered one end of the phone. The user spoke into a hole in the middle, ensuring a private conversation. Hush-A-Phone was a hit, selling more than 125,000 units.

Then AT&T got wind of it and sued. It had not approved this innovation. The case went as far as the U.S. Court of Appeals in D.C., and in 1956 sanity won out — Hush-A-Phone prevailed. The case laid the groundwork for the eventual breakup of AT&T and the “attachment” of all kinds of devices to the phone network, including answering machines, faxes, personal computers, and even MCI.

With Super DMCAs, it’s Hush-A-Phone all over again. While the bills vary from state to state, they’re all similar enough to rally a powerful Net-based counterstrike, led by some obvious names (the Electronic Frontier Foundation) and some not-so-obvious ones (the Consumer Electronics Association). Under Super DMCA legislation, it’s illegal to connect an unapproved personal video recorder (a TiVo-type device) to your television; only those approved by your cable company are allowed. Might the cable company prefer a box that doesn’t allow you to skip commercials or that lets you record only certain programs at certain times? Hmmm.

But there’s more at stake than our right to bear PVRs. Innovation, like capital, flows to wherever it’s freest. Places like South Korea and Japan are encouraging open, unfettered broadband networks. There’s no rule stating that the next great leap in technology and media will happen in the United States. We learned this lesson once. Let’s not have to learn it again. There are rays of hope, including Colorado governor Bill Owens, who recently vetoed his state’s Super DMCA bill. If other elected officials follow his lead and take a stand against the cable and movie lobbyists, the Internet will remain a safe place to innovate.

John Battelle directs the business reporting program at UC Berkeley’s Graduate School of Journalism. He founded the Industry Standard and was a co-founding editor of Wired.

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