Roaring Penguin: Hollings Introduces CBDTA

An article written by David F. Skoll titled "Hollings Introduces CBDTA" (the Consumer Broadband and Digital Television Act of 2002) puts this bill introduced by Senate Commerce Committee Chairman Ernest "Fritz" Hollings into context.

I will take some key quotes from this article and add my own emphasis to put the nature of the current debate on Protection of Technological Measures into context. For ongoing discussions in a Canadian context, please join the Canada DMCA Opponents forum.

Are you suffering? Do you feel your rights are denied because the movie and music industry lack effective technological means to protect content? I sure don't feel that way.

So do "pirates" really cost the industry billion, or do they simply prompt movie-lovers to go to the theater? The industry's figures are suspect.

Please think about this section of the article, as it frames the debate. Protecting these industries from "piracy" has been the basic argument in favor of these changes to law.

The statement I have said many times is "Private Copying is not Piracy, it is advertising"!.

Private Copying is discussed in the current Canadian Copyright act which says that copying music "onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance or the sound recording." ("Copying for Private use" from the Canadian Copyright Act). While the act currently focuses on audio works, the concepts apply to many other materials which are currently eligible for copyright privileges.

We are also already paying for private copying through tariffs collected by the Copyright Board on behalf of Collection Societies such as the Canadian Private Copying Collective (CPCC).

The costs to consumers of these Collection Societies is already being criticized in the media. An article in the National Post , "Grey market likely if big MP3 fees imposed" included:

The board is considering heavy fees on MP3 devices and other computer hardware. The fees could push up the price of an Apple iPod MP3 music player, for example, by 5 and a Nomad Jukebox MP3 player by 6.


The music industry successful lobbied for changes to the Copyright Act in 1997 to impose fees on blank tapes and CD-ROMs. The provisions, brought into force on March 19, 1998, essentially legalize the copying of sound recordings by individuals for private use, but in return establish a levy to compensate copyright holders.

It is very confusing, to say the least, as to which of the following is true of Private Copying:

  • it is advertising and thus of benefit to the industry
  • it is legal and already paid for
  • it is illegal and harmful, and thus some further steps are in some way justified to try to stop this activity.
I believe that private copying should be legal and understood as beneficial to the industry. This means the further steps such as protection for technological measures are simply not justified, nor are the tariffs suggested by the copyright collectives.

David Skoll further wrote:

The only practical way to enforce this is to make all digital devices tamper-proof and closed-source. Essentially, Hollings' bill means the end of open-source software.
Open Source software requires that the source code, the blueprints to the software, are available to the end-users of the software. This means that Open Source software cannot be based on any secretive or proprietary information, such as patented algorithms or proprietary interfaces (file formats, communications protocols, interfaces with hardware).

In Europe there is a 1991 European directive on software which states as principles that "interfaces, are not protected by copyright" and that "only the expression of a computer program is protected and that ideas and principles which underlie any element of a program, including those which underlie its interfaces, are not protected by copyright".

This is the direction that Canada should be moving. This would be of great benefit to consumers in that their software becomes interoperable with any other brands, rather than enacting laws that restrict interoperability. This would protect the emerging independent Open Source software industry from attacks from the existing "software manufacturers" or content providers (MPAA/RIAA members) who seem to be intent on using legal attacks to harm competitors.

The harm to those proposing the new extensions to Copyright law of not enacting these laws is theoretical, and based on a specific misinterpretation of Private Copying as harm rather than a benefit.

On the other hand, these copyright extensions represent real, non-theoretical harm to academics, scientists, researchers, independent artists, independent programmers including those part of the Open Source industry, consumers, and others.

Given this context, it is hard to imagine how governments are able to justify these laws which seem to only support specific special interests, but which cause considerable harm and cost to everyone else.