TCS Daily

Open-Source Legislation

By Glenn Harlan Reynolds - April 17, 2002 12:00 AM

I've written before about why Fritz Hollings' "Consumer Broadband and Digital Television Promotion Act of 2002" is a terrible idea, and why it's likely to be a political disaster for the Democratic party. But I'm not the only one writing -- and therein lies hope for the future of our lawmaking process. In fact, we may be looking at the birth of a new style of lawmaking that will do more to clean up Washington than any of the various campaign-finance reform proposals, enacted or unenacted, that have been occupying the political classes of late.

Hollings' bill is, essentially, a giveaway to Big Entertainment. Well, giveaway is perhaps a bit charitable -- in truth, Big Entertainment paid well for what it got, with major contributions to Hollings and the bill's other sponsors. The bill would make it a crime to sell any digital device -- a computer, PDA, DVD player or recorder, etc., -- unless that device contained government-approved technology to prevent unauthorized copying. It would also make it unlawful to import software -- perhaps even a single copy of a program purchased from a foreign website -- without government permission.

The bill is deeply unpopular with the tech crowd, and with just about everyone else who wants to own a computer that works for them, rather than for Hollywood. But there have been lots of unpopular bills that were sellouts to special interests. What makes this one different is that it's being made obvious -- and what's more, it's being made obvious to the politicians that it's obvious to the rest of us.

The Senate Judiciary Committee set up a website where Americans could comment on the bill, and the comments that have come in are overwhelmingly negative. A few examples:

While there will always be a few individuals bent on illegal action, we must keep in mind the good intentions of the majority. Most people simply want to buy a music CD, and probably copy it to the computer to play at home, and burn a CD for the car for road trips. (Pity the fool who does not make a copy and ruins a $25 CD in a month or two from normal use...) The majority does not have the time, energy, or wherewithal to commit mass fraud!
As the CEO of a national communications and technology company and a veteran "technologist" since the 1970's, I can say with experience that this bill essentially misses a crucial aspect of digital media, which is this: There is no such thing as a secure digital media lock. Period. End of story.
I am a professional writer and would like to state that I strongly oppose measures like the DMCA and other bills designed to prevent copyright piracy. The measures in place before the DMCA was passed were quite sufficient. The DMCA and the measures that have been proposed since it passed all infringe upon the First Amendment in ways that I find unacceptable. I wish my own works to be protected from copyright theft, but not at the cost of our First Amendment rights... I also oppose the current way that copyright is being extended indefinitely for profitable IPs. It is becoming increasingly clear to me that copyright is currently all to often a tool that large media corporations use to make certain that any potentially profitable intellectual property never falls into the public domain. The old rule of 20 year copyright, that was renewable for another 25 was perfectly reasonable for allowing creators of all forms of media to receive just payment for their work.
I am the CEO and President of a Computer Consulting firm that has been in business for 17 years. I am writing you to ask you to halt CBDTPA. The Computer Industry is at a crossroad and both the Senate and House have demonstrated time after time an inability to understand this complex industry that is so important to both our economy and National Security. The Internet can be destroyed through this type of legislation. Take a step back and review this bill... The constant erosion of basic freedom to increase the profits of a few corporations is a form of tyranny. Our nation fought a revolution to ensure the basic freedoms that this bill takes away. I have every right to make MP3 recordings of music I have purchased or TV or Radio programs that have not been strip[ped] of commercial content. Poll after poll has shown that the American Public does not desire the government to regulate the Internet. This is an industry that is in its infancy. Please let it grow without Washington micromanagement.

These comments are from the very first page, and (as you'll see if you follow the link above) they're entirely representative of what's there: Overwhelming opposition, from ordinary Americans, stated clearly and reasonably on the public record for everyone to read.

Well, so what? Unpopular bills have always generated negative mail -- and, lately, negative email.

Yes, but in the past, only the recipients really knew what they were getting. The negative mail was a source of political information for the politician getting it, but not for everyone else. By contrast, anyone who reads the posts on the Senate Judiciary Committee's website will know just how overwhelmingly unpopular the Hollings bill is, and why. This puts the bill's supporters in a very different position: They may claim to be representing the public interest, but when people put together the views of the actual public with readily available information on who's giving the politicians money (in Hollings' case, nearly $300,000 last election cycle from the entertainment industry) it becomes pretty obvious just what is going on. And pretty easy for political opponents to take advantage.

If anyone is paying attention, the Hollings bill should be destined for the oblivion it so richly deserves. But that's only the beginning. I'd like to see all federal legislation presented on the web in a way that would facilitate this sort of criticism. You should be able to see the text of all bills, with comments from interested citizens, and perhaps annotations using tools like Crit that let people comment directly on the text of material presented on the web.

We've spent the past few decades trying to address political corruption using ethics laws and opinion standards. I've argued elsewhere that this approach hasn't worked very well. Transparency is the key to beating corruption. And the Web makes transparency easy and powerful. The Senate Judiciary Committee's site allowing comments on the Hollings bill is a good start -- but if we really want to make a difference we should extend this approach to cover all proposed legislation. Will Congress have the guts? Or would such an approach threaten to overturn too many special-interest applecarts?


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