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IN THIS ISSUE DECEMBER 2001

• Chair's Letter
• First Information Security Conference
• 2001-2002 Committees
• HIPAA Payment Study Group Established
• Malingering and Behavioral Science: A Jurisprudent Therapy Perspective
• They are Playing Our Song Again: New Proposals to Amend the Copyright Act

THEY ARE PLAYING OUR SONG AGAIN: NEW PROPOSALS TO AMEND THE COPYRIGHT ACT
-Williams Sloan Coats, Heather L. Rafter, Vickie L. Feeman, and Gabriel M. Ramsey

Congress is once again going to be faced with a new proposal to amend the Copyright Act. Democratic Senator Fritz Hollings and Republican Senator Ted Stevens have released a draft of their proposed Security Systems Standards and Certification Act("SSSCA") dated August 6, 2001. Promising a struggle as provocative as that generated by the Digital Millennium Copyright Act ("DMCA") just three years ago, the SSSCA is reopening legislative debate on the divisive issues at the intersection of copy protection, the rights of artists, and consumer rights. In order to u n d e rsta n d t h e significance of this latest salvo, it is important to understand the recent history of the efforts to strike a balance in the world of digital content.

The CD Revolution
The release of audio content on compact discs spelled the end of the analog record album and the beginning of the digital content revolution. The audio CD was released with no copy protection, which had consequences unanticipated by the recording industry. The growth and easy availability of CD "rippers" and CD "burners" made it easy for consumers to make copies of their favorite audio tracks. The music industry had grown used to consumer copying of record albums onto audio tape. But audio tapes wear out and lose quality if multiple copies are dubbed from them. This is not so of digital CD's, from which perfect copies can be made every time. However, it was only the growth of the Internet, and the availability of MP3 technology, such as displayed in the Napster case, that turned a nuisance into a disaster from the music industry's point of view. The music industry, and now the movie industry, learning from those early missteps, have been much more vigilant in addressing the threats represented by new technologies. The content industries have responded with a collection of legislative and private initiatives during the last decade.

The Audio Home Recording Act
In the early 1990s, the music industry was faced with a new digital media, Digital Audio Tape ("DAT"), and it was trying to avoid the problems presented by the audio CD. Thus, after extensive negotiation, the Audio Home Recording Act ("AHRA") was added as Chapter 10 to the Copyright Act to govern digital audio recording. See Audio Home Recording Act of 1992, Pub. L. No. 102-63, 106 Stat 4242 (1992); 17 U.S.C. §§ 1001-1010 (1994 & Supp. IV 1998).

The AHRA resolved the longstanding debate among the music industry, consumer electronics manufactures, and consumers over the legality of home audio recording. Until the advent of digital recording technology in the late 1980's, the inferior sound quality of home tapes assured a substantial market for original audio recordings. However, the development of DAT technology in 1987 shifted the balance by enabling perfect fidelity copies, regardless of the generation of the copy.

To cope with the changing environment of audio recording enabled by DAT technology, the record companies and hardware manufacturers engaged in worldwide negotiations and came to an accord on July 28, 1989. See H.R. Rep. No. 102- 873, pl. 1 (1992). It took two more years, until June 1991, for other factions of the record industry, such as music publishers, songwriters, and performing rights societies to sign an agreement, which was then presented to Congress. Although the Copyright Office, consumers, and the Administration all supported the AHRA, it went through numerous hearings and revisions before Congress finally passed the bill on October 28, 1992.

The AHRA provides manufacturers and distributors of digital or analog audio recording devices and digital or analog audio recording media immunity from copyright infringement actions. See 17 U.S.C. § 1008 (1994 & Supp. IV 1998). In exchange for this immunity, the AHRA requires manufacturers and distributors to contribute royalties for all digital recording devices and recording media imported to or distributed in the U.S. See 17 U.S.C. §§ 1003-1004 (1994

The Digital Millennium Copyright Act
On October 12, 1998, in the twilight hours of its fall term, Congress passed the Digital Millennium Copyright Act ("DMCA"). The DMCA provides substantial protections against the piracy of digitally transmitted works and thus paves the way for increased distribution of copyrighted works over the Internet. The DMCA was the culmination of a fierce two-year battle between the Hollywood studios and recording and software industries on one side and the computer and consumer electronics industries, on-line service providers, and the American Library Association on the other. The content providers ultimately prevailed over the computer and consumer electronics industries. The DMCA grants copyright holders the right to control access to copyrighted works by subjecting them to technological protection measures and outlaws products that enable consumers to circumvent such measures. It requires manufacturers of analog VCRs and camcorders to respond to copy protection technologies. It also prohibits the removal, alteration, or provision of false copyright management information conveyed in connection with copyrighted works.

The DMCA treats on-line service providers favorably, granting them safe harbors from direct, contributory, or vicarious liability for various activities such as transmitting or caching infringing materials. The content providers likewise benefit from those provisions, as they require immediate removal of infringing materials from the Internet. The DMCA also modifies the statutory licensing scheme for sound recordings and requires motion picture distributors to assume certain obligations in connection with transfers of copyrights.

Private Groups Attempt Copy Protection
The content industries, together with the information technology and consumer electronics industries, have also tried private, open standards bodies as a way to reach consensus on protection for content. For example, the movie industry has joined with the consumer electronics and information technology industries in an open group, the Copy Protection Technical Working Group ("CPTWG"), that has worked cooperatively to create copy protection standards for DVD technology. A comprehensive look at CPTWG can be found at www.cptwg.org. The music industry also has attempted an equivalent effort in the Secure Digital Music Initiative ("SDMI"), which also is wrestling with difficult copy protection issues. Details of SDMI can be found at www.sdmi.org. Apparently, the outcomes of those private initiatives and existing statutory protections are inadequate in the eyes of some, resulting in the SSSCA.

The SSSCA
The SSSCA will require that any interactive digital device include copy protection technology approved by the Secretary of Commerce. (Section 101) This will be a boon to the copy protection industry in line with the requirement in the DMCA that analog copy protection be included in every VCR. (17 U.S.C.1201(k))

The intent of the SSSCA is to force the information technology, consumer electronics, and entertainment industries to agree upon a set of security system standards within twelve months or the Secretary of Commerce will be required to adopt such standards. (Section 104) The industry groups which can participate are limited to representatives of interactive digital device manufacturers and representatives of copyright owners. If those groups can reach consensus and select a standard, the Secretary of Commerce will turn that standard into a regulation. The Secretary of Commerce must certify technologies that adhere to the selected standards, but only those technologies that are offered for licensing on reasonable and nondiscriminatory terms. (Section 105) Section 107 includes an antitrust exemption for the standards group, and Section 106 provides an exemption from the Federal Advisory Committee Act.

As a trade-off for consumers, Section 103(b) protects the consumer's right make a copy for time-shifting purposes of an over-the-air broadcast, non-premium cable, or satellite channel broadcast. Section 103 specifically provides that no security measure using a "certified security technology" can be used to prevent such a copy. This will be a controversial provision because several large content providers have shown an interest in an analog content protection that would apply to over-the-air broadcasting. The requirements of Section 103(b) would make such a protection system difficult to implement. Section 103(b) also appears to be limited to "time-shifting," ignoring other purposes for copying that have been recently recognized such as "space-shifting" mentioned in Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys, Inc., 180 F.3d 1072, 1081 (9 th Cir. 1999).

The SSSCA also provides for both civil and criminal penalties for violators, linked to Sections 1201 and 1202 of the Copyright Act. (Section 108) Thus, it would be a criminal violation under 17 U.S.C. 1204 to manufacture, import, or sell any "interactive digital device that does not include and utilize certified security technologies" (Section 101(a)) or "remove or alter any certified security technology in an interactive digital device" (Section 103(a)(1)) However, consumers could resell used devices if they buy them before the effective date of any regulations adopted to implement the SSSCA.. (Section 101(b)) In addition, there would be civil enforcement of the SSSCA, pursuant to 17 U.S.C. 1203.

The SSSCA would require that "any interactive computer service" would preserve any security measures included on content that it transmits or stores. (Section 102) The definition of an "interactive computer service" comes from 47 U.S.C. 230(f) and would include most, if not all, online service providers, adding an interesting, and challenging, new obligation for ISPs.

As is typical of all proposed legislation, there is a long, hard row to plow before the SSSCA turns into law, if ever. The debate has begun anew, however, and the difficult issues raised by the SSSCA will perplex Congress and the affected industries for the next several years.