[om-list] CBDTPA: The Linux Elimination Act of 2002

[Mark Butler]

Anti-Copy Bill Slams Coders 
By Declan McCullagh  
Wired Magazine  March 22, 2002 
http://www.wired.com/news/politics/0,1283,51274,00.html

WASHINGTON -- America's programmers, engineers and sundry bit-heads have not
yet figured out how much a new copyright bill will affect their livelihood. 

When they do, watch for an angry Million Geek March to storm Capitol Hill. 

A bill introduced this week by Sen. Fritz Hollings (D-South Carolina) would
roil the electronics industry by forcibly embedding copy protection into all
digital devices, from MP3 players to cell phones, fax machines, digital cameras
and personal computers. 

But the Consumer Broadband and Digital Television Promotion Act (CBDTPA) would
also wreak havoc on programmers and software companies -- both those
distributing code for free and those selling it. 

No more than two years and seven months after the bill becomes law, the only
code programmers and software firms will be able to distribute must have
embedded copy-protection schemes approved by the federal government. 

To put this in perspective: The CBDTPA would, if enacted in its current form,
have the electrifying effect on computer professionals that the Supreme Court's
decision in Bush v. Gore did to some Democratic Party members. 

Legal experts said on Friday that the CBDTPA regulates nearly any program, in
source or object code, that runs on a PC or anything else with a
microprocessor. 

That's not just Windows media players and their brethren, as you might expect.
The CBDTPA's sweeping definition of "any hardware or software" includes word
processors, spreadsheets, operating systems, compilers, programming languages
-- all the way down to humble Unix utilities like "cp" and "cat." 

"The definition will cover just about anything that runs on your computer --
except maybe the clock," said Tom Bell, a professor at Chapman University
School of Law who teaches intellectual property law. 

Then Bell paused for a moment and reconsidered. "There's a risk you could say
it covers things like even a digital clock program on your computer," he said. 

According to the CBDTPA, any software with the ability to reproduce
"copyrighted works" may not be sold in the United States after the Federal
Communications Commission's regulations take effect. Even programmers who
distribute their code for free would be prohibited from releasing newer
versions -- unless the application included federally approved technology. 

Violators face civil and criminal penalties. 

There is a loophole: Programmers could still create unapproved code on one
computer. But they couldn't give it to anyone else or transmit it on a network.

A second loophole would grandfather in code that existed before the CBDTPA took
effect. Software that was manufactured and in the hands of consumers before the
FCC's rules take effect would be exempt. 

America's National Firewall 

Because the rest of the world hardly seems eager to enact a similar law -- at
least not immediately -- the CBDTPA would effectively erect an informational
firewall around America. 

It could become unlawful for U.S. programmers to distribute any newly developed
non-compliant code after the CBDTPA takes effect. Because the CBDTPA also
regulates importing software, it could be illegal to download non-compliant
code from overseas. 

"(That) Draconian reading is certainly a defensible one, and the DeCSS and
(Dmitri) Sklyarov litigation suggest that it may be a likely one," said Jessica
Litman, a professor at Wayne State University who teaches intellectual property
law. 

"I would expect the Disney studio to argue that either downloading or posting
code that doesn't adhere to the security system standard transports the code"
-- and would therefore be unlawful, Litman said. 

Anyone violating the CBDTPA would be subject to statutory damages ranging from
$200 to $25,000 per violation. An irked content owner would have a quiver of
legal arrows to aim at a violator: Search warrants, impounding or destruction
of equipment used in the illegal activity, plus attorney's fees, reimbursement
for lost profits and actual damages. 

That's not all. Anyone who ignores the CBDTPA's prohibitions -- and does it for
"commercial advantage or private financial gain" -- would face the same
criminal penalties that once threatened the Russian hacker Sklyarov: up to a
$500,000 fine and five years in prison.
 
 R. Polk Wagner, who teaches intellectual property law at the University of
Pennsylvania, says that free software developers could risk criminal charges --
even if no cash transactions are involved. 

"The law has taken people who give it away for free to be sellers for some
purposes," Wagner says. "If you give it away on a site that has ads, or if
you're doing it for reputational value, you're probably still falling in the
commercial category." 

Free Software Movement Woes 

Because the free software and open-source movements rely so much on
international collaboration, the CBDTPA's firewall-at-the-border would create
knotty problems for programmers living in the United States. 

If the CBDTPA were to be enacted, American developers would be sharply
restricted in their ability to collaborate with their counterparts overseas. In
a worst-case interpretation, for instance, the CBDTPA means that only pre-ban
versions of the Linux operating system could legally be sold inside U.S.
borders. 

[ For the rest of the article: 
  http://www.wired.com/news/politics/0,1283,51274,00.html ]

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