Economic and Game Theory
Why the CBDTPA is Wrong

The SSSCA has now been replaced by the CBDTPA " A BILL To regulate interstate commerce in certain devices by providing for private sector development of technological protection measures to be implemented and enforced by Federal regulations to protect digital content and promote broadband as well as the transition to digital television, and for other purposes." Talk about the tail wagging the dog: the entire computer industry is to be threatened for the important purpose of promoting broadband TV. At least the BILL makes no bones about what it is about: as consumers are unwilling to pay for the devices needed to play media content in a form in which the content providers wish to supply it, the BILL will simply force them to do so.

We analyzed the predecessor of the CBDTPA, the SSSCA. From our reading of the CBDTPA, it does not differ from its predecessor in any material respect. Lip service it paid to the idea that encryption software should be open source...but "to the extent practicable" appears to provide an unlimited loophole. Jurisdiction has been moved from the Secretary of Commerce to the FCC and Register of Copyrights. "Consumer groups" are now explicitly mentioned as parties to the negotiations, although who these or any of these groups will be, and how copyright holders such as ourselves will be represented is no more clear than in the SSSCA.

In general, the CBDTPA repeats all the mistakes of the SSSCA, and is, if anything more vague than its predecessor. The most significant issue is what equipment is covered. The bill now applies to

"any hardware or software that --
(A) reproduces copyrighted works in digital form;

(B) converts copyrighted works in digital form into a form whereby the images and sounds are visible or audible; or

(C) retrieves or accesses copyrighted works in digital form and transfers or makes available for transfer such works to hardware or software described in subparagraph (B)."

Parts (B) would appear to be meaningless: a computer not equipped with the mandated hardware would not be able to "convert copyrighted works" anyway. Parts (A) and (C) are hopelessly vague: if the issue is simply reproducing the bitstream, any PC or computer can do this, so the CBDTPA would repeat the policy blunder of mandating hardware and software for the vast business computer market, even internet routers. If the issue is reproduction that involves some sort of decryption, than like part (B) the bill is meaningless - it applies only to computers and digital equipment that choose to comply with the standards.