October 25, 2004 4:00 AM PDT
Perspective: Would President Kerry defang the DMCA?
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In a barely noticed remark on Thursday, the Democratic senator said he might support defanging the Digital Millennium Copyright Act (DMCA)--the unpopular law that has prompted take-to-the-street protests from the geek community.
If Kerry is serious, that would be a remarkable metamorphosis on a law that the Senate approved without one dissenting vote. It would also be remarkable because, contrary to what Kerry and President Bush tell you, few differences exist between the two White House hopefuls on nearly any topic imaginable.
Both supported the invasion of Iraq, both applauded the Patriot Act, and both agreed with sweeping expansions of federal spending on education. Neither politician has the moxie to say in public that he agrees with gay marriage, neither will end the war on drugs, and neither would countenance full privatization of Social Security.
Poor Jim Lehrer of PBS, who moderated the first presidential debate, was left scratching his head about what actually differentiated the two men who would be president. Was it Kerry's pledge to undertake two-party talks with North Korea versus Bush's preference for six-party talks?
On technology topics as well, as I wrote in a column in June, there tend to be distinctions without differences. The Democratic and Republican candidates have been singing in two-party harmony about technological innovation, broadband, Wi-Fi, spectrum auctions, and their mutual love for the research and development tax credit.
Still, a few divergences became clear last week with the release of a set of answers that the Bush and Kerry campaigns provided to a dozen questions posed by the nonpartisan Computing Technology Industry Association.
Inalienable right to make backups
Kerry's campaign said the senator might support rewriting U.S. copyright law to let Americans make backup copies of digital media they've purchased.
Pay attention, folks: In the tech world, this maybe-or-maybe-not pusillanimity counts as headline-grabbing news. Right now, under the DMCA, it's unlawful to make a backup copy of copy-protected DVDs or computer programs. The 1998 DMCA broadly bans "circumventing" anticopying schemes, and selling software that can do so is a criminal offense.
Kerry's survey response said he is "open to examining" whether to change current law "to ensure that a person who lawfully obtains or receives a transmission of a digital work may back up a copy of it for archival purposes" or transfer it to another device. CompTIA's open-ended question had merely asked "What should federal policy be toward protecting intellectual property on the Internet?"--without mentioning backup copies.
This is no theoretical debate. 321 Studios was forced to shut its doors in August, after a federal judge blocked the small company from selling its DVD backup software. 321 Studios' utility, the judge said, ran afoul of the DMCA's anticircumvention restrictions.
Kerry's answer appears to be a tentative attempt to side with consumers and electronics makers over the entertainment industry--a rare display of political independence by a prominent Democrat. (Hollywood firms hand money to Democrats over Republicans by a 2-to-1 margin.)
How serious are these guys?
It's not clear, though, how serious Kerry truly is. Reps. Rick Boucher and John Doolittle introduced their bill to defang the DMCA more than two years ago and have been searching in vain for a Senate sponsor. Kerry, a member of the committee overseeing e-commerce, could have lent a hand but never did. If the senator had time last year to announce two bills dealing with tariffs on imported "pouch tuna" from Indonesia, he surely had time to help Boucher and Doolittle.
The Bush administration's stand, on the other hand, is entirely clear: defend the DMCA at any cost. Bush's reply to CompTIA said: "I strongly support efforts to protect intellectual property and will continue to work with Congress to ensure all intellectual property is properly protected."
Buttressing this stand is a report released this month by Bush's Department of Justice. It insists that the DMCA remain intact, saying U.S. law must prohibit "deliberate and unauthorized circumvention." Meanwhile, Bush's trade negotiators have been busy exporting the DMCA to Australia, Chile and Singapore, and Attorney General John Ashcroft invoked the DMCA when trying to imprison Russian programmer Dmitri Sklyarov.
Two other modest differences arose in the candidates' responses to CompTIA's questions about voice over Internet Protocol (VoIP) and spam. In both cases, Bush was far more explicit about what he would do if Americans pick him on Election Day.
On VoIP, Bush praised the technology and suggested that regulators treat it like e-mail--that is, take a laissez-faire approach--instead of weighing it down with the raft of rules that apply to the telephone network. On unsolicited bulk e-mail, Bush predictably touted the Can-Spam Act, which he signed into law last December.
Oddly, Kerry ducked both questions. In both cases, he said only that he's "open" to considering any approach.
That might work for a small-town lawyer running for election as a state legislator. But it's unseemly when coming from a guy who's been in the Senate for two decades and is a senior member on the only two subcommittees that oversee, well, VoIP and spam. It's also important because the Federal Communications Commission voted 3-2 along party lines in February to exempt "pure" VoIP companies from traditional telecommunications regulations. The two Democratic commissioners opposed that move. What side would a President Kerry take?
Unfortunately, both major-party candidates are savvy enough to realize that Americans don't pick presidents based on their telecommunications policies. The problem is that there are so few substantial distinctions in other areas. Just ask Jim Lehrer.
Biography
Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.
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On telecom policy in particular, the two are miles and miles apart. Bush supports giving the telcos (VZ, SBC, BellSouth, Q, etc.) almost full property rights over their networks, unregulated monopolies with only minimal obligations to cooperate with competitors. ISPs themseleves are the enemy, to be cut out of the equation, while consumers end up wiht a choice of cable vs. telco, and just maybe a third wireless or power-line (mostly a farcical fraud, just to give Bush/Powell cover) option. Kerry supports the Telecom Act, including competition at all levels, which means that dominant monopolies have to be regulated.
Kerry is probably more interested in a balancing act on the DMCA. He probably knows that it went way too far, but has to balance it against his funding sources who support it. Bush gets money from Gates and other DMCA beneficiaries too; but he doesn't worry about balancing anything -- his world is black and white, so people who back up their CDs are evil-deuurrs that he and Ashcroft can go after everywhere. Hell, if Kerry were too open about wanting to fix the DMCA, Bush would yell "waffle" or something like that, because Bush, claiming infallibility, never has to correct himself, and attacks those who do claim or have his alleged infallibility.
Unfortunately for your argument, both B&K would keep federal spending at about the same level (~$1.3 trillion more over the next few years), randomly invade or attack other nations (happened under Clinton, let's not forget), keep the military at about the same size, keep taxes at around the same level (give or take a percentage point or two), continue federal meddling in education, keep the size of the federal government at about the same level, keep the Patriot Act largely intact, and so on.
Yes, it's possible to identify a few differences (abortion comes to mind), but they're magnified by the media and the candidates, both of which share an interest in exaggerating them. It's also possible to identify differences between, say, Tom Delay and Dick Armey if you look hard enough -- but in reality their worldviews are similar.
The differences between B&K are more in their personality and outlook on life, not policy. Inject the Libertarian or Green parties into the mix and you'll see that. But of course no Democratic party partisan would admit it.
Indeed, the premise of Declan's article is patently ridiculous if you spend 5 minutes looking into their positions.
As Fred points out, Declan is basically spinning away trying to establish his premise that there is no difference between the two. His main strategy is to mischaracterize everything he links to, but also to take extreme positions and claim that if the candidates don't support one extreme, they must be the same.
Declan's first comment, "Both supported the invasion of Iraq" implies that Kerry supported the invasion prior to the date that it actually occurred. This is Bush's position. However, in support of this "common ground," Declan links to an official statement made by Kerry _after_ they commenced the attack wherein he does nothing more than "hope for the best." Perhaps one could spin facts to make Declan's argument, but he doesn't bother to try and support it.
Declan then goes on to say that "both applauded the Patriot Act." His support? The fact that Kerry voted for it, which is a far cry from "applaud." But Declan doesn't want anyone to know that. He wants you to think that between Kerry and say John Ashcroft, there's no difference of opinion, all despite the fact that there is a well-documented and wide gulf.
Again, with nothing more than a link documenting Kerry's vote for No Child Left Behind, papers over the differences between the candidates on education by saying "both agreed with sweeping expansions of federal spending on education." All despite the fact that it is also well documented that Bush did not fund NCLB. Forget for a moment that either candidate has any other education positions (for example, that the Bush administration was opposed to U. Michigan's admissions program). The fact that Kerry voted for NCLB is meant to show how the two candidates _are_exactly_the_same when it comes to education. Insane.
And lastly, he makes the ludicrous comment "Neither politician has the moxie to say in public that he agrees with gay marriage, neither will end the war on drugs, and neither would countenance full privatization of Social Security." Essentially claiming that if they don't make extreme statements on particular topics, then they have _exactly_the_same_position. If they don't support FULL privatization of Social Security, then they must be the same? (Indeed, if you follow the link, you'll see that one wants to partially privatize while the other does not; many analysists, contrary to Declan's implication, have found the economic impact between these two plans is enormous)
Kerry and Bush also never said that they would pocket Social Security and fly to the Cayman Islands with the money. There must be no difference between their Social Security policies.
Kerry and Bush never said that they like to smoke crack. Their drug policies are identical.
Tax policy? Neither wants to do away with taxes completely. They must have the same policy.
Again, there are numerous and substantial differences between the candidates, and Declan's argument that "few differences exist between the two White House hopefuls on nearly any topic imaginable" is wholly without merit.
Bush's tax hike is more pernicious and will come in the form of rising inflation -- a regressive "tax" that will reduce the value of the U.S. dollar and permit the Treasury to repay the debt with devalued currency. What, you think inflation is really at 1-2 percent a year? Check out the recent debunking of that myth by Bill Gross of PIMCO, whose estimate is probably conservative anyway. (Example: measured properly, oil prices aren't rising; it's the dollar that's falling.)
Look carefully at the two Republicrat candidates and you'll see that differences are not as vast as your "five minutes" of careful analysis would have you believe.
But seriously, lets suppose John Kerry is elected and he decides he wants to repeal the DMCA. It wouldn't matter because he wouldn't have the authority to do so. Its up to congress, dumbass.
it should be publicised. I am sure that he could
go on stage with Dave Mathews to make that annoucement and Dave would be so happy.
Alec Baldwin would be elated to hear this.
Lots of his left coast supporters would be thrilled to know he wants to allow copies to be made.