Eternal vigilance

WILL 2003 BE THE YEAR we lose what remains of our digital rights? It’s all too possible.

Perhaps I’m overly pessimistic, but just from the sheer number of political and legal threats to our rights looming in various and sundry quarters, it’s hard not to be. To avoid any nasty surprises, let’s look at the most obvious ones.

The biggest, baddest bogeyman on the horizon, of course, is the Hollywood lobby and the various bills it is pushing on Congress to control the future of technology products. The new Congress will doubtlessly see the introduction of the same or similar bills that we saw last year. The Berman bill, which would give copyright holders immunity for hacking into file sharing networks, is likely to be reintroduced, and we’ll no doubt see one or more forms of the Hollings bill, which would mandate that all digital devices include Hollywood-approved copy protection technology. On the positive side, the Boucher bill, which restores some fair use rights that consumers have lost under the Digital Millennium Copyright Act, is also expected to be reintroduced.

But even if Hollywood’s bills don’t pass, some of the same ends can possibly be accomplished through regulation. The FCC has been taking public comment on the broadcast flag proposal favored by the media giants for digital TV broadcasts. The broadcast flag is supposed to promote the use of digital TV, but many observers believe it will have the opposite effect. “It’s an ineffective solution to a nonexistent problem,” says Fred von Lohmann, senior attorney with the Electronic Frontier Foundation (EFF). “It will make DTV equipment more costly and less interoperable, will restrict open-source developers from participating in the market, and will do nothing to deter Internet piracy.” Yet it’s not clear what the FCC’s next step will be in its rule-making process or whether additional opportunities will be available for consumer groups and other interested parties to provide feedback on specific proposals.

One issue that’s getting hot in the courts is the question of jurisdiction and the Internet, which could lead to a lowest common denominator effect in which we’d all have to live under the worst laws that exist around the world. The High Court of Australia recently ruled that Dow Jones could be sued there for defamation over an article emanating from the United States. The U.S. Supreme Court briefly held up and may still choose to review what seemed to be a reasonable California court decision ruling against DVD makers who hoped to force residents of other states to defend themselves in Los Angeles in copy protection cases.

And then there’s UCITA. 2003 figures to be the make-or-break year for the Uniform Commercial Transaction Act, as even some of its supporters have suggested it must soon be enacted in a number of additional states besides Virginia and Maryland to be seen as viable. It’s expected, therefore, that the winter legislative sessions will see UCITA introduced in a number of states, although we in the opposition camp are not yet clear which states those might be. One thing that is clear is that UCITA supporters will make a push at a meeting of the American Bar Association’s House of Delegates to approve UCITA. What will happen if UCITA is actually put up for a vote to the 500-plus delegates seems to be anybody’s guess, but approval would certainly make UCITA’s prospects for enactment in some states brighter.

A related threat is so obscure right now that I hesitate to bring it up, but it could ultimately have a significant and very negative impact on InfoWorld readers. The same legal groups that originally tried to draft UCITA for a number of years have also been wrestling to update the venerable Article 2 of the Uniform Commercial Code, which governs contracts in sales of goods in all the states. In a compromise intended to placate various interests and get the revised Article 2 sent to the state legislatures, the definition of the “goods” the article covers has been reworded to exclude contracts in “information.”

While left deliberately vague to give courts discretion, this would appear to mean that software and online service contracts would no longer fall under the default rules of Article 2, flying in the face of established precedents in every state. As a change that would create a great deal of uncertainty for IT customers and software developers alike, I’m not sure that anybody’s really happy with this compromise, so perhaps we can hope that wiser heads will prevail. But wiser heads didn’t stop UCITA, so it’s something we’ll need to keep an eye on.

So is this list of potential horrors just my way of keeping you up nights, or is there something you can do about them? As a matter of fact, there is. Consumer and watchdog groups representing your interests are in these fights, but they are few and poorly funded compared to the lobbyists from the software industry, the motion picture industry, the television networks, etc.

The groups that represent the customer side need all the support they can get. I’m particularly partial to Americans for Fair Electronic Commerce (AFFECT) ( www.ucita.com ) for its work on UCITA and the EFF ( www.eff.org ) for the broad range of digital rights issues it covers. But other groups, such as the American Civil Liberties Union ( www.aclu.org ), the Consumers Union ( www.consumersunion.org ), and the Consumer Project on Technology ( www.cptech.org ), are doing very important work as well. Take a look at what they’re doing and decide what you can do to help, whether writing your congressperson or writing a check.

After all, it would be nice if in 2004 you still had a few rights worth worrying about.