CBDTPA and others

LWN readers 

I seem to have missed reading the part of the CBDTA bill that defines
the penalties that this ludicrous legislation would impose.  Judging
from what I have read the penalties for violations seem to be quite
extreme: in ALL cases.  This obviously includes the penalties for us
average citizens that want to utilize our fair use rights on a variety
of platforms and in a variety of places and, god forbid, enable our
friends to do the same.  These penalties also encompass the case of the
media industry limiting our fair-use rights.  Even if the penalty is a
'small' fine.  

Exactly what constitutes fair use is debatable in most cases but the US
Supremes have declared that "time shifting" is legal courtesy of one of
the bill's sponsors: SONY.  When Sony went to court to fight for the
rights of consumers to record programs using their Betamax video system
I don't believe that they were a content company.  Well they are now! 
We can thank Sony for putting the ability to destroy the entertainment
industry into case law.  I realize that the penalties for removing our
fair use rights might simply be a few hundred dollars in fines; I also
realize that the destruction of the industries that provide the
addictive drug for "herion in a box" - I mean television - is just a
fantasy that will never be realized.  However the bill (or more
accurately: case law) provides that penalty for EACH offense. 

That is each person that cannot time shift a program!  If just one
broadcast that is viewed by millions of people does not provide the
ability for them to view that program at a later time then the penalties
should be somewhere in the range of hundreds of millions of dollars. 
That amount of money would make any greedy class action lawyer salivate
at the thought. 

Let's run through some numbers:  Imagine the Superbowl.  The last one
was viewed by 131,200,000 viewers (according to superbowl.com).  Now
imagine all of the interactive digital devices that must function
"reliably" that could be sitting in everybody's home.  There must be
thousands of different ones and many more versions of every one at
that.  The media circus is required not only to be able to work with
each of these devices in preventing piracy but more importantly NOT
prevent fair use.  I assume this also means that the live broadcast must
also work.  At this point I must start to guesstimate the numbers: my
apologies.  Assume 90% of the devices work perfectly; that still leaves
13,120,000 people that are going to get screwed in one way or another. 
Put another way that leaves over 13 million people that will have a
legal claim against someone for hosing their chance to view the
superbowl.  Let's assume that the bill carries a $100 fine for
noncompliance.  That leaves a 1.3 billion dollar liability bill that
someone is going to have to foot!  Just for good measure let's assume
that the pre-game and post-game shows use the same technology; that
kicks the bill up into the neighborhood of 3.9 billion. 

Are we having fun yet?  If not then lets throw in the suits from the
advertisers who are paying how many millions in advertising to reach the
stated audience.  If that audience is reduced by 10% don't you think
that there is a possibility that they will want a 10% refund?  Not to
mention that the offer could be construed as fraudulent. 

What about your local pub that is having a superbowl party, goes to
great expense buying new big screen high definition televisions, and
ends up with a room full of rowdy drunks that can't watch the program
that they got all lubricated to see.  Are the content owners responsible
for the ensuing chaos?  Now consider that one of those well lubricated
drivers goes flying across town to see the show at their house and has
an accident.  American jurisprudence is rife with attorneys going after
the people with the "deep pockets". 

I could go on and on but I trust that I have made my point.  Perhaps we
should take a page out of the book of congressional lobbying:  instead
of trying to stop the bill from passing in the first place we should
seek enough amendments to poison the bill for the sponsors!  I think
that I may have found a way to take the fair-use provisions seriously! 

I realize that this is probably fantasy; wouldn't it be fun though. 
This community has the resources to change the world; if we could just
unite!  Unfortunately the task is futile by definition. 

The best defense is most often a strong offense; since the courtroom is
to be the ultimate battleground let's get the best litigators we can
find.  If we started a legal fund and convinced every open source
afficionado to forgo the purchase of just one CD/DVD/Monopoly tax
payment and donate that to the legal fund then we could mount a
formidable challenge to their oligopoly. 

Best Regards, 
Tres Melton 


P.S. My preferred plans: 

CASE 1:

Imagine a class action suit against the studios for every US soldier
that lived overseas, purchased a DVD player, and purchased some movies.
According to intellectual property laws, as I understand them, there are
a few relevant facts worth mentioning.  Fact(1):  the said individual
has purchased the physical medium that contains the work of Intellectual
Property. Fact(2):  the said individual has purchased the legal rights
to listen/view/enjoy the contents of the aforementioned physical medium.
Fact(3):  the actual rights that were purchased have never been clearly
defined from either party's point of view.  Court case is as follows: 

Plaintiff John Doe and others seek judicial relief from the obligation
of repurchasing both things that were above described in statements one
and two.  John recently returned to the US and has found the following
facts to be true:  

1)  That the DVD player that this American Soldier purchased while on
active duty in Europe is incapable of playing DVDs that were legally
purchased in the United States after his return.  
2)  That the new player that his wife has for the bedroom is incapable
of playing the movies that this soldier, representing America in the
'War on Terrorism' while abroad, has purchased in a location other than
the United States.  
3) The Macrovision incorporated into both of the DVD players prevents
him from making copies on VHS tapes for viewing in other areas of the
home.

Plaintiff Doe recognizes the costs associated with manufacturing the
plastic cookie with the dimpled metal center and therefore agrees to pay
for the replacement costs of the physical medium.  However, since
plaintiff Doe has already purchased the pattern of dimpled bits -
otherwise known as the intellectual property - he should be under no
obligation to repurchase them.  Further plaintiff Doe should enjoy the
right to copy the DVDs to VHS form for his enjoyment in the children's
rec room.

CASE 2:

A law abiding citizen arrives home to find that is home, located in the
forests that are prone to fires, has burned to the ground.  Thinking
ahead the individual has video taped the contents of his home to prove
their existence to an insurance company of the need ever arises. 
Discovering that the homeowner has a limited policy on his audio/video
equipment and the media for its use the insurance carrier does not fully
reimburse the plaintiff in the case for his losses to his CD
collection.  A collection of approx. 500 CDs that has taken many years
and many thousands of dollars to accumulate.  The plaintiff realizes
that intellectual property cannot actually be destroyed and that it
still exists; he just no longer has access to it.  The plaintiff in this
case should be able to sue the recording industries into replacing the
contents of his collection for the cost of the physical medium alone. 
Why should he have to pay twice for the same intellectual property.

CASE 3:

The recoding industry finally comes out with an audio DVD format. 
Desiring the new format a consumer may want to replace his existing CD
collection with audio DVDs.  Once again the consumer has already
purchased the right to listen to the contents of the CDs in question so
why should he have to pay the same price for an audio DVD as someone who
never purchased the CD version.

CONCLUSION:

If we could force the content creators to define what percentage of the
price of an item is for the content (intellectual property) and what
percentage is for the medium upon which it was recorded then we will
have made great strides in reigning in these seriously over compensated
oligopolies.


Obviously these are fantasy cases; but fun to think about none the less!