- The Washington Times - Thursday, January 16, 2003

As technologies improve, laws have to change as governments try to control their effects. This is necessary and mostly isn't nefarious. Do we want human cloning or don't we? How, when and where? If the technology exists, people have to decide what to do with it. This is probably reasonable and certainly unavoidable.
Some of the electronic technologies are a bit different. At the moment, huge financial interests are trying to have the public regulated in ways arguably not desirable, and they are doing it pretty much in the journalistic shadows.
For example, the firm SONICblue Inc. makes a gadget called ReplayTV, which amounts to a sophisticated digital VCR. It allows people easily to record television shows for later viewing, to e-mail them and, horror of horrors, to skip commercials. The entertainment industry is demanding that sales of ReplayTV be prohibited because people won't watch commercials if they can avoid it.
Whether the TV industry can force you to suffer through commercials is being decided in a lawsuit.
Another interesting case involves copyright protection on DVD movies. As most people know, you can buy movies on DVD discs and, for example, watch them on a laptop computer while flying. To protect the contents, the movie people invented a content-scrambling system, which encrypts the movie so that only people who paid for it can watch it.
Sounds reasonable. If Hollywood makes a movie, it ought to be able to prevent illegal reproduction. Except
Two problems arose with CSS, both born of the very nature of digital technology. First, if your computer ran Linux, an operating system increasingly popular among the computer literate, you couldn't watch the movie you had just bought. This struck many as outrageous: If you shelled out for a DVD of "L.A. Confidential," you ought to be able to watch your movie on any machine you chose.
So in October 1999, a 15-year-old kid in Norway, Jon Johansen, posted on the Internet a program called DeCSS, which unscrambled movies. Oops. Now anyone could watch it without paying for it. The movie folk, somewhat understandably, went crazy and filed suits to prevent publication of the DeCSS code on the Internet. It became illegal even to link to sites containing DeCSS.
The effect was to criminalize the provision of information. If I tell you that there is a drug market at 14th and Z streets, I am not a criminal for so doing. If I tell you that DeCSS is available at www.wherever.com, I am.
Second, there was, and is, the question of enforceability. Granting that MGM ought to be able to protect its copyright, is it possible in a digital age? DeCSS is a small file. It is easy to download. Search on "DeCSS download" and you find pages and pages of links. Even if all these sites could be shut down, the code could easily be e-mailed from one kid to another.
Here we come to the crucial point: The easier it is to distribute forbidden information, the more draconian must be the means of stopping the distribution. Distribution on the Internet is incredibly easy, so laws policing it would have to be incredibly intrusive.
To prevent your teenager from passing around DeCSS (or music) by e-mail or otherwise on the Internet, the federal government would have to inspect all e-mail. If young Bobby then chose to encrypt the file, the government would then have to either prohibit encryption or try to decrypt all encrypted traffic. If downloading music is a criminal offense, then most of our adolescent children are criminals, and prosecutable.
These court cases, most of them little known, are determining major questions regarding usage of the Internet and the amount of governmental surveillance we want to tolerate for the benefit of a particular industry.

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