12/16. Rep. James
Sensenbrenner (R-WI) and Rep. John
Conyers (D-MI) introduced
[35 pages in PDF], the "The Digital Transition Content Security Act of 2005".
This bill would regulate audio and video products and devices in a manner that may have
the effect of preventing copyrighted analog format content from being converted into
digital format, and then copied and distributed in violation of copyright law.
The bill would require, among other things, that certain video products and devices
incorporate Copy Generation Management System for Analog (CGMS-A) and Video Encoded
Invisible Light (VEIL) technologies.
Rep. Sensenbrenner is the Chairman of the
House Judiciary Committee (HJC). Rep.
Conyers is the ranking Democrat on the HJC.
(at right) stated in a
release [PDF] that "This legislation is designed to secure analog content from
theft that has been made easier as a result of the transition to digital
technologies. Although many of those who convert analog content into digital
form are not engaging in any illegal conduct, there are a good number of
criminals who take advantage of existing weaknesses in legislation and
technology to obtain copyrighted content and then redistribute for profit at the
copyright owner’s expense. This practice is nothing short of theft."
Rep. Conyers stated in the same release that "it is important that we protect
the content community from unfettered piracy. One aspect of that fight is making
sure that digital media do not lose their content protection simply because of
lapses in technology. This bill will help ensure that technology keeps pace with
This bill contains several prohibitions in its § 101.
First, it provides in § 101(1), subject to exceptions, that no person shall
"manufacture, import, offer to the public, provide or otherwise traffic in any --- (A)
analog video input device that converts into digital form an analog video signal that
is received in a covered format, or an analog video signal in a covered format
that is read from a prerecorded medium, unless any portions of that device that
are designed to access, record, or pass the content of the analog video signal
within that device --- (i) detect and respond to the rights signaling system
with respect to a particular work by conforming the copying and redistributing
of that work to the information contained in the rights signaling system for
that work in accordance with the compliance rules set forth in section 201 and
the robustness rules referred to in section 202; and (ii) pass through or
properly reinsert and update the CGMS-A portion of the rights signaling system
or coding and data pertaining to CGMS-A, and pass through the VEIL portion of
the rights signaling system, in accordance with such compliance rules and
Second, it provides, subject to exceptions, that no person shall
"manufacture, import, offer to the public, provide or otherwise traffic in any
--- (B) analog video input device that does not convert into digital form an
analog video signal that is received by that device in a covered format, or an
analog video signal in a covered format that is read from a prerecorded medium,
unless that device --- (i) preserves, passes through, or properly reinserts the CGMS-A
portion of the rights signaling system or coding and data pertaining to CGMS-A,
and passes through the VEIL portion of the rights signaling system, in
accordance with the compliance rules set forth in section 201 and the robustness
rules referred to in section 202; (ii) outputs the analog video signal in a
Third, it provides in § 101(2), subject to exceptions, that no person
shall "manufacture, import, offer to the public, provide, or otherwise traffic in
any technology, product, service, device, component, or part thereof, that --- (A) is
primarily designed or produced for the purpose of modifying or causing an analog video
input device to no longer conform to the requirements set forth in paragraph (1); (B)
has only limited commercially significant purpose or use other than to modify or cause
an analog video input device to no longer conform to the requirements set forth in
paragraph (1); or (C) is marketed by that person or another acting in concert with
that person with that person’s knowledge for use in modifying or causing an analog video
input device to no longer conform to the requirements set forth in paragraph (1)."
The bill would exempt from these requirements two classes of products and devices.
First, it would exempt a product or device that "was legally manufactured and
sold as new before the effective date of this title and is subsequently offered
for sale or otherwise trafficked in, if such product or device has not been
modified, after such effective date, so that the product, if in compliance with
section 101 before the modification, is configured so that the product or device
is no longer in compliance with that section".
Second, it would exempt "a device
capable solely of displaying programs and cannot be upgraded or readily modified
so as to incorporate transmission, redistribution, or recording capabilities."
The bill then provides in § 103 that "No person shall encode a program, or
cause a program to be encoded, using the rights signaling system", unless such
encoding meets several requirements. For example, "The rights signaling system
may be encoded so as to prevent or limit copying, redistribution, or both, of
prerecorded media, video on demand, pay-per-view, subscription-on-demand, and
undefined business models that are comparable to any such defined business
The bill also requires in § 104 that "Any person making a transmission of a
live event or an audiovisual work protected by copyright shall, upon the request
of an owner or authorized licensee of the live event or copyrighted work,
include in its transmission the rights signaling system for the transmission and
shall not, without the authorization of such owner or licensee, deactivate or
alter the rights signaling system."
The bill provides both civil and criminal remedies for violations of the
requirements contained in § 101 of the bill.
The bill does not identify which Title of the U.S. Code would be
amended by the bill. The bill contains no findings of fact, or statement of
The sponsors of this bill state that their purpose is to protect
analog content from digital piracy.
Some critics of the bill, such as the EFF, refer to proposals,
such as those contained in this bill, as technology mandates and lockware, and
argue that such proposals would enable copyright holders to control use of their
content, as well as restrict infringement.
Rep. Sensenbrenner has a record of introducing legislation, not
solely for the purpose of enacting it into law, but also for the purpose of
prodding interested parties into negotiations. Rep. Sensenbrenner stated
that "I urge all interested parties to continue to negotiate to see if a private
sector solution can be fully developed to secure analog content from theft. This
issue is simply too important for parties to avoid negotiations. Nonetheless, I
look forward to working on this legislation next year".
The bill assigns rulemaking authority to the
U.S. Patent and Trademark Office (USPTO), in
consultation with the Copyright Office
(CO). The USPTO has not publicly commented on this. However, the USPTO possesses
considerable expertise in patent and trademark matters, but not copyright. Moreover,
its expertise in new technologies relates to patenting, not regulating.
The Federal Communications
Commission (FCC) previously wrote broadcast flag rules, without an express
statutory grant of rulemaking authority from the Congress. The
U.S.Court of Appeals (DCCir)
overturned these rules. See, May 6, 2005,
opinion [34 pages in PDF] in American Library Association v. FCC.
The Congress has not since enacted legislation that confers such rulemaking
authority, although the Motion Picture
Association of America (MPAA) has lobbied for such legislation. See also,
titled "DC Circuit Reverses FCC's Broadcast Flag Rules" in TLJ Daily E-Mail
Alert No. 1,113, May 9, 2005.
Were the bill to give rulemaking authority to the FCC, that
would give the House Commerce
Committee (HCC) a claim to jurisdiction over the bill, and oversight over the
rulemaking process. The HCC in recent years has aggressively sought to expand
its turf to include intellectual property issues previously handled by the HJC.
Hence, by giving rulemaking authority to the USPTO, Rep. Sensenbrenner and Rep.
Conyers may seek to avoid HCC involvement. On the other hand,
they could have delegated rulemaking authority to the Library of Congress, or to
the Department of Justice, both of which have attorneys
with expertise in copyright law and new technologies.