• United States

MPAA’s drive for state laws hits bump in Massachusetts

Apr 02, 20037 mins

Software engineers, academics and industry representatives gathered at the Massachusetts State House on Wednesday to voice their opposition to an effort by the Motion Picture Association of America (MPAA) to rewrite provisions of state telecommunication laws.

The hearing, to discuss a bill backed by the MPAA, is evidence of growing grassroots and industry opposition to the MPAA’s state-level legislative initiative, which has already amended laws in five states.

The proposed legislation, Massachusetts House Bill 2743, would change elements of the Massachusetts General Laws covering telecommunications fraud, broadening the scope of activities that qualify as criminal offenses under the law and proposing stiff penalties and fines for law breakers.

The Massachusetts legislation uses language provided by the MPAA, according to Angela McConney, legal counsel for the Massachusetts House Committee on Criminal Justice.

That language is almost identical to the language found in similar bills that are pending in a number of states including Texas, Tennessee, Colorado, and Florida. The bills are part of an effort by the MPAA to strengthen telecommunications theft laws in the states, according to Vans Stevenson, senior vice president of state legislative affairs at the MPAA.

“This legislation is designed to update existing telecommunications statutes on the books in (Massachusetts) and most states that were passed twenty-some years ago,” Stevenson said.

While updating legal language to account for the explosion in technology in communications services and technology, the state level laws will also make it easier for the MPAA and others to pursue cases against criminals, he said.

Wronged parties would not have to rely on the Department of Justice and the protections offered under the 1998 Digital Millennium Copyright Act (DMCA) to pursue cases, Stevenson said.

However, the broad wording of the bill is rubbing many in the information technology and telecommunications industries the wrong way, according to Sarah Deutsch, vice president and associate general counsel at Verizon.

Initially perceived by the telecommunications industry as a communications theft bill, the MPAA-sponsored legislation at first received little attention, Deutsch said. However, industry organizations are increasingly alarmed about some of the broad implications of the MPAA-sponsored bills.

Among other things, the MPAA legislation broadens the definition of the term “communications service” to include both the content transmitted — for example, downloaded song files — and the medium over which they were transmitted.

“This is really a theft-of-copyright bill and a piracy bill,” Deutsch said.

Those kinds of copyright protections were already hammered out by the federal government, copyright owners and other stakeholders in the DMCA, which includes protections for Internet service providers such as Verizon, according to Deutsch.

The MPAA laws are effectively end runs around the DMCA that include no immunity for ISPs, she said.

Grassroots opposition to the MPAA-sponsored legislation is also growing, due in part to the efforts of Edward Felten, a professor of computer science at Princeton University.

Through his Web site, Felten and others have kept up a steady drum beat of commentary on the perceived dangers of the MPAA-sponsored state legislation.

Felten alleged that, as written, House Bill 2743 and others like it would outlaw commonly used security tools such as firewalls and VPN software by declaring the encryption, decryption or concealment of the “place of origin” of any communication to be illegal.

Those arguments are disputed by the MPAA’s Stevenson, who noted that language that outlaws the concealment of the “place of origin” of communication has long been on the books in Massachusetts.

Nevertheless, the arguments have raised the eyebrows of some within theIT community in recent days, spawning at least one news story on the possible implications of the MPAA’s state-level initiative.

The increased attention to the MPAA’s efforts was evident on Wednesday, when representatives from the MPAA, the electronics industry, software engineers and academics crowded a hearing room in the Massachusetts State House to voice their opinions on House Bill 2743.

Speaking before the Joint Committee on Criminal Justice, Amy Isbell, vice president of state legislative affairs at the MPAA, began by acknowledging opposition to the wording of the bill and offering to compromise.

MPAA staff in Washington, D.C., were in the process of meeting with stake holders including ISPs to draft amendments to the wording of the legislation, Isbell said.

“We are looking forward to introducing amendments to keep this legislation alive and address any concerns,” she said.

Isbell was followed by a number of software and security experts opposed to the MPAA legislation, including independent software developers and a representative from the Free Software Foundation.

Software developer and security researcher Roger Dingledine told the Committee that the proposed legislation would make illegal software he designed to help Web browsers protect their personal information from being captured by online marketing companies such as DoubleClick.

Perhaps the most forceful opposition to the legislation came from John Palfrey, executive director of The Berkman Center for Internet & Society at Harvard University.

Calling House Bill 2743 a “bad idea,” Palfrey attacked the proposed changes as unnecessary special interest legislation that was not in the broad interests of the state’s residents.

Laws were already on the books that made computer hacking a crime and allowed law enforcement to pursue telecommunications crimes. Instead of helping in those efforts, the MPAA legislation would create even more confusion in the already muddy arena of Internet law, with unknown consequences, Palfrey said.

“I have no idea how far (House Bill 2743) would reach, but I know it would reach far,” he said.

The presence of so many technology experts, many sporting ponytails with their jackets and ties, caught the attention of Committee members.

State Representative Reed Hillman asked Isbell whether a router that he uses to connect four home computers to a single broadband Internet connection would be a violation under the new law.

Isbell said that it would not, but that an amendment would be included to clarify the issue.

Later, State Representative David Linsky wondered whether new criminal statutes were even necessary.

“Are there cases out there that can’t be prosecuted under current law?” Linsky asked.

Despite the reservations of legislators and the impassioned pleas from Internet denizens, the MPAA’s biggest challenge may be overcoming a swell of opposition from companies like Verizon as well as industry groups.

Speaking at the State House hearing Wednesday on behalf of the American Electronics Association (AEA), Tara O’Donnell from the law firm of Donoghue Barrett & Signal P.C. voiced “grave concern over the broadness of the bill’s language.”

The AEA was worried that, as written, the law would “criminalize computers” and potentially hold manufacturers liable if their products were used to commit crimes, according to Marc-Anthony Signorino, technology policy counsel at the AEA.

Verizon also submitted comments to the Committee opposing House Bill 2743, according to Deutsch.

Verizon said that, as written, House Bill 2743 is too broad and treads on ground currently covered by the DMCA. Verizon encouraged Massachusetts legislators to take more time to study the bill carefully, she said.

The push back from other industry players may be a sign that the MPAA’s aggressive efforts to strengthen copyright protections at the federal and state level are wearing the patience of other stakeholders in the sphere of digital communications and commerce.

As a telecommunications company, Verizon is comfortable with Massachusetts telecommunications fraud laws as they are currently written, according to Deutsch.

“The MPAA is the organization that is pushing the laws in all these states. They’re spearheading this, and it’s primarily for their benefit and to address their privacy and copyright agenda,” Deutsch said.

That sentiment, along with those expressed at the Wednesday hearing, does not bode well for the future of the MPAA legislation in Massachusetts, according to one software industry expert in attendance.

“When you’ve got Verizon, the American Electronics Association, Harvard Law School and the ponytail gang all against you, then you’ve got a problem,” he said.