A state bill reminiscent of the controversial Digital Millennium Copyright Act may be coming soon to a legislature near you. That is, if it hasn't arrived already.
Nearly five years after the federal government enacted the DMCA (a law that makes it a crime to circumvent security protections on copyrighted materials) legislators in several states are proposing bills that place restrictions on devices that aid in copyright infringement. In some cases, those laws are passing.
Opponents, who include a vociferous contingent of digital rights groups, have dubbed them "super-DMCAs." The state bills are backed by the Motion Picture Association of America, which rejects the comparison.
"These are amendments to existing communications or cable theft laws," said Van Stevenson, vice president of state legislative affairs for the MPAA. "They have nothing to do with the DMCA."
Draft legislation supported by the MPAA -- which closely resembles the bills pending in several states -- calls for criminal charges against individuals who provide or employ devices "with the intent to defraud a communication service provider." Violators would face misdemeanor or felony charges, depending on the seriousness of the infringement.
While the MPAA has gained support from state legislators, several digital rights groups are actively opposing the passage of pending bills, saying they could outlaw useful devices merely on the grounds that they might be used for illicit purposes.
"Basically, it lays out a scheme under which if you attach an unauthorized device to the cable network, or the telecom network, suddenly you are not merely in violation of your contract, you're also at risk of felony liability," said Mike Godwin, technology counsel at the legal policy group Public Knowledge.
Godwin said he is fearful that the statutes proposed in several states would criminalize a practice like viewing television programs on a computer, something he does frequently.
According to the Electronic Frontier Foundation, seven legislatures, including Colorado, Delaware, Illinois, Michigan, Oregon, Pennsylvania and Wyoming, have already passed so-called super-DMCA bills.
Similar proposals are on the table in Arkansas, Florida, Georgia, Massachusetts, Oregon, Tennessee and Texas. On Tuesday, the judiciary committee of the Tennessee Senate considered one version of the proposed legislation (PDF), but opted to delay voting on the measure.
By and large, the state bills don't lay out specific devices that would be deemed illegal. Most follow along the lines of the proposed Tennessee statute, which would criminalize "any communication device which is connected in such a manner that would permit the unauthorized receipt, interception, acquisition, description, transmission or re-transmission of a communication service."
The MPAA's Stevenson said such laws are needed because existing communications or cable theft laws don't necessarily cover new technologies, many of them Internet-based, that can be used for illicit purposes.
But Godwin says the MPAA's push for new legislation is premature. Theft of digital video content is not widespread in the United States, he said, and has not visibly hurt box office profits.
John Palfrey, director of the Berkman Center for Internet & Society at Harvard Law School, says many of the crimes addressed in the proposed state bills are already illegal under existing statutes.
During a state legislature hearing in Massachusetts earlier this month, Palfrey spoke out against an MPAA-backed proposal on the grounds that it could criminalize legitimate research.
As for the bills' aim to prevent theft, Palfrey said, "There are already lots of laws that say you can't steal."
