Second Class Citizens

Perhaps the most striking thing about the Sensenbrenner bill is this passage:

PROFESSIONAL DEVICE.–(A) The term”professional device” means a device that is designed, manufactured, marketed, and intended for use by a person who regularly employs such a device for lawful business or industrial purposes, such as making, performing, displaying, distributing, or transmitting copies of audiovisual works on a commercial scale at the request of, or with the explicit permission of, the copyright owner.

(B) If a device is marketed to or is commonly purchased by persons other than those described in subparagraph (A), then such device shall not be considered to be a ”professional device”.

“Professional” devices, you see, are exempt from the restrictions that apply to all other audiovisual products. This raises some obvious questions: is it the responsibility of a “professional device” maker to ensure that too many “non-professionals” don’t purchase their product? If a company lowers its price too much, thereby allowing too many of the riffraff to buy it, does the company become guilty of distributing a piracy device? Perhaps the government needs to start issueing “video professional” licenses so we know who’s allowed to be part of this elite class?

I think this legislative strategy is extremely revealing. Clearly, Sensenbrenner’s Hollywood allies realized that all this copy-protection nonsense could cause problems for their own employees, who obviously need the unfettered ability to create, manipulate, and convert analog and digital content. This is quite a reasonable fear: if you require all devices to recognize and respect encoded copy-protection information, you might discover that content which you have a legitimate right to access has been locked out of reach by over-zealous hardware. But rather than taking that as a hint that there’s something wrong with the whole concept of legislatively-mandated copy-protection technology, Hollywood’s lobbyists took the easy way out: they got themselves exempted from the reach of the legislation.

This reminds me of nothing so much as the McCain-Feingold campaign finance law. McCain and Feingold, like Sensenbrenner, faced a difficult problem: a straightforward reading of their legislation, which prohibited people from spending large sums of money on political advocacy, would seem to prevent corporate entities like the New York Times and Fox News from talking about politics in the closing weeks of the election. Clearly, that wouldn’t do. But rather than taking this as evidence that there was something fundamentally wrong with their approach, they simply created a class of journalists to whom the rules did not apply. If Michael Moore wants to spend a million dollars promoting John Kerry’s election, that’s free speech. But if you or I spent a million dollars on anti-Bush ads in the closing weeks of the election, we could wind up in jail.

Like McCain and Feingold, Sensenbrenner demonstrates a profound contempt for ordinary Americans, whom his legislation literally makes second-class citizens. It seems that he can’t imagine that ordinary consumers might ever have legitimate reasons to use “professional” video editing tools for personal projects. Consumers, after all, are just that–passive recipients of the culture made for them by the professional magic-makers of Hollywood. We wouldn’t want the riffraff to make culture of their own.

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