Levies
Sometimes copyright law requires levies, or taxes, on a particular technology in order to compensate copyright holders for infringement which is likely to occur using that technology and which (it's argued) is impossible or impractical to regulate any other way. Often, this approach is coupled with a compulsory license, or a rule saying that certain kinds of copying or other activity using equipment or media on which a levy has been paid will not be copyright infringement -- because copyright holders have already been compensated by the levy for that activity.
The most standard U.S. example is the Audio Home Recording Act, which provides for levies on certain technologies (defined as "Digital Audio Recording Media" (DARM) and "Digital Audio Recording Device" (DARD)); there is a corresponding rule that, roughly, the use of these technologies for home recording of copyrighted musical works is not an infringement of copyright. (That was likely true anyway under pre-existing copyright law, but AHRA at least clarifies this so people can have some certainty about it.)
I have right here a DARM on which I paid a levy (or at least on which somebody paid a levy, and the cost was certainly passed along to me) -- an MPO MiniDisc, which amusing advertises "Extra High Digital Grade" (as opposed to that low-quality digital recording regular MiniDiscs offer?).
These levies are unfair, because they punish everyone for some people's copyright infringement (and, in some sense, they punish all people who commit less-than-average amounts of copyright infringement as though they had committed an average amount of copyright infringement). In some cases, there might be no way to get out of a levy even by showing that a technology would be used for a strictly non-infringing purpose.
However, levies are an extremely interesting proposal to consider in contradistinction to harsh technology regulatory regimes advocated by some copyright holders. As most readers of this diary will be aware, some copyright holders have been advocating for years that technology which can likely be used to infringe copyrights (or which turn out to be used frequently to infringe copyrights) should be banned -- or be required by law to be redesigned in a way which would make them less useful for copyright infringement. (The part you don't hear about is that this always ends up making them less useful for other things, too.)
Those proposals are a particularly terrible thing,
I think the levy approach is inherently far less restrictive, because a levy need not be combined with a technology design mandate. (The AHRA levy was -- it's called SCMS, or Serial Copy Management System. SCMS has led to a pretty substantial dissatisfaction with AHRA-regulated DARMs.) You can say that something is subject to a tax without saying that it's illegal to sell it. And then people who want that thing can still purchase it, by paying the tax.
Under a mandate law like the CBDTPA, or other mandates like the broadcast flag mandate, the most functional technology, which I want most and which I think most technology users want most, is not legally available at any price. You can't say "Not only will I not infringe copyrights but I will pay the copyright industries $5,000 to compensate them for the infringement which they believe I will commit because they don't trust me"; no, there's no provision for doing that.
(The DMCA is the same way, even though the electronics industry doesn't call it a "mandate" because they haven't quite realized that trying to interoperate with something, or modify something, without permission from its manufacturer is virtuous and not vicious. Although maybe they're getting there [see "Oops"].)
European electronics industries are suggesting exactly the reverse, that DRM is better than levies. (To be fair, they're not necessarily facing legislative design mandates as urgently as are U.S. industries, so the "alternative" to levies which threatens the electronics industries there may be a simple boycott by the entertainment companies, and not legislative controls.)
I think this is silly when the alternative is a government technology mandate. In the DRM scenario, your equipment is broken and doesn't do what you want, and, if the DRM vendor has done a good job, you can't fix it. That's true whether the impetus for the DRM came from a mandate or from a desire to make publishers feel comfortable. In the levy scenario, you have to pay extra because you're being punished for someone else's infringing activity (or for your own infringing activity, if you are actually an infringer).
In the levy version, though, you have a choice about what to buy; you can buy regular fully-functional unrestricted equipment. There is still competition and there is still the possibility of getting technology which is user-serviceable (if the levy is unaccompanied by a "robustness" mandate). There is still the possibility of not having someone else decide which uses you can make, which attempts at interoperability will actually interoperate, which software you can write, etc. (Note to trusted computing advocates: I realize that you can write arbitrary software in a trusted computing environment. On the other hand, you couldn't necessarily write an arbitrary media player, not because you can't write the player itself but because you can't get your media in cleartext form into the particular virtual machine where your arbitrary media player is running.)
When I mentioned levies to some entertainment lawyers at BPDG, they tended to repeat the argument that levies are unfair, because you're being punished for what someone else is doing. I didn't know what to say. I wanted to say that the entire BPDG process, from beginning to end, was about punishing people for what someone else was doing. (Losing capabilities you otherwise would have had, against your will, is a punishment, isn't it?)
I can't understand how entertainment lawyers who are busy advocating for you not to be able to buy particular technologies at all think that it would be "unfair" for you instead to be taxed if you buy those technologies. Who's constraining consumer choice more here?
- Status quo. DRM equipment: legal, no tax. Non-DRM equipment: legal, no tax (except AHRA, DMCA, etc.).
- Mandate version. DRM equipment: legal, no tax. Non-DRM equipment: illegal.
- Levy version. DRM equipment: legal, no tax. Non-DRM equipment: legal, with a tax levied upon purchase.
If you used an international trade analogy, you could imagine advocates of banning something responding to a proposal to tax imports of it instead: "But tarriffs are unfair!". Granted.
Again, perhaps EICTA and other levy opponents who are DRM proponents are imagining a world in which DRM and non-DRM technologies compete freely (although I think really free competition would require obliterating anticircumvention rules). And in that vision, perhaps some publishers are distributing things in an encrypted form which they expect will work only with the DRM equipment.
So perhaps that's an artifact of a European climate in which levies are seen as a real political threat and tech mandates aren't.
