David Wagner wrote:

You argue that it would be irrational for content companies to push to have DRM mandated. This is something we could debate at length, but we don't need to: rational or not, we already have evidence that content companies have pushed, and *are* pushing, for some kind of mandated DRM.

The Hollings bill was interesting not for its success or failure, but for what it reveals the content companies' agenda. It seems plausible that its supporters will be back next year with a "compromise" bill -- plausible enough that we'd better be prepared for such a circumstance.

The CBDTPA, available in text form at http://www.politechbot.com/docs/cbdtpa/hollings.s2048.032102.html, does not explicitly call for legislating DRM. In fact the bill is not very clear about what exactly it does require. Generally it calls for standards that satisfy subsections (d) and (e) of section 3. But (d) is just a list of generic good features: "(A) reliable; (B) renewable; (C) resistant to attack; (D) readily implemented; (E) modular; (F) applicable in multiple technology platforms; (G) extensible; (H) upgradable; (I) not cost prohibitive; and (2) any software portion of such standards is based on open source code." There's nothing in there about DRM or the analog hole specifically. In fact the only phrase in this list which would not be applicable to any generic software project is "resistant to attack". And (e) (misprinted as (c) in the document) is a consumer protection provision, calling for support of fair use and home taping of over the air broadcasts. Neither (d) nor (e) describes what exactly the CBDTPA is supposed to do. To understand what the technical standards are supposed to protect we have to look at section 2 of the bill, "Findings", which lays out the piracy problem as Hollings sees it and calls for government regulation and mandates for solutions. But even here, the wording is ambiguous and does not clearly call for mandating DRM. The structure of this section consists of a list of statements, followed by the phrase, "A solution to this problem is technologically feasible but will require government action, including a mandate to ensure its swift and ubiquitous adoption." This phrase appears at points 12, 15 and 19. The points leading up to #12 refer to the problems of over the air broadcasts being unencrypted, in contrast with pay cable and satellite systems. The points leading up to #15 talk about closing the analog hole. And the points leading up to #19 discuss file sharing and piracy. DRM is mentioned in point 5, in terms of it not working well, then the concept is discussed again in points 20-23, which are the last. None of these comments are followed by the magic phrase about requiring a government mandate. So if you look closely at how these points are laid out, and which ones get the call for government action, it appears that the main concerns which the CBDTPA is intended to address are (1) over the air broadcasts (via the BPDG standard); (2) closing the analog hole (via HDCP and similar); and (3) piracy via file sharing and P2P systems, which the media companies would undoubtedly like to see shut down but where they are unlikely to succeed. Although DRM is mentioned, there is no clear call to mandate support for DRM technology, particularly anything similar to Palladium or the TCPA, which is what we have been discussing. As pointed out earlier, this is logical, as legislating the TCPA would be both massively infeasible and also ultimately unhelpful to the goals of the content companies. They know they won't be able to use TCPA to shut down file sharing. The only way they could approach it using such a tool would be to have a law requiring a government stamp of approval on every piece of software that runs. Surely it will be clear to all reasonable men what a a non-starter that idea is.