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US Senator Joseph Biden (Democrat, Delaware) has proposed an amendment to existing US law which will create criminal penalties for counterfeiting so-called 'authentication features' related to software, digital movies and audio content.

Current law under Title 18, Section 2318 criminalizes the counterfeiting of packaging materials and logos, but the Biden amendment, we're told, merely adds such items as holograms to the list. And if that were the case, we'd have little to criticize here, in spite of the suspicious facts that Senator Fritz 'Hollywood' Hollings (Democrat, South Carolina) is a co-sponsor of the bill, and Microsoft Corporation heartily approves of it.

But of course with connections like those, it really couldn't be a straight-up piece of fair legislation, now could it?

And it isn't quite. Either it's well-intentioned but naively crafted, or it's a legislative Trojan horse of the sort our copyright industry lobbyists excel in writing. The problem is in the definition of 'authentication feature'.

"The term 'authentication feature' means any hologram, watermark, certification, symbol, code, image, sequence of numbers or letters, or other physical feature that either individually or in combination with another feature is used by the respective copyright owner to verify that a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, or documentation or packaging is not counterfeit or otherwise infringing of any copyright."

The word "verify," which means, among other things, 'to confirm' and 'to ensure', presents a bit of a problem. It's certainly not in the consumer's interests to suggest in federal law that the copyright industry has a mandate to confirm the validity of copyrights attaching to consumer products.

Verification implies a right of access. For DVDs, say, it could mean a DVD player 'phoning home' with the status of the 'authentication features' embedded in a disk it happens to be playing. The same could be done with software. The technology needed for remote 'authenticity verification' in digital media of all sorts has existed for quite some time, as does nearly all the required infrastructure -- and the software and entertainment industries are straining to put them to wholesale use.

So it really comes down to a single word: verify. Substitute words that wouldn't worry me would be "guarantee", or "assure" -- which 'verify' can in fact mean. It's just that it hasn't got to.

Few would argue that a copyright holder hasn't got a legitimate interest in prosecuting those who fabricate counterfeit copy-protection emblems to go with their knock-off products, thereby making them look more convincing. And this is the amendment's stated goal, according to Biden's speech on the Senate floor and according to his press release.

So then why choose a word like 'verify', which has a troublingly flexible meaning in this context, when one could as easily have chosen the words 'assure' or 'guarantee', which don't?

Well, because ambiguity is what lobbyists get paid to introduce into legislation whenever it might increase the scope of a law in their favor. On the other hand, these same Sophists can tie up a Congressional measure for ages sniffing out industry-restrictive language and stripping it down to the narrowest meaning conceivable.

It's not quite a license for the Business Software Alliance (BSA) and the Recording Industry Ass. of America (RIAA) and the Motion Picture Ass. of America (MPAA) to start kicking doors on private citizens, but we know it's only a matter of time before Congress foolishly awards them one. A few more innocuous slips like this one and they'll be handing out the brown shirts soon enough. ®

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