CEA’s ”Theft of Service’ bill fact sheet

The Consumer Electronics Association (CEA) today released the following fact sheet in order to clarify recent misinformation from the Motion Picture Association of America (MPAA) regarding its “modelstate communications security legislation.”

‘Theft of Service’s Bill Fact Sheet

Yesterday the MPAA attempted to defend its model state “theft of services” law with the following “assurances”:

The [model bill] is exclusively about stealing communications services. The legislation only provides for criminal and civil remedies if an individual steals a service offered for a fee, and expands the criminalization of electronic devices and software – beyond already outlawed illegal cable television devices, if such a device was specifically designed, distributed and marketed to steal communications services.

This statement provides only cold comfort to consumers, retailers and innovators.

First, what MPAA doesn’t say is that they have advocated an expansive definition of “stealing” that encompasses many legitimate consumer practices and expectations.

In a recent interview, the President and CEO of MPAA even stated that “Fair use is not a law…in the digital world; we don’t need back ups, because a digital copy never wears out.” Given MPAA’s views, it should be no surprise that their model legislation could criminalize normal fair use practices and subject honest consumers to massive civil liability.

Second, this over-reaching bill is in no way confined to “stealing”, even as broadly defined by the MPAA. The vast litany of prohibited actions includes receiving, acquiring, transmitting, possessing, retransmitting, manufacturing, distributing, developing, assembling, transferring, importing, offering and advertising, and even includes possessing plans or instructions, as well as assisting others in any of those acts.

Among the specific anti-consumer provisions are as follows:

* The bill has an undefined “intent to defraud” provision on which much of the “theft” limitation depends. Yet, many states have doctrines of “constructive fraud” which allow proof, even in criminal cases, with no showing of actual “intent” at all. Under such an interpretation, a consumer who attaches legal products to a broadband network could be subject to criminal penalties if the device is prohibited or not specifically permitted by the service contract.

* The bill addresses consumer acts pertaining to “transmission” and “retransmission,” which may occur after the content has been lawfully received by a consumer, yet would still be criminalized. This would make illegal certain “fair use” practices such as a consumer emailing a television program to himself or a family member.

* The bill is so extreme as to define devices possessed by one individual as “unlawful” based solely on subsequent usage by another individual. In other words, if a product is used by even one person to infringe, any other consumer or retailer in possession of that product could be subject to criminal penalties. These unknowing parties would then have to defend against criminal charges based on their “intent” as imputed by their mere possession or marketing of the products.

* The bill also would impose Draconian civil and criminal penalties that are potentially vastly disproportionate to the conduct of the person charged with its violations. Indeed, the inclusion of potentially massive civil liability has not existed in theft of services law prior to MPAA’s model bill. It appears the real intent is to intimidate and sue anyone who makes, sells or uses any product that the MPAA or other content providers do not like or approve of. The impact will be anti-consumer, anti-competitive and anti-innovation.

Having been rightfully denied anti-consumer legislation of this sort by Congress, MPAA has switched tactics in an attempt to convince state legislatures to turn honest consumers, retailers and manufacturers into criminal and civil defendants.

Along with a wide range of consumer, retailer and technology groups, CEA urges state lawmakers to reject this ill-considered legislation in order to protect consumers, technology manufacturers, retailers, and their states’ digital economies.