Dear Judiciary Committee Member:
I am a supporter of Tennessee Digital Freedom and I am opposed to Senate Bill 3101 and House Bill 3391.
In their current form, these bills have several serious technical and constitutional flaws and could result in severe unintended consequences for the state of Tennessee. While they purport to only update Tennessee laws prohibiting theft of communications services, they in fact create a state-wide pseudo-copyright system, blurring the line between communication signals and copyright content. These bills originated from a bill drafted by the Motion Picture Association of America and sponsored by Senator Curtis Person and Representative Rob Briley. Though the bill has been modified throughout the legislative process, it unfortunately retains its focus on extending statewide copyright protection to communications content.
However, the state is pre-empted from creating rights which are equal to or equivalent to federal copyright protections. Section 301 of the 1976 Copyright Act provides that ?all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright...are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.? The House Report on Section 301 of the 1976 Copyright Act clarified that ?[t]he declaration of this principle in section 301 is intended to be stated in the clearest and most unequivocal language possible, so as to foreclose any conceivable misinterpretation of its unqualified intention that Congress shall act preemptively, and to avoid the development of any vague borderline areas between State and Federal protection.?
The sponsors of these bills have been made aware repeatedly of this federal pre-emption issue, but have attempted to amend or ameliorate the conflict by adding an amendment to the bills which clarifies that where the bills conflict with federal law, the state law is unenforceable. Unfortunately, merely acknowledging the conflict and acknowledging that federal law pre-empts these bills does not provide any clarification to the general public, who are threatened by civil and criminal penalties for violation of these proposed statutes.
The bills are also unnecessarily restrictive on interstate commerce, subjecting manufacturers and retailers to potential civil and criminal liability for the sale of legal devices if a communication service provider alleges that they had the improper ?intent? in doing so. On this basis, the Consumer Electronics Association, Consumer Electronics Retailers Association, as well as their members Radio Shack and Phillips Electronics, have come to Tennessee to oppose passage of this legislation. Unfortunately, potential defendants are under strong pressure to settle civil lawsuits because the proposed statutes would allow a civil litigant to seek statutory damages of $50,000.00 per device for each violation, although the device in question may be legally protected under federal copyright law. Retailers may also be charged in the state of Tennessee with a Class D misdemeanor for the sale of legal and federally protected devices. The effect this bill will have on the Tennessee economy is unforeseeable, but it will clearly send a signal to the business community that Tennessee is not friendly to technology and not friendly to innovation. This signal will hinder the ability of the state to attract new jobs and opportunities to the state, all to protect an industry which is already protected by federal copyright laws.
In their efforts to expand the state?s current laws on communications theft and incorporate newly developed technologies, the bills take a misguided approach in extending the scope of the law to technologies which have not yet been developed. This is an irresponsible approach to take when drafting laws relating to as-yet undeveloped technologies. One hundred years ago, Tennessee legislators likely did not foresee the development of personal computers and personal cell phones. Broad, restrictive technology law such as this will merely encourage innovation to occur in other states, where innovators would not be subject to potential criminal or civil liability because their unforeseen paths of development conflict with these overbroad pieces of legislation.
The bills also prohibit the disclosure of ?plans or instructions? for the creation of currently legal devices if the party disclosing the information has an improper ?intent? according to a communications service provider. This has led universities and the American Librarians Association to oppose passage of this legislation because enforcement could potentially subject college engineering professors and reference librarians to criminal liability for providing legal information to others. These bills could also subject civil or criminal liability upon patent attornies, who must disclose the function of innovative technologies in applications to the US Patent and Trademark Office, which information will in turn be published by the federal government for public inspection. These bills, in their current form, allow for the civil and criminal punishment of the truth!
Throughout the legislative process, the Tennessee Digital Freedom organization has attempted to raise these issues to the attention of the legislature, but has received little or no heed at all. The Tennessee Digital Freedom organization is composed of technologists, engineers, and concerned citizens throughout the state of Tennessee. In the face of this risk to personal freedoms and potential harm to the Tennessee economy, these individuals have come together to coordinate opposition to these bills for over a year. TNDF has offered its expertise to the legislature, in an effort to draft a communications theft bill which is both technically accurate, but also within the proper boundaries of state and federal intellectual property law. Since their formation, the Tennessee Digital Freedom organization has received the support and encouragement of the CEA, CERC, ALA, Vanderbilt University, and other organizations, for which they are very thankful.
In an effort to help protect communications service providers from the unlawful signal theft which is the driving force behind this legislation, the Tennessee Digital Freedom organization has drafted and distributed its own suggested amendments to the current bills. These amendments avoid conflicts with federal copyright law, create no obstacles to interstate commerce, and will have no chilling effect on the free speech of academics and entrepreneurs. The TNDF amendment will redefine Tennessee law communications theft laws to incorporate newly developed technologies, without hindering the development of new and innovative technologies. The TNDF amendment also sends a signal to the tech business community, that Tennessee is not a servant to Hollywood special interest and that Tennessee understands that it is important to create an environment where entrepreneurs and visionaries can succeed, prosper, and spread that prosperity to their communities.
The Tennessee Digital Freedom amendments may be found at the following link (
http://tndf.net/tndf/documents/TNDF_Proposed_Bill.pdf) and you can find more information about Tennessee Digital Freedom and their members at
http://www.tndf.net.
Please oppose SB3101 and HB3391 and support the TNDF amendment, for the sake of the people of Tennessee. Thank you.
Sincerely,
A Concerned Citizen
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