Story: The tech exec who broke federal law (and why the law is broken)

The following story recounts how the vice president of Intel Corp. violated the Digital Millennium Copyright Act (DMCA) without realizing it — by making a home movie of his son playing Pop Warner football and incorporating snippets of a Hollywood movie. (I took the above photo of Donald S. Whiteside at Digital Hollywood 2002 in Beverly Hills.)

Excerpted from chapter 7 (A Nation of Digital Felons) of Darknet: Hollywood's War Against the Digital Generation. This is another in a series of excerpts from the book, along with new material, appearing every Monday for the next several weeks.

Driving to Intel’s new research lab at the University of Washington at daybreak on April 3, 2002, Donald S. Whiteside drank in the spectacular Seattle morning. The sun glinted off Elliot Bay, the Cascades gleamed in the distance.

Newly minted the year before as vice president in charge of Intel’s broadband and content program, Whiteside was one of the executive team’s stars. Whether facing hostile congressmen on Capitol Hill or meeting with Hollywood executives in swank corporate high-rises, he cut a dashing figure. Tall, ruddy-skinned, and imposing, with silvery hair and sculpted features, Whiteside had quickly become one of the leading figures in the digital rights wars because of Intel’s vast influence in the technology world. Computers made with Intel’s chips are changing modern life more than any other product. The Microsoft-Intel alliance, dubbed Wintel, powers more than nine of every ten personal computers.

With $27 billion in annual sales and sixty thousand employees, Intel was the only company with representatives on both the 4C and 5C industry groups, which hammer out the technology rules for recording and networking media throughout a house or a business.

On this particular morning, a congressional fact-finding delegation was convening at the Intel lab, followed by trips to Amazon and Microsoft. For the twenty or so senior and midlevel staffers from the House Judiciary Committee, Senate Commerce Committee, and other key panels, the trip was more than a junket to the nation’s java capital. It was an opportunity to press the message that Washington was unhappy with the pace of progress by the high-tech sector in protecting movies and music from Internet piracy.

The aides, whose philosophical outlook cut a wide ideological swatch across both political parties, were not of a single mind on the torturously complex subject of copyright law. But many held the view that high tech’s potentates possessed a technological silver bullet that could solve the problem of Internet piracy once and for all. At the very least, the technowizards could certainly come up with a solution if forced. Perhaps they needed a nudge from Washington. Many of the assembled staffers on that spring morning seemed to believe that Washington probably would have to intervene in some way to sort out this mess.

If hubris flowed like wine, the Seattle region’s vintners would have faced serious competition from this strutting little delegation.

Whiteside parked his rental sedan and greeted his guests in the lab’s largest conference room. No reporters were present, so the give and take could be frank and forthright. Whiteside fired up his laptop as a lab employee connected it to a projection screen for a presentation of PowerPoint slides. Whiteside, who flew in from Phoenix, apologized for his less-than-dapper appearance: the airline had lost his luggage, and he could rustle up only an ill-fitting shirt this early in the morning.

Whiteside quickly launched into a slide show for the aides and a few interns lurking in the wings. He was an articulate evangelist for Intel’s vision of the networked home. While industry titans like Bill Gates and Steve Jobs sometimes seemed a bit out there, preaching about smart homes and the Web lifestyle and pervasive computing that would reach into every crevice of our lives, Whiteside tended to bring the discussion down to earth, talking about the technological forces and business imperatives that were driving the digital revolution. The trend lines were unmistakable: the networked home was very real and quickly becoming an integral part of middle-class America.

The aides, serious men and women in their twenties to forties, seemed caught up by Whiteside’s click-and-tell. He briefly recounted the evolution of personal computing. The era of stand-alone boxes was ending, he told his audience. We’re now at the dawn of a new phase of the computer revolution. Whiteside called this “the era of the extended wireless PC.” That was one way to frame the discussion, although the PC was only one component of this new era of connectivity. (Bill Gates calls this “seamless computing.” I’d argue that a better term would be “personal media networks.”) By whatever name, these are the connections that are making all our high-tech stuff talk to each other.

This trend will touch all of us in profound ways. Forget the nonsense you may have heard about the digital home. It’s not about walking into a room and having the network flick on the lights, turn on the stereo, and mix you a martini. It’s not about your smart refrigerator ordering milk when you’re a quart low. It’s about new ways to share and exploit personal media—bringing digital music, photos, television, movies, voice, and audio together in an intelligent way so that content and communication can flow instantly from one device to another in the universal language of 0’s and 1’s. Home networks will let you capture a movie or show from the Web or your cable system and zip it wirelessly to let you watch it on the TV in your living room, in your car, or on your boat. Stream music from your PC to the high-fidelity speakers in the family room. Show your latest family photos in a slide show on your TV set. We will bank, learn to cook, and consult with doctors over the network. We’ll look in on loved ones when we’re at work.

And we will do countless other things no one has thought of yet.

The rudimentary plumbing for this network has already begun to appear in the homes of early adopters. Hundreds of thousands of people have networked their televisions to stream recorded programming from the digital box in one room to another room. Tens of millions have bought TV tuner cards, letting viewers watch television on their computers. Others are taking the MP3 music files on their computers and playing them on their home entertainment systems. Further out, engineers at Intel were working on an ultrasmall “silicon radio” that would be embedded in the corner of every one of the billions of chips it makes as part of this wireless hive. It was all about connections.
The tech industry, mired in the worst downturn in its history, had risen up as one to embrace the idea that its salvation lay in the converged, connected, networked home. Plans were formulated, industry standards were set, and now came the job of making the vision a reality—rolling it out in a way simple enough for customers to use without getting a graduate degree from MIT. (The Yankee Group reports that 30 percent of all home networking products sold are returned because the buyer can’t get them to work. It’s hard to make this stuff simple, but techies need to get serious about making this their top priority.)

It turns out, however, that the most maddeningly difficult part of this new wireless bazaar was not about how to get everyone connected. The hardest part was figuring out how to allow some connections but prevent others. Two reasons for this: you and I don’t want our private information—about health, money, shopping habits, political beliefs—to seep out into the digital ether. Tech gurus were tackling the problem, figuring out how a conversation could take place through the air between your PC and your television set fifty feet away, but sealing it off from your neighbor or a stranger on the street. The second reason for restricting certain connections: the efforts by media and entertainment companies to protect and control their digital goods.

Here, the issues were even more tangled. When a consumer bought digital content, did he own it, or was he just “licensing” the bits? What rights did he have to watch, use, share, or transfer digital media both inside and outside his house? And who should decide?

Whiteside ended his PowerPoint show with a discussion of digital piracy. Piracy runs the gamut from the casual copier and hobbyist to the hacker, small-scale pirate, and professional pirate. Technology, he said, might be effective against the casual copier, but it almost never thwarts determined pirates.

He fired up a video clip. The motion picture Titanic flashed onscreen in remarkable clarity and audio fidelity. “I captured this video clip by pointing my camcorder at the television in my living room,” he told the aides. The only additional piece of hardware needed was an inexpensive time base corrector to synchronize the television and camcorder refresh rates, available at any Radio Shack and used for a wide range of legitimate purposes. Legislate all the technological safeguards you want, he told them, and piracy still would be this easy to accomplish.

Then it was the congressional staffers’ turn. They jousted with Whiteside on the subjects of technology mandates, copy protection, and digital piracy. The government mandated unleaded gasoline, one aide suggested, so why shouldn’t it mandate technological measures in consumer devices to protect the content industry? Another suggested requiring companies to place watermark technology in all camcorders to thwart pirated recordings of movies.

Some of the aides admitted to downloading songs using Napster, while others fulminated against what they considered to be rampant online piracy being enabled by technology companies. Several staffers spoke up in agreement with an aide who called television’s V-chip a great success story. Whiteside alternately sparred, coaxed, cajoled, and educated his guests. A senior aide to a Democratic senator would tell me later, “The session at Intel was by far the most stimulating of the trip.”

Toward the end of the meeting, Whiteside fingered the jewel case of a homemade DVD he had created months earlier. He cued up the video in his laptop and froze the opening frame on the projection screen.

Time to get personal.

Whiteside explained how the homemade DVD came to be. His nine-year-old son Timmy played on a Pop Warner team called the Typhoons, and Whiteside spent the better part of a football season capturing images of the action with his digital camcorder. At long last Whiteside culled together the highlights, imported them into his PC, and began creating his digital masterpiece.

“I used a program to copy a few seconds from the DVD of the movie Rudy,” he said. “It’s the scene showing the final game of the Notre Dame season with Rudy’s family in the stands cheering wildly when he got to play. I then spliced in some snippets of pro players doing a touchdown dance from NFL Films, and I overlaid it with audio from ‘Who Let the Dogs Out?’

"I stitched this all together with video of my son, and it turned out to be the piece of home video that gets watched the most in our house. When relatives or members of the football team come over, we pop it in and we just laugh. The added scenes and music really bring it all to life.”

There was just one problem. “It turns out to do this, I violated the DMCA. I used the DeCSS program to circumvent the encryption and access the movie clips on the DVD that I own,” Whiteside told the aides. “The end product is a DVD that I don’t sell or distribute but is considered a derivative work under copyright law.”

To their credit, none of the congressional aides flipped open their cell phones to call the attorney general. (When I described Whiteside’s home movie to Jack Valenti, he said, “He’s committing a violation of federal law.”)

DeCSS, software devised largely by fifteen-year-old Norwegian Jon Lech Johansen in 1999 to circumvent the digital locks on a DVD, has been widely popular since it first appeared on the Net. (He wrote the code so he could play a DVD movie on his Linux computer. Johansen tells me his original DeCSS code may have been downloaded a million times over the years, and related ripper programs millions more.)

Authorities have brandished the Digital Millennium Copyright Act as a club, threatening to use it against anyone who uses, distributes, or even links to a program like DeCSS. First-time offenders are subject to civil fines of up to $2,500, with penalties of up to five years in prison and a $500,000 fine if the violation was willful and for profit. Whiteside said he didn’t know he was violating the law at the time and hasn’t done it since.

The point of his demonstration, Whiteside said, was not a mea culpa, but a real-world example of how Washington’s penchant for legislative solutions can hobble a new, flowering marketplace of innovation.

“This is precisely the kind of exciting consumer creativity that should be enabled,” he said. “I don’t claim to have all the answers. Should I have to go clear rights to use ten seconds from Rudy in my son’s video, or does it fall under fair use? Should I have to pay pennies for every second of a snippet? I don’t know. But I do know that we have to figure out a way for consumers to do something creative without breaking the law.

“To me, this episode was a great way to frame the question: Should copyright law permit this or not? Should the DMCA criminalize this sort of thing? Or should the creative community, high-tech community, and lawmakers get together to try to stimulate this kind of innovative behavior?”

(From Darknet: Hollywood's War Against the Digital Generation. You may copy excerpts from this entry to comment on or critique the work or to otherwise engage in fair use.)