Cites & Insights: Crawford at Large
ISSN 1534-0937
Libraries · Policy · Technology · Media

Selection from Cites & Insights 6, Number 3: February 2006

©4: Locking Down Technology

Analog Hole and Broadcast Flag

The good news: Congress didn’t pass any significant copyright legislation in 2005. The bad news: Big Media is back, stumping for even more ambitious efforts to eradicate fair use and assure that they have total control over all uses of “their” creations.

What may in the end be the other good news: The initiatives discussed here are so extreme that they could convince more legislators to pay attention to balance. It’s possible that sheer gall and overreaching could wind up biting RIAA and MPAA in the butt. Unfortunately, that’s not a safe bet.

When DMCA was passed. the analog hole was the safety valve: You could always exercise fair use rights by making an analog copy of the DRM-heavy digital resource and using that copy to serve your needs. With the Broadcast Flag, the analog hole was the safety valve: At least you’d be able to make a copy (probably VHS-quality) of a broadcast, even if the flag prevented digital copies. But behind those assurances, Big Media was never too shy about its ultimate aim: To close the analog hole, since what can be converted from digital to analog can be reconverted to digital—without the DRM that was in the digital original.

Thus we have the Digital Transition Content Security Act, one of three locking-down bills introduced in early November 2005. It’s designed to close the second half of the hole (reconverting analog to digital), initially for video—but even at that, it would spell the end of open innovation, open-source software for open-platform general-purpose computers, and any plausible sense of fair use. It’s only the opening stage, to be sure: If it passed, you can assume an audio analog hole act would follow. Of the other two bills, one provides the FCC with the power to enact the Broadcast Flag that the courts properly said it doesn’t have. The other, interestingly, says that satellite and digital radio shouldn’t be able to provide effective downloading/recording capabilities.

One peculiarity shines through informed discussion of all these proposals: They won’t stop commercial piracy. They won’t even slow it down. Their proponents don’t pretend that they will. What the bills will do, if enacted and upheld, is keep users—ordinary citizens—from taking full advantage of the entertainment they’ve paid for or received over the open airwaves. These “speed bumps” will undermine fair use without inhibiting large-scale piracy.

Other ©4 stuff

Other ©4-related pieces have been lying fallow: the Grokster outcome, P2P, and things like that. The stuff’s been sitting around too long. I’m scrapping it to make a clean start. There’s one nasty little piece of proposed copyright tightening, the Intellectual Property Protection Act of 2005, that deserves quick notice. It would remove copyright registration as a requirement for criminal prosecution of infringement. It’s called a clarification, but it’s a one-way clarification. Given that most Big Media properties are registered, one wonders why such a “clarification” is even needed except as one more way to terrorize file sharers and the like. (Oh, it also clarifies that attempting to infringe copyright is just as criminal as succeeding, and broadens other definitions to make it easier to prosecute for copyright infringement.)

A quick chronological scan of interrelated items and comments about them, as usual.

Michael Powell’s invisible legacy

Way back in January 2005, J.D. Lasica wrote this piece for Reason ( shtml). Powell was chair of the FCC. On his watch, penalties against broadcast “indecency” got much tougher—enough so that, for example, Family Guy reruns have a cartoon baby’s butt pixilated because Fox is nervous about fines. Lasica’s optimistic enough to believe “we’ll soon boot the Puritans out of power,” and I hope he’s right—but the bulk of the piece is about Powell’s attempt to transform the FCC into the Federal Computer Commission. That’s Lasica’s reading of the Broadcast Flag (which at the time was scheduled to take effect on July 1, 2005).

Lasica agrees that the Broadcast Flag wouldn’t prevent redistribution of digital TV: “We already know the pirates…will continue to capture digital television shows…Instead, the public will bear the brunt…” For example, more than 75 million current DVD players would not be able to play flagged TV programs recorded with post-flag DVD recorders.

Lasica sees part of the problem as the FCC “treating us as consumers rather than users” and endorsing Hollywood’s idea that consumer electronics, including computers, should be “no more than playback devices for Big Entertainment content.” He notes instances of real fair use that the Broadcast Flag could prevent. James M. Burger, a tech lobbyist, puts it bluntly: “You’re ceding control of the devices in people’s homes to the movie studios.” Lasica notes that the RIAA is pushing for a similar flag for digital radio. Lasica concludes:

If the broadcast flag for video and audio worked, that would be one thing. But it’s obvious even before the rule takes effect that the flag will do nothing to stop Internet piracy. A simple digital-to-analog conversion will defeat the flag. But the flag will clamp down on fair use rights, stifle innovation, turn hobbyists and tinkers into criminals, create inconvenience, raise prices, impose new regulatory burdens—and infuriate law-abiding citizens who no longer control the technology in their own homes.

Is it any wonder that Powell is skipping town a few months before the public begins howling?

Unfortunately, there’s some reason to believe that most of the public wouldn’t howl—and that the hundreds of thousands who do would be ignored, at least by the FCC (just as they ignored thousands of comments opposing the Broadcast Flag). Most consumers, I’m afraid, are just that: Consumers. And most of the magazines I read that should have been crying bloody murder were assuming the flag was a fait accompli that was truly needed to save the poor studios; don’t rock the boat or anything. There have been exceptions, but surprisingly few.

Copyright protection of digital television: The “Broadcast Flag”

That’s the title of a May 11, 2005 CRS Report for Congress; I haven’t seen a newer version. It’s a good quick intro to the issue, even if it does assume that the broadcast flag was really about “reconciling” competing interests, as opposed to slanting the playing field toward content holders’ interests.

One notable change from the tone of Big Media propaganda: Three words in this sentence between the first and second comma…

Digital content, like other media, can be relatively easily duplicated and distributed, especially with the aid of the Internet.

Like other media. Indeed. It goes on to say that unlike other media, duplication does not degrade the original. That’s wrong on two counts. Quibbling, duplication of any medium doesn’t degrade the original, it degrades the copy. More significantly, most analog media can be digitized without noticeable loss of quality—and that’s the end of the degradation, if the digitized version is stored in lossless form. The same paragraph understates: “Content providers have greeted this new technology with some trepidation.”

According to CRS, the supposed “compromise” report did not require that all machines recognize the Broadcast Flag; that’s different than the FCC rulemaking. Theoretically, the flag doesn’t prevent distribution of content to non-compliant devices (that is, older devices), but it wouldn’t take much of a change to remove that loophole. (The Analog Hole bill comes very close: I see a change in which, at best, any legacy equipment could only get broadcasts in 720x480 pixels at 30 frames per second, essentially standard-definition broadcast quality or “480i.”)

In the “possible implications” section, the report says the goal of the flag was “not to impede a consumer’s ability to copy or use content lawfully in the home,” but that’s not the reality: “Current technological limitations have the potential to hinder some activities which might normally be considered ‘fair use’ under existing copyright law.” (Sad that the CRS uses scare quotes around fair use.) In fact, it’s not potential: There are known straightforward cases, one or two mentioned here. The report also notes that, despite the urging of consumer groups, the FCC declined to adopt language to prevent the broadcast flag on news programs and works that are already in the public domain: Even this nod to the public interest was too much for the FCC. The report ends with a summary of ALA vs. FCC, in which the Broadcast Flag was struck down…for now.

Smaller items in May and June 2005

Ed Felten pointed out an interesting story from National Journal Tech Daily in a May 24, 2005 Freedom to tinker post. Mike Godwin of Public Knowledge was on a panel in the District of Columbia along with some people from Big Media. Godwin made this comment about the Broadcast Flag and similar measures:

“I don’t want to be the legislator or the legislative staff person in charge of shutting off connectivity and compatibility for consumers, and I don’t think you want to do that either. It’s going to make consumers’ lives hell.”

Responses to this reasonable statement? Rick Lane of News Corp. (Fox et al): “Compatibility is not a goal.” An NBC Universal person seconded the comment. So much for your DVD players and other devices! As Felten notes, “To consumers, compatibility is a goal.” The punch line: “The most dangerous place in Washington is between Americans and their televisions.”

But only if Americans recognize there’s a danger—and blame the proper parties.

Ø ran a pair of commentaries on May 26: “Why the broadcast flag should go forward” by Dan Glickman (MPAA head) and “Why the broadcast flag won’t work” by Jim Burger, a media attorney. Glickman talks about “protecting the magic of the movies” and, of course, claims that his interest is making certain that we’ll keep seeing movies and TV shows on free television. He makes the odd claim that, without proper protections, “it will be increasingly difficult to show movies, television shows or even baseball games on free television.” Baseball games? Naturally, he assures us that the only effect of the flag is to “assure a continued supply of high-value programming” and that the flag “does not inhibit copying.” He talks about the “consensus” among consumer electronics and media companies—and ends, “In the end, it will be the consumers who suffer the most if the broadcast flag is not mandated for the digital era.” How many years have you seen HDTV logos on programs? For more years than that, the studios have threatened—promised—that they won’t show the good stuff without a flag. And for that many years, the studios have failed to make good on their threat. Burger’s response is odd in that he favors protection—but via encryption. He notes the FCC authority problem, failure to prove any real threat, and the lack of real protection. He notes that all you need is software to demodulate a TV signal, so that the FCC would require absolute regulation over all software development to make the flag work. He notes that, when Judge Edwards asked whether the FCC would have jurisdiction over an internet-attached washing machine, the answer was yes. What he doesn’t mention, more’s the pity, is fair use; in fact, Burger appears to be just as much a protectionist as Glickman—through different means. It’s an odd debate, like having Bill Frist debate Tom DeLay.

Ø    Donna Wentworth of Copyfight quotes a Slashdot commentary that’s partly right. I’d agree with the first and last sentences: “The broadcast flag is just another tool devised by the MPAA to help insure that if people want to watch something beyond the original air-date, they’ll have to go out and buy it… By insisting that there be a broadcast flag, the MPAA is basically saying, “We don’t care about your right to fair-use, we want your money and we’ll get it, one way or another.” (Wentworth rewords that: “It’s not so much that they don’t care about fair use. They simply want to sell our rights back to us at a premium.” I’d put it another way: The MPAA denies the existence of fair use and wants to destroy it.) I disagree with the core paragraph, which begins, “Fact is, by the time a production makes it to broadcast television, it’s made all the money it’s going to make.” That’s not true. Some original TV productions lose money on airing with the expectation of making a profit on syndication and DVD sales. Which doesn’t justify removing fair use and other limitations on absolute copyright.

Ø    Sure enough, some Congressfolk tried to sneak the Broadcast Flag in with a budget bill, specifically the digital TV transition bill. One of them (a Democrat: copyright extremism knows no party lines) even said “This is really a budget bill, not a telecom policy bill”—while attempting to set telecom policy within it. (As reported at Copyfight on May 27, 2005.) It didn’t happen, possibly because Joe Barton (R-TX), chair of the House Commerce Committee, thought it was a bad idea.

Broadcast Flag authorization legislation: Key considerations for Congress

This sad seven-page document was issued by the Center for Democracy & Technology (CDT) in August 2005. It “offers recommendations for Congress”—not to dump the Broadcast Flag as a bad idea, but on the “types of limits that Congress should consider.”

CDT agrees that digital broadcasts are “susceptible to large-scale piracy, and that this poses a serious threat to the owners of video content”—claims that have never been demonstrated. The discussion notes how many devices would be impacted and that the Flag “could stymie technological innovation and the deployment of exciting new consumer technologies”—but says not a word about fair use and citizens’ rights. To CDT, I guess, we’re just consumers.

The recommendations call for a category of news coverage that can’t be flagged, but the only real “consumer protection” is to “require notice to consumers concerning the types of pre-flag devices with which the new, flag-compliant devices will not interoperate.” Since that notice would be after the flag is adopted, it boils down to “You’re screwed, but we’ll tell you exactly how.”

There’s an odd call for “clear and narrow parameters,” noting that even in advance of any regulatory denials, three of four applicants proposing secure limited internet transmission withdrew the capability before the ruling.

CDT seems to understand that it isn’t about commercial piracy at all: They state that the flag’s purpose should be to “effectively frustrate an ordinary user from engaging in indiscriminate redistribution of flagged content…” [Emphasis in the original.]

As an August 23 story notes, “One non-profit advocacy group is breaking ranks with its usual allies.” As other commentators noted, the most unfortunate thing about the CDT paper is the implicit assumption that a broadcast flag is inevitable.

Analog Hole legislation

An October 31, 2005 “Deep links” item at the Electronic Frontier Foundation, “Halloween on the hill,” notes a special House Judiciary Committee hearing involving the broadcast flag—but also the RIAA’s “insane digital radio requirements” (EFF’s phrasing, and I’m not sure I disagree) and, surprise surprise, “the Thing from the Analog Hole.”

I read the 35-page draft of the latter proposed legislation, HR4569, marking it for comment. I believe EFF’s comments are right on the money (not something I always say about EFF’s stance), so I’ll quote most of Danny O’Brien’s post in lieu of most of my own comments (correcting a few British spellings and punctuation along the way):

Here's what the proposed law says, in a nutshell:

Every consumer analog video input device manufactured in the United States will be, within a year, forced to obey not one, but two new copy restriction technologies…

And what might these MPAA-specified, government-mandated technologies do?

They prescribe how many times (if at all) the analog video signal might be copied—and enforce it. This is the future world that was accidentally triggered for TiVo users a few months ago, when viewers found themselves lectured by their own PVR that their recorded programs would be deleted after a few days.

But it won't just be your TiVo: anything that brings analog video into the digital world will be shackled. Forget about buying a VCR with an un-DRMed digital output. Forget about getting a TV card for your computer that will willingly spit out an open, clear format.

Forget, realistically, that your computer will ever be under your control again. To allow any high-res digitization to take place at all, a new graveyard of digital content will have to built within your PC.

Freshly minted digital video from authorized video analog-to-digital converters will be marshaled here and here only, where they will be forced to comply with the battery of restrictions dictated by Hollywood.

In this Nightmare Before Turing, video content will be crippled, far more than it ever was in its old analog home. They will only be able to be recorded using "Authorized Recording Methods," or "Bound Recording Methods," and the entire subsystem will have to obey "robustness" requirements that will make circumvention for fair use—and open source development in general—near impossible.

The unprotected analog outputs of computers will be, in perpetuity, restricted to either DRM-laden standards, or to a "constrained image," "no more than 350,000 pixels." Analog video which has been branded as "do not copy," will last for only ninety minutes only in the digital world—and will be erased, literally frame by frame, megabyte by megabyte, from your PC, without your control. You'll watch a two hour film, and as you watch the final half hour, the first few scenes will be being dissolved away by statute.

Moore's Law won't dictate how technology might improve and innovate any longer: in this Halloween future, the new limit for technological innovation is No More's Law, where your specs are spelled out and frozen by Congress in a law drafted by standards that were laughable in the last century.

And this is just a plain description of how this might affect our technology.

Quite beside that, the law is littered with throwaway requirements that would smack our economy and social norms in the face as well.

The MPAA, for instance, graciously permits a few, precious, normal analog-to-digital converters to exist. But only on "professional devices."

What's a professional device? Well, just as in the Audio Home Recording Act (AHRA), it's a device that is intended for use by recording professionals. (AHRA you will recall, was the law that mandated copy protection on all but "professional" DAT recorders, thereby killing the technology almost stone dead in the commercial marketplace).

Unlike that Act, in the MPAA's new bill, "if a device is ... commonly purchased by persons other than [commercial copiers], then such device shall not be considered a 'professional device'."

In other words, you can sell standard unrestricted digitizers, until you become too popular. Then magically, you're liable. For not more than $500,000 or five years imprisonment for a first offence. Good luck explaining that market condition to your backers.

Oh, and don't think you can just obey the law as it stands now: if the…technologies prescribed by the law become "materially ineffective," then the government can upgrade those standards, and demand compliance on the new spec.

The trustworthy, well-funded technological powerhouse they've chosen to give this new responsibility of monitoring, designing, and managing the upgrading of every video converter in the United States? That uncontroversial institution, the U.S. Patent and Trademark Office.

It's genuinely shocking to us that the entertainment industry would bring even one of their standard technological pipe-dreams to the table now, even as they are still reeling from the reception the broadcast flag has so far received in the courts and in congressional committees.

But to bring this: an invasive, future-crippling Frankenstein monster of a DMCA anti-circumvention bill, bolted together with an overbroad broadcast-flag restriction, to stand guard at every exit from the analog video world into digital future, is breathtaking.

It's bad enough that Hollywood's customers have had to drag them and their content kicking and screaming from dying business models into a new era. Now they seem intent on putting up government roadblocks to stop any of us from leaving their Haunted Mansion of dying analog video media, into world of a living, developing, digital future. Spooky indeed.

EFF tends toward hyperbole at times. Not this time. This is a fair rendition of the bill and its implications. Incidentally, “no more than 350,000 pixels” (that is, ordinary TV resolution) is accompanied by “30 frames per second”—so it really means “480i,” no better than standard TV. And although this legislation only affects video, I would bet that, if approved, RIAA would follow close behind with a request to extend it to audio. In which case, given the sheer difficulty of doing analog-mode audio marks that aren’t obtrusive, I can’t see any way the system could be enforced without “guilty until proven innocent” provisions for all file copying.

The proposed law has some of that Napoleonic Code feel to it. “Innocent violations” may have damages removed—but the “violator sustains the burden of proving…that the violator was not aware.” Nonprofit libraries and archives may have damages waived—but again, those institutions must prove that they weren’t aware of a violation. Guilty until proven innocent: A great step forward in American law!

A November 1, 2005 Boing Boing post calls this legislation “shockingly ambitious” and calls it “the Broadcast Flag on steroids,” noting that, had it been around in 1976, the VCR would be illegal—and now it would turn “huge classes of technology into something that exists only at the sufferance of the studios.” Here’s what MPAA people say about rewinding, fast-forwarding, skipping ads, place shifting and the like: “Doing this stuff has value, and if it has value, we should be able to charge money for it.” There it is, plain and simple: Studios should have the force of law behind their intent to squeeze every last dime they can from “consumers.” The post notes that the legislation would not at all prevent piracy—but it would shut down perfectly legal things you can do today. “Any lawmaker who supports this is an idiot. Americans will forgive a lot of sins from their elected representatives, but there’s one thing they won’t stand for and that’s breaking their TVs.”

Similar cries of informed outrage appeared elsewhere—at Public Knowledge, Copyfight, and the other places you’d expect. (Furdlog noted at the end of the year that even the “industry’s hometown paper,” the L.A. Times, thought the legislation was stupid.)

Other October and November developments

An October 5, 2005 Copyfight post, “Night of the living Broadcast Flag,” notes Cory Doctorow’s assertion that the Flag will have to be killed a dozen more times before Congress finally understands how bad it is—and quotes a sample letter that Public Knowledge suggests be sent to members of the committees considering the Flag. The letter points out that “There is no ‘narrow’ way to implement the broadcast flag,” that the related proposal for a digital radio protection scheme “would probably halt digital radio rollout” and could harm the transition to digital TV, and that it limits fair use, educational use, and innovation. Donna Wentworth adds a specific point for open-source enthusiasts: Open-source software would be “non-robust” in Flag terminology, thus illegal.

An October 10, 2005 post attempts to answer two mysteries: Why 20 representatives sent an open letter pledging support for the flag and why one lobbyist is suddenly claiming that the DMCA is about the freedom to make contracts. The first is clear enough: Because the Flag wasn’t assured passage. The letter from the representatives repeats “free, over-the-air television” eight times, including four times in four consecutive sentences. Of course, as noted here and elsewhere, the threat to boycott digital TV is empty. The DMCA aspect is a bit convoluted, and has to do with an attempt at “compromise”: If the MPAA wants the Flag, it needs to accept fair-use limitations on DMCA. But no: Changing DMCA would infringe upon the freedom of corporations to impose contracts. Now there’s freedom in action!

The Analog Hole bill was introduced just days before the November 3, 2005 House Judiciary Committee meeting, as was RIAA’s “insane digital radio requirements” notion. I read through four statements from that hearing, by Gigi B. Sohn (Public Knowledge), Mitch Bainwol (RIAA), Dan Glickman (MPAA), and Michael Petricone (Consumer Electronics Association). Against, For, For, Against: You can figure that out without reading the statements.

I annotated each statement with the expectation of noting some interesting points here. That may be more detail than you need; for now, it’s almost enough to say that this trio of bills represents shockingly bad legislation. Gigi B. Sohn outlines just how bad (and the extent to which the legislation would harm business, not help it).

Mitch Bainwol repeats the disproven plaint that P2P has “already devastated the music and other content industries,” asserts that any new radio features need to be licensed by RIAA (and considers automatic downloading for digital radio such a new feature), misstates AHRA’s nature and intent, and seems to grumble mightily over the fact that radio broadcasters don’t have to negotiate individual permissions with RIAA companies. There’s the claim that other broadcasting services “are prohibited from enabling listeners to make copies of the songs broadcast in their programs”—you know, it’s impossible to capture streaming radio or, say, over-the-air radio! We’re told that people who can make free copies of what they’re listening to (e.g., radio listeners) won’t purchase the tunes—so much for iTunes! It’s an astonishing statement but quite typical for RIAA.

As to Glickman of the MPAA—need you ask? Glickman’s a former Congressman; wonder why he got the MPAA job? He admits that real pirates will break any security measures—and flatly claims that a thousand “otherwise law abiding citizens” sharing movies with friends “has the same impact as a single commercial pirate selling a thousand copies of a movie on a street corner.” There it is: One shared copy, a thousand commercial piracies: Same thing, once you add it up. So MPAA says “Lock down the citizens, since we’re slow to get the real pirates.” Such a civic-minded group. The analog hole was the safety valve for DMCA. Now MPAA wants to get rid of the safety valve. Of course the group claims there’s consensus. Of course they call consumer groups “self styled ‘consumer groups’.” Glickman manages to imply that EFF agreed to the Analog Hole proposal, if you don’t read his sentences very carefully. And, to be sure, we hear that most “typical consumers” will never even know that the Broadcast Hole and analog lockdown exist; after all, who would ever try to play a 2007 DVD-R on a 2005 DVD player? To read Glickman’s statement is to understand the sheer contempt that MPAA must feel for us poor rubes who watch Their Movies and Their TV Shows.

Petricone, who also speaks for the Home Recording Rights Coalition, naturally opposes the proposals at hand, given their “potential to put the future usefulness of [CEA’s] products at risk, and to make our customers very, very unhappy.” CEA represents a considerably larger business enterprise than MPAA and RIAA put together (and, unlike RIAA, it’s not mostly foreign-owned)—so it should carry a little weight. Petricone notes that Big Media first says it’s satisfied with a compromise—but then “keeps coming back to the Congress with proposals to subject new legitimate consumer products to prior restraints on their usefulness in the hands of consumers.”

Petricone makes his pro-copyright stance clear: CEA and HRRC were partners in developing the DMCA. The assumption was that DMCA struck the needed balance, although it’s a balance that largely favors copyright owners over consumers. He notes that the FCC-adopted Broadcast Flag is broader than the version CEA consulted on. More to the point, the Analog Hole legislation is much worse: It explicitly restricts home copying and imposes a mandate on “virtually every product and piece of software capable of digitizing analog video signals, and on every digital device capable of storing them.” (Which includes every PC, whether or not it has a tuner.) He reminds us that HDTV has actually been around for quite a long time, roughly a decade, somehow surviving without the Broadcast Flag and with the Analog Hole. There’s a lot more here, much of it detail about the failings of the Analog Hole legislation. (The very long bill was sprung on commenters three days before the hearing; he calls it “largely incomprehensible” even to experienced readers.)

He also discusses the third act, the HD Radio Content Protection Act, in some detail. It’s an atrocity, and you may understand that better from his remarks (which should be easy enough to find.) He notes the lack of a demonstrated problem for this solution, that recording of digital broadcasts should be covered by AHRA, and that this introduction is essentially a betrayal by RIAA of its explicit agreements.

What happens next? We shall see—and with luck, Congressfolk will begin to look at proposals such as these and recognize just how extreme MPAA and RIAA have become in their attempts to lock down consumer rights and technological innovation.

Cites & Insights: Crawford at Large, Volume 6, Number 3, Whole Issue 73, ISSN 1534-0937, a journal of libraries, policy, technology and media, is written and produced by Walt Crawford, a senior analyst at RLG.

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