The Devil Is In the Absence of Details
Right now, the MPAA and the RIAA are asking for additional statutory authority for the FCC. These groups want the Commission to have the power to put technical mandates in place covering all the devices that attach to our internet.
This is a bad idea, not just because such rules will constrain every imaginable consumer electronics and personal computing device, but also because the MPAA and RIAA will be in the driver's seat when it comes to choosing and implementing the rules the FCC promulgates. In effect, they'll be dictating the designs of all technology manufacturers. We can't let this happen.
Here's the MPAA's language. (They recently succeeded in getting twenty members of Congress, twelve Rs and eight Ds, to write to the relevant committee asking for the flag to be put in place [LATER: letter is here]):
“The Federal Communications Commission –
(a) has authority to adopt such regulations governing digital television apparatus that are appropriate to control the indiscriminate redistribution of digital television broadcast content over digital networks, and shall issue forthwith, as final rules and interim certifications pursuant to such authority and effective on ______ , the rules and certifications contained in the Report and Order in the matter of Digital Broadcast Content Protection, FCC 03-273 and certifications contained in the Digital Output Protection Technology and Recording Method Certifications, FCC 04-193″
Bottom line: The MPAA wants the November 2003 flag rules raised from the crypt into which the DC Circuit placed them in May 2005. Sure, the FCC can change these rules once they're reincarnated, but they won't.
As you probably know, the impact of these rules would be breathtaking. MPAA's talking points say that no consumer will be prohibited from copying content, but don't make clear that under the flag scheme flagged DTV content may only be received by devices that (1) use “authorized” content protection technology, (2) connect only with other devices that also use “authorized” technology (thus creating a closed handshake of devices and forcing a lot of consumers to upgrade), and (3) don't allow pieces of that content to be sent out over the internet. There's no limitation in the proposed legislative language to devices that “demodulate” (directly receive and make visible to humans) TV signals. Any device that connects to these devices will be covered too. And all PCs with tuner cards will be part of the scheme — all of their digital outputs will have to be “protected” by “authorized technologies.”
MPAA's talking points will also say that the FCC will be sure to approve new forms of authorized content protection technology in the future that do allow DTV files to be sent online. But the evidence is that MPAA has been effective in convincing technology providers to back off when seeking approval of new content protection technologies that have something to do with the internet.
A recent CDT report (Broadcast Flag Lessons) should make us worry about the MPAA's ability to get the results it wants at the FCC. In CDT's words:
One of the most important untold stories of the [interim content protection technology] approval process were the decisions of consumer electronics and IT companies to withdraw valuable proposed features from their products under pressure from third parties, before the FCC ever had a chance to rule. In several instances, the flag process gave the content industry undue influence over the technology offerings of several technology applicants, allowing it to shape product design in areas outside the explicit scope of the rules.
The CDT report carefully details what happened. Four tech companies (MSN, Thomson, Real, and TiVo) proposed technologies that would have blocked indiscriminate internet transmission (the standard set by the FCC's rule). Under pressure from the MPAA, three of them (all save TiVo) backed down and changed their technologies to match MPAA's technical specifications — designed to allow transmissions only inside a house or just outside a house. As CDT says:
That the FCC’s approval process could allow a third party to effectively write the design specs for the implementation of localization controls in several submitted technologies clearly raises the specter of, in the FCC’s words, “one industry segment exercising a significant degree of control over decisions.”
Nothing in the proposed legislative language will change this situation. There are no objective standards, no standard processes for technology approval, no oversight of what the FCC does is created — it's the same ad hoc, merciless swamp that we were faced with the first time around. And the MPAA will be wielding enormous power behind the closed doors of the FCC.
If that doesn't make you want to write your Congressperson, perhaps this language from the RIAA will:
“The Federal Communications Commission –
(a) has authority to adopt such regulations governing digital audio broadcast transmissions and digital audio receiving devices that are appropriate to control the unauthorized copying and redistribution of digital audio content by or over digital reception devices, related equipment, and digital networks, including regulations governing permissible copying and redistribution of such audio content necessary to address issues such as those under consideration in the proceeding on the Notice of Inquiry In the Matter of Digital Audio Broadcasting Systems and their Impact on the Terrestrial Radio Broadcast Service,MM Docket No. 99-325, provided, however, that adoption of any digital audio regulations pursuant to this section shall not delay the adoption of final operational rules for digital audio broadcasting. . . “
This would allow the FCC to impose home copy protection mandates on digital radios — something the Commission doesn't now have the authority to do. No more unauthorized radio copies.
Both of these provisions would give enormous tech mandate power to content industry trade associations. Very few technology manufacturers will be willing to fight back — remember, no consumer electronics manufacturer was willing to sue the FCC over its lack of jurisdiction to enter the flag rule in the first place. No one wants to upset the content industry.
Can't someone get the numbers to Congress? The tech industry in this country contributes far more to our economy than Hollywood or the RIAA. The designs of their devices shouldn't be dictated by movie producers and record labels.