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.
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5 Responses to “The Devil Is In the Absence of Details”
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The RIAA and MPAA represent the distribution channels for much of the multimedia technology (ask yourself why the world has not been flooded with audio and video merchandise). The technology industry uses them to filter the “needs”, and provide a neat way to budget and plan. Otherwise, they'd have to make guesses as to what products and features they might put into the market. It's their warped ideas on maximizing profits.
If, on the other hand, we could reach out and put the multimedia tools in the hands of the public, the RIAA and MPAA would be forced out of the equation. Better we think about how best to “arm” the public.
I am no longer involved in the discussions and no longer speak for any of the players, but I think the idea that they are dictating technology policy and design to Microsoft, Intel, Thomson, etc. would strike content industry negotiators as bitterly amusing. Those companies are all 800-pound gorillas that take orders from no one. Of course, that does not mean that negotiations are not possible; but the mere fact that there is on occasion agreement and compromise does not mean that one side has caved to the other's demands, unless you subscribe to the view that any compromise is a sign of weakness. Advocacy groups tend to hold that point of view, certainly, but most other people and companies do not.
In the Broadcast Flag discussions you cite, if you read what Microsoft and the MPAA actually agreed to, it was that Windows Media DRM would incorporate proximity controls “until … remote access issues can be further addressed appropriately.” In a follow-up letter, Microsoft made clear it expects later versions of WMDRM will not have proximity controls on copying (and even the first version had no proximity control on streaming over IP). Since redistribution of DTV content over IP networks is still unfamiliar to many consumers, this is probably not a big “give” on Microsoft's part. Similarly, Thomson agreed to incorporate proximity controls only “until those issues can be addressed appropriately” — such as in the FNPRM that was cut short by the D.C. Circuit's jurisdictional ruling. Granted, that's different than TiVo's decision to plow ahead, consequences be damned, but I don't think it's fair to either Thomson or the MPAA to say that Thomson was unduly pressured by content owners to take the position it did.
It's the same with the FCC. The FCC clearly accepted the content industry's case on the need for the Flag; but, among other things, its certification of TiVoGuard over the MPAA's vociferous objections shows that, whether or not the FCC was right, it is charting its own course on how to implement it. I don't believe there is any reason to think that in adopting further amendments to the Flag regulations, or considering further certifications, the FCC will be the captive of any particular industry group.
Bruce: Can you expand on your statement, “Advocacy groups tend to hold that point of view, certainly, but most other people and companies do not. “? I wasn't able to determine what other people and companies you might be referring to.
Also, could you identify who the current content industry negotiators, i.e., persons you refer to in your comment?
Tom, in both cases I was not referrring to anyone in particular. With respect to advocacy groups, it seems to me that they are — on average — less willing to compromise on issues than most people, which makes some sense, given that those issues are often their very reason for being. I would point to the recent court nomination fights (both sides) as an example. I should make clear that if there is an exception to that rule in this area, it's CDT, the group mentioned in Susan's post, so I certainly didn't intend to refer to them.
As we have seen over the past few years, efforts to restrict what people can do with ICT - in particular efforts to monopolise or regulate - become the focused target of very committed people. And I'm not talking about pirates and crackers.
Efforts to lock people into restrictive technologies, particularly ICTs, are all too easily undone. Particularly at the technology implementation level.
Examples: DVD regionality, iPod DMAs, Microsoft DLL hooks, the whole open source community.
Bad policies or laws do not stop people (anymore than good ones, i guess). But when it comes to ICT, just because you claim ownership of content that does not give you ownership of the delivery system. Just ask any car owner driving on a highway.
Provide us with another challenge, please.