The Big Picture

On April 25, the Motion Picture Association of America (MPAA) filed its "Content Protection Status Report" (http://judiciary.senate.gov/special/content_protection.pdf) with the Senate Judiciary Committee, articulating a comprehensive plan for technology mandates whose purpose is to limit the unauthorized use and distribution of Hollywood movies. The report calls for regulation of analog-to-digital converters (ADCs), generic computing components found in scientific, medical and entertainment devices. Under this proposal, every ADC will be controlled by a sort of cop-chip that will shut it down if it is asked to assist in converting copyrighted material, such as videotaping a movie with a camcorder -- even if that means that your cell phone will refuse to transmit your voice if you wander too close to the copyrighted music coming from your stereo.

The report shows that this ADC regulation is part of a larger strategy. The first piece of that strategy, a mandate that would give Hollywood a veto over digital television technology, is currently the subject of an FCC rulemaking regarding the "Broadcast Flag" proposal, a rulemaking that will come to fruition before year-end. Hollywood also proposes a redesign of the Internet to assist in controlling the distribution of copyrighted works, which will likely mean the installation of choke-points on U.S. Internet routers that will monitor traffic to ensure that no infringement is taking place.

This three-part strategy-- controlling digital media devices, controlling analog converters, and controlling the Internet -- is a frightening peek at Hollywood's vision of the future.

Hollywood Tips its Hand

The "Content Protection Status Report" calls for a future where innovation and fair use rights are sacrificed to serve copyright interests and where entertainment companies become de facto regulators of new technologies, deciding which mathematical instructions are mandatory and which are forbidden.

The first part of the document details the efforts of the Broadcast Protection Discussion Group (BPDG), which released its final standard for the regulation of digital media technology at the end of May, 2002. After reviewing it, Rep. Billy Tauzin (D-LA) seemed ready to shelve it, as the objections raised by industry and public-interest groups suggested that no consensus was likely on the Broadcast Flag. Nevertheless, Senator Ernest "Fritz" Hollings (D-SC) sent a memo to FCC Chairman Michael Powell on July 19, 2002, a memo that originated on a copy of Microsoft Word registered to an MPAA staffer, in which he called for the FCC to begin a proceeding to mandate the Broadcast Flag, insisting that no act of Congress was required to give the FCC jurisdiction in this matter.

The BPDG's proposed standard will ban the production of digital television output and recording technologies that have not been approved by three Hollywood studios. Approved devices will interoperate only with other approved devices. The combination of legal restrictions on digital television devices and licensing restrictions on the computer technologies they can interface with, if passed, would give Hollywood an absolute veto over all new digital media technology without the need for controversial legislation such as Senator Hollings's Consumer Broadband and Digital Television Promotion Act (CBDTPA).

Plugging the Analog Hole

The second section, "Plugging the Analog Hole," reveals Hollywood's plan to turn a generic technology component, the humble analog-to-digital converter, into a device that is subject to a regulatory regimen that America traditionally reserves for dangerous drugs and weapons.

Analog-to-digital converters (ADCs) are one of the building blocks of modern digital technology. An ADC's job is to take samples of the strength (amplitude) of some analog signal (light, sound, motion, temperature) at some interval (frequency) and convert the results to a numerical value. ADCs are embedded in digital scanners, samplers, thermometers, seismographs, mice and other pointer devices, camcorders, cameras, microscopes, telescopes, modems, radios, televisions, cellular phones, walkie-talkies, light-meters and a multitude of other devices. In general, ADCs are generic and interchangeable -- that is, a high-frequency ADC from a sound card is potentially the same ADC that you'll find in a sensitive graphics tablet.

Hollywood describes ADCs as the lynchpin of unauthorized duplication. No matter how much copy-prevention technology is integrated into DVDs and satellite broadcasts, they cannot stop the Internet user who may aim a camcorder at the screen, the shadowy fan at the concert wielding a smuggled digital recorder, the audiophile jacking a low-impedance cable into a high-end stereo. Each of these people uses an ADC to accomplish the capture of copyrighted material.

Accordingly, the report calls for a plan where "watermark detectors would be required in all devices that perform analog to digital conversions." The plan is to embed a "watermark" (an invisible and inaudible mark that theoretically can be detected only by special equipment and that can't be removed without damaging the media in which it was embedded) in all copyrighted works. Thereafter, every ADC would be accompanied by a "cop chip" that would sense this watermark's presence and disable certain features depending on the conditions.

This is meant to work like so: You point your camcorder at a movie screen. The magical, theoretical watermark embedded in the film is picked up by the cop-chip, which disables the camcorder's ADC. Your camcorder records nothing but dead air. The microphone, sensing a watermark in the film's soundtrack, also shuts itself down.

Under this proposal, unauthorized use will be treated as illegal use. In the world of copyright, there are many uses that are legal, even -- especially -- if they are unauthorized, for example, the fair-use right to quote a work for critical purposes. Any critic -- a professor, a reporter, even an individual with a personal website -- may lawfully copy parts of copyrighted works in a critical discussion. Such a person may scan in part of a magazine article, record a snatch of music from a CD or a piece of a film or television show in the lawful course of making a critical work.

And you don't need to be a critic to make a lawful, unauthorized copy. You might be someone who wants to "format-shift" some personal property -- say, by scanning in a book or transferring an old LP to MP3 so that you might take it with you while traveling with your computer. This is absolutely lawful, but under the "analog hole" proposal, providing the tools to make such unauthorized uses would be illegal.

Unintended Consequences

The Content Protection Status Report shows Hollywood's intention for a legislative framework that rolls back existing, lawful rights in copyright enjoyed by the public today. But the framework's potential unintended consequences are every bit as grave as the loss of current rights.

Virtually everything in our world is copyrighted or trademarked by someone, from the façades of famous skyscrapers to the background music at your local mall. If ADCs are constrained from performing analog-to-digital conversion of all watermarked copyrighted works, you might end up with a cell phone that switches itself off when you get within range of the copyrighted music on your stereo; a camcorder that refuses to store your child's first steps because he is taking them within eyeshot of a television playing a copyrighted cartoon; a camera that won't snap your holiday moments if they take place against the copyrighted backdrop of a chain store such as Starbucks, which forbids photography on its premises because its fixtures are proprietary works.

As was mentioned, ADCs are fundamental, generic computing components, found in medical and scientific equipment, computers, and a variety of consumer electronics. The primary difference between most ADCs is the frequency at which they run. Two ADCs of like frequency and bit rate can be interchanged. If any "free" ADCs are allowed into the marketplace, they will surely find themselves repurposed in camcorders, samplers, and scanners.

The Scourge of P2P

Hollywood's report to Congress includes its third legislative goal: "Putting an end to the avalanche of movie theft on so-called 'file-sharing' services, such as Morpheus, Gnutella, and other peer-to-peer (p2p) networks."

Here, Hollywood is seeking to overturn the Betamax doctrine -- the principle that a technology is legal, provided that it can be used to accomplish legal ends. VCRs are legal, even though they can be used to make illegal copies of copyrighted works, because they can also be used to make legal copies of personal works and copyrighted works (in the case of time- and format-shifting).

P2P networks -- such as the Internet -- are not infringing in and of themselves. "P2P" describes a technology where the system's control is largely or entirely decentralized. P2P application networks are turned to all manner of ends, from sharing classroom materials and independently produced media to distributing large scientific problems associated with the search for a cure for AIDS. True, they can also be used to make unauthorized -- and even illegal -- copies of copyrighted works, but the Betamax doctrine does not establish as its standard that no illegal uses be possible with a technology; only that a technology be designed for some legal use.

What's more, thoroughly decentralized networks like Gnutella have no control-point. There is no central server, no standards-body, and no exploitable point where leverage can be applied to control what is and is not available on the network. The Internet is fundamentally constructed to permit any two points to communicate, and as long as this is true, Gnutella and its brethren will thrive.

Which begs the question: How will Hollywood put "an end to ... movie theft on ... p2p networks?" Short of dramatically re-architecting the Internet, it seems inconceivable that P2P will ever be controlled or eliminated.

But dramatic redesigns of the Internet may be what Hollywood has in mind. In 1995, Hollywood's representatives in government penned "The Report of the Working Group on Intellectual Property Rights," calling for an Internet in which functionality had been constrained to "permit [rights-holders] to enforce the terms and conditions under which their works are made public."

Take a Stand

Hollywood's legislative agenda is by no means wishful thinking. The FCC is currently considering a Broadcast Flag mandate. The Broadcast Protection Discussion Group contained only one IT dissenter -- Microsoft -- while all other IT participants in the process (virtually every major IT company was represented through industry associations) failed to register any complaint over the MPAA's call for a Hollywood veto on Digital Television technology.

The Broadcast Flag is the spider we swallow to catch the fly. Without a Broadcast Flag, there is no point in plugging the Analog Hole. Until the Analog Hole is plugged, redesigning the Internet will do no good.

IT companies must come forward to oppose technology mandates. Voluntary, objective standards give us the innovative market in which we operate today. Mandatory vetoes will undo it.

What's inside...