Robert Greenwald, an honored (and innovative) director and producer of films, has a new documentary coming out that critiqes Fox News, called OutFOXed. The New York Times Magazine has a lengthy article on many of the issues facing the making of this documentary, most prominently the copyright clearance issues (which are particularly difficult for films) (How to Make a Guerrilla Documentary).
Obviously, the documentary will feature many clips from Fox News, often showing them in a less than flattering light. Fox News famously sued over the title of Al Franken's book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. The case was laughed out of court, but it shows how litigous Fox News is willing to be. So, Greenwald is rightfully afraid that he will be sued, despite the merits of his case. Fortunately, it seems that perhaps Fox News has learned its lesson (their lawsuit helped publicize Franken's book better than anything). According to the Washington Post (annoying reg. req.) Fox News may ignore this documentary (though the statement certainly isn't a promise not to sue) (Too Late to Comment?):
"People steal our footage all the time," says Dianne Brandi, Fox News's vice president for legal affairs. "We generally sort of look the other way."
Nevertheless, there have already been other significant copyright problems, according to the NY Times Magazine article:
Then there was the fact that several major news organizations were unexpectedly refusing to license their clips. (Such licensing is ordinarily pro forma.) CBS wouldn't sell Greenwald the clip of Richard Clarke's appearance on ''60 Minutes,'' explaining that it didn't want to be associated with a controversial documentary about Murdoch. WGBH, the Boston PBS station, wouldn't let Greenwald use excerpts from ''Frontline'' for fear of looking too ''political,'' it said.
An aside: Of course, why use copyright law if there are other means to prevent the making of these sorts of films. Take, for example, the process Greenwald used to make the film:
''Outfoxed'' was made in an unusually collaborative fashion. In January, Greenwald rigged up a dozen DVD recorders and programmed them to record Fox News 24 hours a day, seven days a week, for about six months.Fortunately, Greenwald didn't have to deal with the broadcast flag, which would make using such clips significantly more difficult (and expensive).
Another critical aspect to note about Greenwald's film is the innovative distribution methods he uses, bypassing traditional gatekeepers:
Last year, Greenwald followed up that effort with ''Uncovered,'' his critique of the Bush administration's case for war in Iraq, which featured interviews with former intelligence analysts, weapons inspectors and Foreign Service officers. Once the film wrapped, Greenwald turned the traditional distribution model on its head. Rather than taking the time-consuming route of entering film festivals or courting theater distributors, he sold the DVD of ''Uncovered'' through the Web sites of various left-liberal organizations: MoveOn, The Nation magazine, the Center for American Progress and the alternative-news Web sites AlterNet and BuzzFlash.Through such means he has sold tens of thousands of DVDs. This is no mean feat and it shows the power of alternative distribution. After all, what conventional distributor would be willing to publish such an obvious lawsuit target?
Another aside: The people behind the film recognize the potential for even more innovative distribution.
Jim Gilliam, a 26-year-old former dot-com executive and a producer of ''Outfoxed,'' is enthusiastic about the way Greenwald's projects meld grass-roots politics with the culture of the Internet. He predicts a future -- augured by events like MoveOn's competition for the best 30-second anti-Bush advertisement -- in which young political filmmakers will be as likely to wield a camera phone as a digital camera. ''It won't be long before people will be shooting and editing short documentaries that they'll stream from their blogs,'' he says.Yep. Sounds like broadcatching.
Luckily, given all the major legal issues involved, Greenwald has Ubercyberlaw Prof Larry Lessig and others working with him on the copyright issues (outfoxed). Says Lessig,
As the Times article describes, Greenwald’s style for distributing documentaries may be the beginning of something new — political criticism, using interviews and clips, making a strong political point, distributed through DVDs and political action groups. (See some other examples here). On what theory does he, and others, have the right to use such material without permission? On the free culture theory we call the First Amendment: Copyright law must, the Court told us in Eldred, embed “fair use”; “fair use” is informed by First Amendment values; the values of the First Amendment most relevant here are those expressed in New York Times v. Sullivan. As with news-gathering, critical political filmmaking needs a buffer zone of protection against the overreaching of the law. And if the potential of this medium — now liberated by digital technology — is to be realized, we need clear precedents that establish that critics have the freedom to criticize without having to hire a lawyer first. [links in original]Indeed. Lessig's right:
Watch the movie. Celebrate the freedom it represents. It is a particularly American freedom that we should celebrate and practice more often.
FCC Chairman Michael Powell has launched a blog [As Dave Barry would say: I'm not making this up] (Michael Powell Joins the Blogosphere). So what does the chairman have to say in his first post? Well, he reiterates his commitment to deregulation, that is, when it doesn't upset entrenched interests too much.
Our struggle to define appropriate regulatory regimes to promote innovation is not limited to the telephone sector. The Commission's digital television transition is yet another example of how difficult the struggle can be.Yeah, the broadcast flag is really going to promote innovation. Why, just think of the useless technology developed because television was an open platform! To borrow some concepts from Prof. Frink, "I predict that, if the FCC were in charge of developing the VCR, that within 100 years a VCR will record twice as much programming, be 10,000 times larger, and so expensive that only the five richest moguls in Hollywood will own them."
For example, I need to hear from the tech community as we transition to digital television. It may be possible to deploy innovative wireless services in the unused spectrum between broadcast stations (for example, there is no channel 3 or channel 6 here in San Francisco)...Broadcasters, however, claim these unused channels as "their" spectrum. Yet a public policy that favors innovation and experimentation would seek to open these unused channels to develop new wireless services…just look at how much value has been created in the sliver of spectrum that has become Wi-Fi! If the high-tech community believes that new digital technologies will enable this kind of new thinking about and use of spectrum, then I need to know that.*ahem* Chairman Powell, it may be possible to deploy innovative television services based upon an open television platform. Broadcasters, however, claim that they must control and direct development of a closed platform, that the platform is "theirs" and requires a "broadcast flag." Yet a public policy that favors innovation and experimentation would seek to open the platform to develop new services…just look at how much value has been created in the open analog television platform! Many in the high-tech community believe that new digital technologies will enable this kind of new thinking about and use of an open television platform. *ahem*
Regulated interests have about an 80 year head start on the entrepreneurial tech community when it comes to informing regulators what they want and need, but if anyone can make up for that, Silicon Valley can. This is important not just for Silicon Valley—it's essential to insure that America has the best, most innovate communications infrastructure.You know, unless it upsets Hollywood. Because Hollywood will ensure that America has the best, most innovative communications infrastructure.
via JD Lasica
UPDATE
Jeff Jarvis has some harsh words for Powell's "blog" (Daily Stern - July 9, 2004).
A couple of weeks ago Eric Harrison wrote a head-to-head comparison of Windows Media Center Edition and TiVo. (TiVo versus Media Center Edition PC's - finally!). TiVo won, partly because the original Windows machine had all sorts of defects, but mostly because TiVo is a more solid performer. Paul Robichaux's comparison goes into more depth about the MCE (Media Center Eye for the TiVo Guy).
Jupiter Research analyst Michael Gartenberg looks at Harrison's comparison and adds some thoughts of his own, as JR is working on a report on standalone DVRs (Tivo comparison to Windows Media Center):
First, the PC is more flexible. If I want to store and view my pictures, music and other video content, burn to DVD, copy to a portable media player and stream that content to other devices in my home, I can do that with the PC and not with the TiVo. The MCE EPG is also more flexible. Try and record the West Wing on TiVO, just the 7pm episodes shown on channel 44, not the other boradcasts. You can't do it. It's a snap on MCE. (why would you want to? to record a series according to airdates so you can watch the episodes in order). On the other hand, my TiVO never crashed, locked up, missed a scheduled record or any other annoying issue. Clearly the dedicated funcitonality makes for a more stable platform. Part of the MCE experience issue is that it's still a PC. You still need to exit to the shell to get some things done. You need to re-boot from time to time. If MCE is going to make inroads in the next year it needs to be able to shed the PC experience and live 24/7 as a consume electronics device.Here are my thoughts. I already have a TiVo. I already have a PC. Most of the people who are considering buying a TiVo already have a PC as well. If the TiVo could simply talk to the PC, then they (and I) could get the benefits of consumer electronics reliability and the flexibility of a PC without having to buy a whole new, rather expensive PC.
So why don't DVRs offer this flexibility? They get sued into oblivion: EFF Archives: Newmark v. Turner Broadcasting System. Need I mention that the IICA (née INDUCE Act) will make bringing such company-resource-draining lawsuits easier? Or that, in a little less than a year, the government will burden such capability with mandatory DRM: Digital Television Liberation Front?
A little over a week ago, I discussed how the IICA (née INDUCE Act) might end up extending the already overbroad Broadcast Flag Treaty (INDUCE Act + Broadcast Flag Treaty = ???). Today I continue my series on how various aspects of the copyright law may interact with the INDUCE Act by discussing the FCC's domestic broadcast flag regulation. Read on...
First, a caveat. Although the broadcast flag walks like copyright regulation and quacks like copyright regulation, the FCC assures us it is not copyright regulation and makes no changes to copyright law. This is good, because the FCC doesn't have authority to regulate copyright (FCC Sued Over Broadcast Flag - Yay! and Significant Procedural Victory in Broadcast Flag Lawsuit).
Anyway, since the broadcast flag is not actually copyright law, the INDUCE Act will not directly affect it. However, enforcement of the broadcast flag will certainly be affected. After all, in its order, the FCC found (among other things) that (Report and Order and Further Notice of Proposed Rulemaking):
We recognize that piracy concerns are likely to be addressed through a number of approaches, including consumer education, law enforcement, and changed business models. In order to effectively address these concerns, however, we believe that technological steps must be taken now before the DTV transition matures any further. [emphasis added]If a company violates the broadcast flag, not only will they be in trouble with the FCC, but the FCC's findings in the broadcast flag report will be cited as evidence against them in an INDUCE Act infringement suit. Reasonable men would have taken the FCC's findings into account, wouldn't they? And the government wouldn't be wrong about the steps that "must be taken" to reduce piracy, would they? Thus, violators of the broadcast flag regulations will not only get FCC fines, but would likely be easily nailed by a subsequent civil infringement lawsuit (with its massive penalties). Ouch.
Also, imagine if we are lucky and the courts force the FCC to abandon broadcast flag regulation. This wouldn't happen for months. In the meantime, many companies are gearing up to produce HDTV equipment that meets broadcast flag requirements. Indeed, some companies are already selling such compliant equipment and would continue to do so even in the absence of FCC requirements. However, what happens to the companies that decide not to go along with the broadcast flag regulations once they are eliminated? Again, the FCC's own findings would be used as evidence in an INDUCE Act case against those who don't play along with broadcaster's DRM fantasies. The INDUCE Act might be enough for the copyright holders alone to force consumer electronics companies into compliance with the broadcast flag, even if the FCC couldn't require it.
Another possible effect of the broadcast flag regulation in light of the INDUCE Act is that the Act may close the broadcast flag export loophole (Broadcast Flag Loophole Watch - Manufacture for Export). If the broadcast flag regulations are necessary domestically, I'm not sure why they wouldn't be similarly necessary for those devices exported overseas. Now, maybe the FCC doesn't see why we should cripple our sales to countries overseas, but why should Hollywood be so reticent? After all, we know what all those lousy Canadians who live near the border will do with their HDTV tuners ... they'll capture US HDTV video signals and pirate them!
The WIPO Treaty for the Protection of Broadcasting Organizations would basically give copyright protections (fixation, reproduction, distribution, DMCA) to broadcasters, cablecasters and, if the US gets it way, webcasters (whatever that means). Read more about this dangerous draft treaty here: The Broadcast Flag Treaty - Draft Available.
The WIPO treaty doesn't call for anything like the INDUCE Act, but to implement it, the US would basically have to extend most basic copyright law (and the DMCA) to cover broadcasts. What do you think? Will Congress revisit and change copyright law to apply it to broadcasters, or will Congress basically port over everything in copyright law to the new broadcast rights law? If the US signs the Broadcast Flag treaty, you don't think that broadcasters would get less protection do you?
Yep, yet another reason to make sure the INDUCE Act doesn't pass.
Prof. Susan Crawford reports good news regarding a court challenge to the broadcast flag (Broadcast flag order).
Several groups, including the American Library Association, Public Knowledge, Consumers' Union and others, have challenged the FCC's jurisdiction to issue the broadcast flag rule. A very short version of the argument is that Congress didn't give the FCC carte blanc to regulate all consumer electronics that might have to deal with a video signal. Anyway, the FCC claimed that the court should wait to hear the challenge until the FCC has considered requests to make the existing rule even more aggrandizing. The court has rejected that argument and ordered the case to continue undelayed. Read the one page court order: American Library Association v. Federal Communications Commission [PDF].
Andrew Grumet: "The XML button is the anti broadcast flag."
Caveat: I think that using the XML button for too many things can lead to confusion, but I definitely agree with the sentiment.
The main justification for the broadcast flag is that without some form of protection broadcasters won't provide high value content on HDTV. See, In the Matter of: Digital Broadcast Content Protection [PDF]:
Content owners and broadcasters uniformly assert that DTV broadcast content must be protected and that, in the absence of some protection mechanism, high value content will be withheld from broadcast television and migrate to pay services.
Okay, let's skip for the moment the fact that this assertion doesn't make a lot of business sense for the broadcasters, that the broadcast flag won't stop HDTV distribution on the internet anyway, that the content producers haven't withheld content from other distribution channels (DVDs) that allow for massive internet redistribution, there is no definition of what is "high value content" (Average Joe Millionaire's Apprentice Big Brother Marries an Extreme Makeover Survivor on Temptation Island?), that the broadcasters make no promises to provide such content even if there is a broadcast flag, and simply note that the FCC has rather gullibly accepted this assertion. If the broadcasters said it, it must be true.
Now, some CBS News stations are claiming that they will stop covering live news outside the so-called safe harbor for indecency Some CBS Affils Could Drop Live News:
CBS affiliates are telling the Federal Communications Commission that unless it changes its ruling about profanities on-air, many will have to stop doing news outside of the 10 p.m.-6 a.m. safe harbor for indecent speech.
So, I've been doing a lot of thinking about the FCC's indecency enforcement lately, and it just struck me how the broadcast flag will inhibit enforcement of the prohibition on obscene, indecent, or profane depictions on broadcast.
According to the FCC's page for indecency complaints (Obscene, Profane & Indecent Broadcasts), complainants are asked to provide the following:
Information regarding the details of what was actually said (or depicted) during the allegedly indecent, profane or obscene broadcast. There is flexibility on how a complainant may provide this information. The complainant may submit a significant excerpt of the program describing what was actually said (or depicted) or a full or partial recording (e.g., tape) or transcript of the material.
In whatever form the complainant decides to provide the information, it must be sufficiently detailed so the FCC can determine the words and language actually used during the broadcast and the context of those words or language. Subject matter alone is not a determining factor of whether material is obscene, profane, or indecent. For example, stating only that the broadcast station “discussed sex” or had a “disgusting discussion of sex” during a program is not sufficient. Moreover, the FCC must know the context when analyzing whether specific, isolated words are indecent or profane. The FCC does not require complainants to provide recordings or transcripts in support of their complaints. Consequently, failure to provide a recording or transcript of a broadcast, in and of itself, will not lead to automatic dismissal or denial of a complaint. [emphasis in original]
Although a recording is not strictly required, obviously it would be very useful to have one when making a complaint. "Did I just hear/see what I thought I heard/saw? Let's go to the tape (or more likely, the hard drive)." However, if copying the broadcast is prohibited (as enforced by the FCC itself), it will be very difficult for average citizens to make recordings to make transcripts and to bolster their complaints about indecency.
I can imagine broadcasters inhibiting copying of "racy" shows in order to reduce the possibility of being fined for indecency violations. Heck, I can imagine broadcasters having "do not record buttons" in place of "bleeping." That way, when someone displays something on broadcast the FCC might think they shouldn't, the broadcaster can ensure that no copy is made by the average citizen.
Of course, who expects the FCC to be consistent and have coherent policies?
Well, the official NOI isn't available publicly yet - a spokesperson for the FCC said it would be available on the internet in a couple of days. Of course, that doesn't stop them from putting out a press release: FCC Explores Rules for Digital Audio Broadcasting [PDF].
As rumored, the FCC is going to start the process for considering a broadcast flag rule for digital radio (among a lot of other changes as well):
Subjects raised for comment in the Notice of Inquiry include digital audio content control and international issues.
The subtitle of the press release is: "Goal is to Promote the Introduction of Digital Radio Services for Americans."
That sounds awfully similar to what they said about the television broadcast flag. I'll provide full details on the NOI when it is available.
Public Knowledge's President, Gigi Sohn, has an op-ed in C|Net News today on the FCC's digital media/broadcast flag powergrab (FCC is taking wrong turn on digital media). She points out a couple of the dumb things the FCC plans to do with their claimed power to regulate digital media. However, if the FCC gets away with the broadcast flag, imagine all the dumb ideas content providers will try to foist upon us.
Read on...
For example, Engadget notes that a company called MyDTV has gotten $7 million in financing to provide pop-up ads on television programming (Pop-ups coming to digital TV?). From the company's website:
A Mel Gibson fan is watching a news program. An on-screen message recommends the viewer watch "Mad Max Beyond Thunderdome," which will air on a PPV channel in one minute. The viewer may then choose to click on the alert to tune to the movie. The viewer is happy because he saw a recommendation to see his favorite actor and is willing to pay the $3.95 to watch the movie as a result.
or
Let's say a Jennifer Aniston fan is watching a news program. An on-screen promotion alerts that viewer that Jennifer will be interviewed on your channel in one minute. The viewer may click on the promotion to tune to the interview. The viewer is happy because he saw his favorite TV star, and your ratings improve as a result.
Just what we need. Pop-ups for television. Now, this isn't necessarily a bad idea, but to have it imposed by the gatekeeper distributer is a bad idea. I would be interested in such a service, if it were based on open standards and I could subscribe only to those notification services that I trusted, just as I subscribe to the RSS feeds I am interested in. Will the FCC allow such a system to be built on top of the broadcast flag? Unlikely, especially when the broadcasters undoubtedly complain and threaten to withold valuable content.
PVRblog reports on cable operators struggling to promote Video-on-Demand (VoD) in the face satellite TV's major PVR push (PVRs: satellite vs. cable). According to Television Week, "only 38 percent of cable subscribers are aware that they can get DVR service from their cable operators, compared with 78 percent of satellite customers" (Cablers Start a Fire Under VOD Plans). So what is the response from cable operators? Are they promoting their PVR services more? No, that would empower consumers too much. Instead cable operators are (in PVRblog's helpful summary):
I had to read the last sentence of the TV Week article twice. "'If we do our job [by providing VoD niche magazines] ..., people will think twice about leaving for satellite,' he [a regional VP with Mediacom] said." I originally thought the quote said "If we do our job ... people won't think twice about leaving for satellite."
Video on Demand is, apparently, the sort of innovation the FCC supports, as they are doing their best to cripple DVRs.
Well, technically, the treaty is called the WIPO Treaty for the Protection of Broadcasting Organizations, cuz heaven knows they're all faced with extinction. The draft treaty will be discussed June 7-9 by WIPO's Standing Committee on Copyright and Related Rights (SCCR), which will then "decide whether to recommend to the WIPO General Assembly in 2004 that a Diplomatic Conference be convened." A diplomatic conference can adopt a treaty. The treaty will not go into effect, however, until a certain number of countries have acceded to it. The draft of the treaty is available here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].
This treaty is really a nasty bit of work. It will give broadcasters, not copyright holders but broadcasters, a number of exclusive rights in their broadcasts, such as fixation, reproduction and distribution, whether or not the broadcast is of a public domain work. Moreover, the treaty would require signatories to prevent circumvention of those rights.
Oh yeah, the treaty would also apply to "cablecasters" and the United States (all alone on this one, apparently) wants the treaty extended to cover "webcasters." What exactly constitutes a webcaster isn't entirely clear, perhaps only streaming, perhaps HTTP. While the US is not a signatory to the previous treaty on broadcast, our efforts on negotiating this one indicate we are likely to sign on.
Read on for a look at this monstrosity...
Background
EFF's Consensus at Lawyerpoint, an anti-broadcast flag blog, reported on the origins of this treaty back in August 2002 (Europeans push WIPO Broadcast Treaty to create "fixation rights"). Last October James Love, director of the Consumer Project on Technology, wrote (with comments and suggestions from EFF's Cory Doctorow) an excellent analysis of an earlier draft of the treaty ([DMCA-Activists] On the Proposed WIPO XCasting Treaty). CPTech maintains a website tracking the treaty (The proposed WIPO Treaty for the Protection of the Rights of Broadcasting, Cablecasting and Webcasting Organizations).
Sui Generis Copyright-like Protection for Broadcasts
The treaty would give (among others) the following rights to broadcasters, cablecasters and, if the US has its way, webcasters: fixation, reproduction and distribution. Of course, there is no limit on what is covered by the treaty, as long as it is "broadcast" and consists of "sounds or of images or of images and sounds" (although why they couldn't just say "images and/or sounds" is beyond me). In other words, broadcast of public domain works like Dawn of the Dead would be covered along with works for which the broadcaster owns the copyright. Heck, you could start a radio station that exclusively broadcast Creative Commons-licensed freely distributable works and keep anyone from recording your broadcast.
Why bother with copyright? Simply "broadcast," or in the US's version, "webcast" all your material. Instead of connecting to an FTP server to get video or music you would connect to an ongoing "webcast" of the media, so that way, the broadcaster can keep control of the media even if it isn't copyrightable.
Article 8
Right of Fixation
Broadcasting organizations shall enjoy the exclusive right of authorizing the fixation of their broadcasts.
No more VCR, DVD-R or TiVo for you. So much for time shifting. Goodbye Sony v. Universal, it was nice knowing you.
This is the mandated broadcast flag. If the broadcaster doesn't want you recording it, you don't have a right to.
Article 9
Right of Reproduction
Alternative N
Broadcasting organizations shall enjoy the exclusive right of authorizing the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts.
Alternative O
(1) Broadcasting organizations shall have the right to prohibit the reproduction of fixations of their broadcasts.
(2) Broadcasting organizations shall enjoy the exclusive right of authorizing the reproduction of their broadcasts from fixations made pursuant to Article 14 when such reproduction would not be permitted by that Article or otherwise made without their authorization.
More broadcast flag goodness. Even if you are allowed to record it, the broadcaster can control how you can reproduce it. That way, if you want to shift the latest Sopranos from the TiVo in the living room to your laptop to watch on the plane, the broadcaster can stop you.
The US and, for some reason, Egypt support alternative "O", which protects broadcasters from reproductions of unauthorized fixations.
Article 10
Right of Distribution
Alternative P
(1) Broadcasting organizations shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of fixations of their broadcasts, through sale or other transfer of ownership.
(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the fixation of the broadcast with the authorization of the broadcasting organization.
Alternative Q
Broadcasting organizations shall have the right to prohibit the distribution to the public and importation of reproductions of unauthorized fixations of their broadcasts.
In other words, no filesharing of broadcasts. Don't you dare make the fixation you made of ABC's broadcast of the President's State of the Union address (SotU) available on KaZaA.
Article 11
Right of Transmission following Fixation
Broadcasting organizations shall have the exclusive right of authorizing the transmission of their broadcasts following fixation of such broadcasts.
Don't webcast what you've saved previously. Not only can't you put your fixation of the SotU on KaZaA, you won't be able to webcast it either.
Now, governments can make the same exceptions to these broadcasting rights as they "provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works." But they don't have to. Nor is it clear to me, under recent copyright decisions, that the Constitution requires the US to do so.
Term of Protection and Formalities
Article 15
Term of Protection
The term of protection to be granted to broadcasting organizations under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which thebroadcasting took place.
Great. Copyright isn't long enough we have to provide protection for the broadcasts for fifty years in addition? So, forty years from now, when your grandchildren want to use a clip from television today to illustrate a report on the popular culture of their grandparent's era, they'll have to clear permissions with the television station that broadcast the clip (assuming we still have television stations then).
The previous treaty had a length of twenty years and, as we all know, broadcasters in countries that signed the treaty have suffered greatly from this length.
Article 18
Formalities
The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality.
No pesky registration requirements or anything. That way it is very difficult for people to know who owns the rights to what decades from now.
DMCA for Broadcast Flag
Article 16
Obligations concerning Technological Measures
(1) Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by broadcasting organizations in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their broadcasts, that are not authorized or are prohibited by the broadcasting organizations concerned or permitted by law.
Alternative V
(2) In particular, effective legal remedies shall be provided against those who:
(i) decrypt an encrypted program-carrying signal;
of the broadcasting organization that emitted it;(ii) receive and distribute or communicate to the public an encrypted program-carrying signal that has been decrypted without the express authorization
(iii) participate in the manufacture, importation, sale or any other act that makes available a device or system capable of decrypting or helping to decrypt an encrypted program-carrying signal.
Alternative W
(2) [No such provision]
This is the equivalent of the passage in the WIPO Performances and Phonograms Treaty (WPPT) that the US used as one of the justifications for the passage of the DMCA. So, not only does this treaty require a broadcast flag, it will be illegal to circumvent it.
Article 17
Obligations concerning Rights Management Information
(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute or import for distribution fixations of broadcasts, to retransmit or communicate to the public broadcasts, or to transmit or make available to the public fixed broadcasts, without authority, knowing that electronic rights management information has been without authority removed from or altered in the broadcast or the signal prior to broadcast.
(2) As used in this Article, “rights management information” means information which identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast, and any numbers or codes that represent such information, when any of these items of information is attached to or associated with 1) the broadcast or the signal prior to broadcast, 2) the retransmission, 3) transmission following fixation of the broadcast, 4) the making available of a fixed broadcast, or 5) a copy of a fixed broadcast being distributed to the public.
And don't try to make your copy of the broadcast of the State of the Union look like a legal, unbroadcast version.
Article 21
Provisions on Enforcement of Rights
(1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.
(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights or violation of any prohibition covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.
Many people argued that the WPPT didn't require the US to pass the DMCA, as Congress concluded, because the US already adequately protected the rights of copyright owners. As the US doesn't protect any "broadcast" rights (other than some "theft of service" stuff), this provision would pretty much require a US Broadcast Flag DMCA law to be passed.
Conclusion
This is bad, bad, bad. What more can I really say?
Donna Wentworth has made her blog, Copyfight, a must-read since its beginning. That is why I am honored to join her and some most excellent colleagues in continuing Copyfight as a group blog. I will be posting along with Elizabeth Rader, Jason Schultz, Aaron Swartz, and Wendy Seltzer. Read the greeting message: Copyfight--the Expanded Edition. The blog description:
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development and technological innovation that creates--and will recreate--the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.
I'll continue to post here, of course, especially my longer pieces.
The big news this morning is that EFF, Public Knowledge, Consumer Federation of America, Consumers Union and five library associations led by the American Library Association have filed a lawsuit against the FCC to block the broadcast flag. Read the press release: FCC Faces Suit on Regulation of Digital Broadcast Television. Read the statement of issues: ALA v. FCC, Statement of Issues [PDF].
The only document available is really quite short with only four issues raised:
1) Whether the Commission exceeded its statutory authority under the Act [Communications Act of 1934, which created the FCC] by imposing content redistribution control regulations on equipment manufacturers, including without limitation, whether the Commission erred in interpreting the scope of its ancillary jurisdiction under the Act.
2) Whether the Commission exceeded its jurisdiction by establishing a regulatory scheme that restricts the copying of copyrighted content even though the Commission has not been given any such authority by the copyright laws.
3) Whether the Commission's decision to prescribe the broadcast flag and other findings in the proceeding were supported by substantial evidence in the record, including without limitation, evidence of the the need for the broadcast flag and its costs and benefits.
3) [sic] Whether the Commission acted arbitrarily and capriciously in violation of the Administrative Procedure Act in concluding that the broadcast flag was an appropriate method of DTV broadcast content protection given the acknowledged weakness of broadcast flag technology and the costs and benefits of the broadcast flag.
Unfortunately the third and fourth issues are really longshots. Government agencies have much discretion in these sorts of decisions. Even if their logic is seriously flawed, they generally get away with making bad calls.
However, the statutory authority questions are much stronger. Without more documentation, I can't really judge them, but if the broadcast flag is blocked, it will likely be because the FCC doesn't have the authority to require it.
Here's hoping the lawsuit does succeed!
Video Business Online (reg. req.) reports on the latest efforts by Hollywood to take control of all devices that connect to a television (Analog Hole Creates a Chasm for Studios). The tagline is: "Execs say gap between playback and display devices impedes new business." Video Business Online is an industry rag, so you can't expect them to be entirely unbiased. The proper tagline should have been: "Hollywood Execs say impeding new business only way to save old business."
Not satisfied with the broadcast flag existing requirements, Hollywood is calling for even more restrictive standards including requiring that display devices also include DRM. No video on your legacy television or PC LCD for you:
In comments expected to be filed this week with the Federal Communications Commission, the studios will ask government regulators to allow content owners to include "selectable output control" in the implementation of the broadcast flag, Fox senior VP of content protection Ron Wheeler said.
The studios want the flag to signal receiving devices to turn off certain kinds of outputs unless those outputs are compatible with studio-approved copy protection technology.
If the FCC doesn't have the authority to do this, "the studios may seek special legislation this year that would grant the FCC the authority." Additionally, the studios want to ensure that DRM is upgradeable, so that when it is cracked (as is inevitable), software can be updated to new and improved DRM.
I am somewhat optimistic that the FCC won't condone this foolishness. Can you imagine the outrage if the FCC required every new HDTV reciever to be incompatible with every analog TV in America? On the other hand, I wouldn't bet against the FCC kowtowing to television broadcasters, particularly in an election year and especially if the requirement will only take effect a year after the election.
C|Net News reports that Major League Baseball is having difficulty getting a premium for internet "broadcast" rights (MLB throws high heat at Web portals). I put the term "broadcast" in quotes, because the internet doesn't really support broadcast. As Dana Blankenhorn writes on Corante blog Moore's Lore, MLB wrongly expects the internet to recapitulate television broadcast (Prove It).
The problem for MLB is not simply that broadband adoption rates aren't great and streaming video is pretty weak, but that the internet reduces (though it has not yet eliminated) distribution bottlenecks. Under today's regime, each of the television networks is a government telecomm regulations created portal. Because there is such a limited number of these television portals, they receive more traffic than they would in a more open distribution system. Consequently, the networks are willing to pay MLB more than they would otherwise be willing to pay under an efficient, open system.
On the internet there are portals, of course, but there are many fewer limitations on distribution. Thus, there aren't "networks" and most attempts to create them have pretty much failed. Remember go.com? Sure, MSN and AOL still have network-like elements, but as tools that help people aggregrate their preferred content (such as RSS) develop, the idea of a network of content determined from the top down begins to look a bit silly. MLB will be able to charge for their content (how much I'm not sure), but they won't be able to get subsidies from a top down network. If MLB is smart they will work on ways to ease the aggregation of their content with other content their audience will like.
However, I'm not really all that interested in how the MLB can thrive on the internet. What strikes me in this story is how inefficient broadcast television is. The lesson here is not that MLB doesn't get it. The lesson is that we have massive ineffiencies in our telecommunication regulation policies when it comes to broadcast television. The strange (though not unexpected) thing is, the FCC seems blind to them. In a recent speech, FCC Chairman Michael Powell came out strongly against regulating the internet and protecting the open nature of the network (Preserving Internet Freedom: Guiding Principles for the Industry [PDF]).
There is much to praise in these principles. Too bad there is no mention of applying them to broadcast television.
Here are some of the principles:
The broadband providers argue that without the ability to control access as well as determine what applications and personal devices may be used, they will be unable to make sufficient profit to continue rolling out broadband. Indeed, they won't roll it out. However, these arguments are bogus, and Powell is right to reject them. Of course, these are the same arguments used by the broadcasting industry with regard to HDTV. There, apparently, these arguments make sense. Of course, it would have been nice to call the bluff of the existing broadcast networks. If they didn't want to use the HDTV frequencies (afeard o' piracy), the FCC should have offered to transfer the frequencies to someone who would use them without forcing additional ineffiencies on the market.
It is great the Powell wants to preserve freedom on the internet. Too bad he is not consistent when it comes to broadcast television.
Using a TiVo is a conversion experience. It transforms the way you interact with broadcast media and creates entirely new expectations regarding entertainment, even more so, in many ways, than MP3 players. This is why I am excited by a number of reports this week regarding personal media recorders, such as a story in Newsday that notes a high demand for DirecTV set-top boxes that include TiVo (TiVo-Based Set-Top Boxes in High Demand).
I'm excited because everyone I know who uses TiVo won't go back to traditional television viewing. Simply using TiVo creates consumer expectations that are going to run smack dab into the anti-consumer mandates of the broadcast flag. Sure, the FCC says that the broadcast flag won't inhibit uses consumers have today, but it does and will. People habituated to the ease of use of TiVo, of burning shows to DVD, of networking television throughout the home, are in for a rude awakening when the broadcast flag takes effect. Frankly, there are going to be some seriously inconvenienced consumers come July 2005 and I would hate to be the politician on the other end of their anger. I can see the bumper stickers now: The FCC can have my TiVo when the pry it from my cold dead fingers.
Of course, the more people habituated to TiVo, the bigger the resulting backlash, which is why I recommend giving TiVos as holiday gifts for all your TiVo-less friends and family (there is a good chance it will be the best gift they get this season). I'm not really a big believer in consumerism ... but sometimes consumerism and activitism go hand in hand.
Of course, I'm using TiVo in the generic sense. Add the homemade touch (like those holiday cards you made from posterboard, glue and sparkles in elementary school) by building your friends an open source TiVo (Freevo, MythTV, KnoppMyth, XMLTV). By the way, MythTV explicitly supports the pcHDTV card and undoubtedly will support software HDTV as well (GNU Radio: Hacking the RF Spectrum with Free Software and Hardware).
Susan Crawford offers an interesting take on her blog regarding the FCC's lack of authority to mandate the broadcast flag (New tack on the broadcast flag). Her take is certain to be popular in Hollywood as it analogizes the copyright industries to the tobacco industry:
[I]f FDA cannot regulate cigarettes, FCC cannot regulate consumer electronics devices.
The case Crawford is referring to is FDA v. Brown & Williamson Tobacco Corp., in which the FDA claimed the ability to regulate cigarettes, but was shut down because, among other reasons, "It is highly unlikely that Congress would leave the determination as to whether the sale of tobacco products would be regulated, or even banned, to the FDA’s discretion in so cryptic a fashion." Similarly, it seems rather odd that Congress intended the FCC to regulate the consumer electronic and computer industries without a clear mandate.
Indeed, for the first time, I must praise the anti-circumvention aspects of the DMCA. Section 1201(c)(3) of the DMCA states that:
[n]othing in this section shall require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part of component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).
This is the anti-mandate provision of the DMCA, which was part of the compromise that resulted in the passage of the bill. How odd that the consumer electronics industries would have signed on to this compromise if what it really meant was that the FCC could mandate anyway. In addition, section 1201(k) explicitly regulates certain copy protection measures for analog broadcasts. Had Congress intended for the FCC to mandate digital copy protection for broadcast, you think the DMCA might have mentioned it.
This is just a brief analysis. Hopefully, the consumer electronics and computer industry lawyers are putting together something much more devastating to the FCC's case.
Thank goodness! The TiVo-addict friendly PVRBlog reports that HDTV-capable TiVos will be available for sale the first quarter of 2004 (HDTV-recording TiVo). See a picture of the device here: TiVo HD DVR. What this means, of course, is that such devices will be available without broadcast flag implementation, at least until July 2005, as many of the commentators on PVRBlog note.
Interestingly, PVRBlog is selling a home-modified TiVo (extra capacity, wireless connectivity) on eBay (Upgraded Series 2 188hr TiVo, HMO & wireless). Pretty good price right now, too. Unfortunately, under the current regime we won't be seeing too many home-modified devices after July 2005.
via Gizmodo
The Detroit News reports that the FCC is planning to deny "dual must carry" for television broadcasters (FCC won't require cable operators to carry digital TV shows). Under "dual must carry" the cable companies would be required to carry both the analog and HDTV signals from the television networks. Without "dual must carry" the broadcasters would have to decide which signal the cable company carried. If they insisted on the analog signal, the majority of Americans who receive television via cable would have no incentive to buy HDTV systems. If the broadcasters insisted on the HDTV signal, they would lose the majority of Americans who do not have HDTV receivers yet.
The broadcasters are stuck between a rock and a hard place. It was precisely the difficulty of the transition that was one of the main justifications for giving broadcasters additional bandwidth so that they could continue to broadcast analog and HDTV at the same time. Apparently, this is far too burdensome on the cable companies:
"Commissioners seem to think there'd be too much of a burden on cable without sufficient public benefit," said Blair Levin, an analyst with Legg Mason Wood Walker Inc. who was an FCC chief of staff.
Funny, the commissioners didn't seem to care about the burden on the consumer electronics or personal computer industries (not to mention the consumers themselves) when they mandated the broadcast flag. Really, which is more burdensome, forcing cable companies to carry a few more channels or seizing control over huge swaths of the hardware market? I think the answer has more to do with which industry has the most effective lobbyists in the FCC. Really, who has the most effective lobbyists in the FCC, the cable companies that have had to deal with and capture lobby the FCC for decades or the consumer electronics and computer industries which have relatively seldom had to deal with mandates like the broadcast flag?
So, not only do we get the broadcast flag, the FCC delays the transition to HDTV once again. The consumers and citizens benefit from this inconsistency, how?
via Smart Cog
Rep. Zoe Lofgren (D - San Jose, CA), has written a nice commentary castigating the FCC's broadcast flag ruling in the Mercury News (FCC rule could harm tech innovation). Let's only hope that representatives for places other than Silicon Valley will take a similar consumer and citizen-friendly position.
The very interesting Mark Evanier has purchased one of the new TiVo's with recordable DVD which I wrote about a couple of weeks ago (TiVo is Officially an Endangered Species?). He has written a fairly substantial review from his personal experience with the device (Toy Story). His opinion is mostly positive, though there are some v1.0 issues. Overall, though, this is the device that any TiVo lover will want (and everyone who has actually used a TiVo loves it). Forget HDTV ... this is the future of digital television, if only the FCC would recognize the fact and get out of the way.
via Gizmodo
Gizmodo reports that Sony's new personal video player will soon be available in Japan (Sony's Personal Video Player is a reality). The device can hold 31 hours of video and can be uploaded via USB 2.0. No word on when the device will be available in the US, but hopefully before the broadcast flag mandate takes effect.
Washington Post Fast Forward columnist Rob Pegoraro has written quite an attack on the FCC's Broadcast Flag mandate (FCC Deserves a Digital Thanks for Nothing). This is a reporter who gets it:
The Federal Communications Commission has figured out how to make digital television more appealing to the millions of consumers who haven't bought into it: Force manufacturers to make hardware that's less capable than what's sold today.
Arnold Kling is mad as hell and he isn't going to take it anymore (Broadcast Flag This). He is calling for massive civil disobedience against the FCC with regard to the Broadcast Flag (An Open Letter to Jack Valenti). However, his idea of disobedience is not to hack the flag, but rather to hack the spectrum. Kling is calling for the public to use the assigned HDTV frequencies for Spread Spectrum Wireless in order to really revolutionize distribution:
By re-allocating spectrum from HDTV to wireless IP, we can kill two legacy birds with one stone. We can hasten the demise of the phone companies--because with a wireless "last mile" the wireless Internet can replace traditional land lines and cell phones; and we can show Jack Valenti, the movie industry, and the television industry what it really means to "score a big victory for consumers."
Nifty idea which I support, however, I'm just not sure how practical it is. Where will I get the hardware and software to do this?
Yesterday, C|Net News took a look at Toshiba's advances in small hard drives for portable devices (Tiny Toshiba drive gets a boost). These hard drives, which are only 1.8" in diameter, about the size of a credit card, can now store 40GB of information. They may already be used in the iPod and similar Hitachi drives are being used in Dell's new Digital Jukebox MP3 players. 40GB can store approximate 6 full-length movies or dozens of hours of television - all in something that fits in a shirt pocket. Heaven forbid that such innovative uses develop without the not-so-friendly regulatory arm of government controlling that development. Just how successful would the Diamond Rio have been if it had needed FCC approval first?
Gizmodo points out how Nokia's new television/cellphones may have a significant surcharge (~$190) due to government regulation (Nokia's TV phone might cost a little extra). The Broadcast Flag? No, this surcharge is due to the license tax that many European countries charge for owning a television. At least in most European households you only have to pay the tax once, no matter how many televisions you own. In the US, the new Broadcast Flag tax will require you to pay for the additional equipment for each and every television you own.
Gizmodo points out a truly nifty little product - an external TV tuner with a USB connection that you can use for your PC or laptop (New external USB TV tuner from Canopus). The system comes with software that will let you record your favorite shows... for now. I wonder how much more expensive the device will be after July 1, 2005. I also wonder how difficult it will be after July 2005 to transfer shows from your laptop (copied while on the road) to your legacy home network - the answer according to the FCC will be "impossible for the average consumer."
C|Net News' Declan McCullagh analyzes and reports on the FCC's broadcast flag mandate (Are PCs next in Hollywood piracy battle?). He notes the major and unprecedented impact this will have on PC design and manufacture. For the first time, the government is mandating how PCs may operate and how they may be networked. Those PCs that do not comply with the FCC's mandates will have to be crippled in their ability to use certain types of information. What a wonderful, freedom-enhancing action the FCC has taken. If this is the cost of HDTV, then give me analog television. Heck, give me black and white.
Prof. Ed Felten makes a good point on Freedom to Tinker about the FCC's justifications for the Broadcast Flag - they are incoherent (The Broadcast Flag, and Threat Model Confusion). The justifications for the broadcast flag and the effect of the broadcast flag are tangentially related at best. In the words of the FCC, "the broadcast flag seeks only to prevent mass distribution over the Internet." Additionally, according to the FCC, "consumers’ ability to make digital copies will not be affected."
Whether or not you agree with the justifications is not the question. The issue is whether the means the FCC has chosen are suited to the justifications. As Felten points out, they are not. The action the FCC has taken will not significantly, if at all, "prevent mass distribution over the Internet." It will, however, impede the average consumer's ability to make copies for friends and family.
Surely the FCC realizes this. If not, they must be stupid. The only other reason for the FCC to make such a statement, then, is to disguise their true intentions, that is, to dissimulate. In reality, the FCC should be saying that "the broadcast flag seeks only to prevent consumers from easily making copies for friends and family." However, such honesty would be a hard sell politically. It is much easier to demonize internet distribution than to tell people they shouldn't make copies for friends and family.
However, see also Seth Finkelstein's infothoughts on the matter (Broadcast Flag - desecration).
Okay, so I've been reading the FCC's Broadcast Flag requirements and I've noticed what appear to be a couple of potential loopholes for those interested in maintaining consumer rights past the July 1, 2005 deadline (Report and Order and Furt