IP: Digital TV, copy control and public po9licy

[David Farber <dave () farber net>]

> Date: Mon, 06 Aug 2001 12:10:46 -0400
> To: farber () cis upenn edu
> From: Jonathan Weinberg <weinberg () mail msen com>
>
> At 01:28 PM 8/5/2001 -0400, Mikki wrote:
> > > Lauren's mention of the restrictions regarding fair use rights to record 
> > > digital content are right on the mark.  I recently began investigating 
> > > how I could record digital (or for that matter analog) content directly 
> > > from satellite transmissions, or even from my own antenna.
> > > The equipment to do this USED to be available in the US, but apparently 
> > > pressure brought by the MPAA and others resulted in its being pulled 
> > > from the market.  Panasonic made a high definition decoder that 
> > > connected via firewire to a D-VHC VCR.  This setup would allow for 
> > > recording in HD (or analog) from your home antenna.  In combination with 
> > > a now also discontinued Dish Network receiver, recording of satellite 
> > > signals was possible.  Dish was pressured to encode the output of their 
> > > HD receiver in order to make this practice difficult if not impossible.
>
>
>         Dave -- Here's an excerpt from a short paper I just wrote about 
> the FCC's approval of the plan under which content owners will control 
> consumers' ability to copy digital TV programming received via the cable 
> box (entire paper at <http://www.law.wayne.edu/weinberg/digitaltv.pdf>). 
> -- Jon Weinberg
>
>
> At the outset of the FCC’s ill-starred effort to roll out digital TV, MPAA 
> and other content owners made it clear that they were troubled by the 
> prospect of a consumer’s hooking up some sort of player/recorder to his 
> TV, the same way we hook up VCRs today, and exporting clean digital copies 
> of movies and TV programming. Traditional copyright law says that 
> consumers are allowed to make such copies up to the limits of fair use. 
> But MPAA sought a technical solution, so that it would not be bound by the 
> substantive and enforcement limitations of statutory copyright law. The 
> solution it came up with exactly paralleled the CSS plan it had already 
> used for DVDs.
>
> The FCC in 1998 had ordered a new cable-box architecture, in which a 
> digital cable converter box’s “ancillary” functions ­ channel tuning, 
> remote control, video program guide access, etc. ­ are separated from its 
> access control technology, whose purpose is to prevent the consumer from 
> viewing programming she hasn’t paid for. Digital boxes providing the 
> ancillary functions are produced by consumer-electronics manufacturers and 
> sold in a competitive market, rather than being supplied by cable 
> operators to subscribers as part of the subscription. The cable operators, 
> for their part, provide the descrambling (access control) technology as a 
> plug-in module for the third-party cable boxes. In order to watch 
> scrambled programming, the consumer must insert a security module provided 
> by the cable operator into her third-party cable box.
>
> In order for these markets to operate, though, there must be a standard 
> interface between the security module and the cable box (or other device 
> receiving the security module, such as a cable-ready TV or VCR) . That 
> interface was developed, with the FCC’s blessing, by CableLabs, a joint 
> venture that serves as the research arm of the cable industry. The 
> interface includes an encryption feature known as DFAST (Dynamic Feedback 
> Arrangement Scrambling Technique). The gist of the DFAST technology is 
> this: Imagine that a set-top box receives a scrambled HBO signal. It 
> passes that signal to the security module, which checks whether the 
> subscriber is authorized to get HBO, and, if so, unscrambles it. It then 
> rescrambles it, purely for the duration of the signal’s trip back to the 
> set-top box, and the set-top box finally removes the new scrambling using 
> technology it has licensed from CableLabs. That license, however, comes 
> with certain conditions.
>
> The license provides that digital programming will be marked with 
> instructions from the content provider to allow zero, one or unlimited 
> copies of the particular work. If the work is marked as “copy never,” the 
> licensed device must be designed to prevent any copying, recording or 
> storage of the work in digital form. The device cannot export the work 
> even in standard-definition analog form capable of being recorded, copied 
> or stored, without first adding a Macrovision signal designed to make the 
> image dark and unpleasant to watch. Finally, if a viewer chooses to watch 
> “copy never” digital programming in high definition analog form, the 
> device must have the capability to degrade the image so that it cannot 
> even be viewed except in lower-definition form. The rules are the same for 
> work marked as “copy once,” except that the licensed product may have the 
> capability to make a single copy, but even there the copy must be viewable 
> only on that device and incapable of being exported to any other player.
>
> Circuit City protested that the DFAST license was inconsistent with FCC 
> rules. The agency’s cable-box architecture rules, it urged, forbade the 
> cable operators from using contracts or licenses to limit the features 
> that a set-top box might offer (so long as it did not defeat access 
> controls). Further, it argued, the restrictions in the DFAST license 
> impinged on consumers’ ability to engage in engage in “fair use” copying 
> of TV and cable programming. After all, the impact of the DFAST license is 
> that programmers will have total control of whether viewers can make home 
> copies (even analog copies) of any television programming. That’s far 
> different from the status quo, in which consumers can freely and legally 
> make home copies of analog programming for noncommercial purposes.
>
> The FCC, with only brief discussion, rejected Circuit City’s claim. 
> Nothing in its cable-box architecture rules or its earlier decisions, the 
> agency said, was inconsistent with a CableLabs requirement that a set-top 
> box or cable-ready TV contain copy-protection technology. The FCC noted an 
> MPAA statement that content owners would not impose copy limitations on 
> retransmitted broadcast programs, and planned to set basic and extended 
> cable programming as “copy once”; the agency characterized those 
> intentions as consistent with “reasonable home recording.” But it 
> emphasized that its decision did not rest on those facts, and that it was 
> not holding MPAA to its representation. Even if copy limitations were more 
> extensive, the cable-box architecture rules would pose no bar.
>
> The FCC declined to scrutinize particular details of the DFAST license 
> that Circuit City had highlighted; such attention would be inappropriate, 
> it explained, because the license terms were not yet final. The agency 
> continued, though, that in a future proceeding it would invalidate a 
> license term only on the ground that it violated “a specific navigation 
> devices rule.” Since the agency had already announced that the only 
> possibly relevant existing rule posed no bar, this closed off any 
> meaningful ground of attack. The FCC had no existing rule relating to 
> copy-protection issues, and it saw no argument that it would be 
> appropriate for it to promulgate one.
>
> The FCC opinion treats copy protection as purely a matter for private 
> ordering. The terms on which programming is to be made available, from the 
> FCC’s perspective, is something to be resolved by negotiations among 
> content owners, cable companies and consumer electronics manufacturers; 
> the agency was forced to issue a ruling only because the negotiating 
> parties were unable to agree. The agency did not regard the scope of 
> permissible consumer copying, within a larger regulatory framework 
> government had put in place, as raising a public-policy issue. There was 
> no suggestion, as in earlier cases where the FCC had seen program copying 
> or redistribution as raising communications-policy issues, that here too 
> the FCC needed to consider the extent to which the regulatory structure 
> promoted or restricted consumer reproduction of the programs they received.
>
> One might argue that this decision should be distinguished from earlier 
> cases in which the FCC gave close scrutiny to copy control matters: In the 
> earlier cases, content owners complained that others were accessing or 
> reproducing their works in ways that were not, or should not be, not 
> permitted by ruling law. In this case, by contrast, content owners are 
> locking up their works so as to exercise greater control than the law 
> offers them. In the earlier cases, content owners were able to raise the 
> specter that they would cease producing works altogether, or would abandon 
> the distribution channel, if they were not able to control access to and 
> reproduction of their works. Here, consumers ­ who are the ones most 
> injured by the technological restrictions ­ make no comparable claim.
>
> Yet both cases address key elements of what used to be seen as the 
> copyright-law balance. Historically, in debating the extent of the rights 
> that law should give to the creators of media works, there was general 
> agreement that creators should have some exclusive rights but not others. 
> It was good public policy, for example, for creators to have the exclusive 
> rights (subject to exceptions) to make copies and distribute a work 
> publicly; that legal rule encouraged the creation of still more works. But 
> it was good public policy as well that the scope of copyrightable 
> subject-matter should be limited, that members of the public should be 
> able to engage in limited copying that fell within the “fair use” 
> exception, and that a publisher should have no control over the physical 
> object in which a work is embodied, once that work left its hands (so that 
> copyright law gives the publisher no control, say, over whether a buyer 
> re-sells a book after reading it, or over how many times the book can be 
> read). The MPAA’s plan for digital television will upset that balance, to 
> the detriment of the public interest. It is not only the invasion of 
> copyright owners’ rights that poses a publicpolicy problem; it is the 
> undue expansion of those rights as well.
>
> The FCC’s answer to these concerns was terse: “We note,” it wrote in its 
> opinion, “that nothing in our decision is intended to alter ‘fair use’ 
> under existing law.” Yet this misses the point. To be sure, the new 
> digital-television architecture does not change the copyright law, 
> rendering consumer copying a violation of that law. Rather, it renders it 
> unlawful for consumer-electronics manufacturers to produce devices that 
> can make the (legal) copies. But the upshot is the same: the traditional 
> protections for noncommercial home use, historically a concern of the 
> copyright law, are wiped away.
>
> It may be that the FCC was sympathetic to the copyright owners’ concerns 
> here because it saw merit in a claim made by Time Warner that home copying 
> was tantamount to theft. Statutory law, Time Warner noted, forbade the 
> Commission from promulgating rules that would impede cable operators’ 
> legal rights “to prevent theft of services.” Further, FCC rules were 
> explicit that they should not be construed to authorize “equipment that 
> would violate . . . any . . . provision of law intended to preclude the 
> unauthorized reception of [cable] service.” It appears that Time Warner 
> suggested that unapproved copying amounted to “theft of services” and 
> “unauthorized reception”; on that basis, it continued, the law not only 
> permitted but indeed required the agency to approve mechanisms for 
> requiring copy protection in set-top boxes and similar devices.
>
> One sentence in the FCC’s opinion can be read to suggest agreement with 
> this argument. The agency indicates opaquely, in a footnote, that the 
> validity of the license requiring that copyprotection technology be 
> incorporated into the set-top box derived from the FCC’s prohibition of on 
> equipment facilitating unauthorized reception of service. The statement 
> may simply be ill-considered, not reflecting the agency’s views. If it 
> does, though, it reflects a fundamental error, confusing access controls 
> with copy controls.
>
> The theft of services to which the statute and regulations refer is the 
> sort of unauthorized access to programming addressed by HBO’s satellite 
> signal scrambling and section 605. The FCC’s current cable set-top box 
> architecture is explicitly designed to incorporate access controls to 
> prevent that theft; those controls are located in the cable companies’ 
> plug-in modules. The copying that DFAST technology addresses, on the other 
> hand, is done by consumers who have already paid for access to the 
> service. The issue there is not access but copying. Indeed, it is copying 
> that for the most part does not appear to violate copyright ­ or any other 
> ­ law. There is no suggestion in the FCC’s opinion that those copies are 
> illegal.
>
> The essence of Time Warner’s argument is that for a consumer to own a 
> television set capable of copying a movie off the air is the moral 
> equivalent of her in fact copying the movie, hich is in turn the 
> equivalent of her copying the movie and transferring it to many other 
> people for them to watch without paying, which is in turn the equivalent 
> of those people hacking into HBO so as to receive the program service 
> without paying, which is illegal. Yet it can hardly be that any technology 
> giving the consumer some control over the reproduction and uses of a work, 
> including the ability to make legal fair-use copies, is the moral 
> equivalent of theft. On the contrary, traditional copyright law 
> deliberately reserved some control over media works to the consuming 
> public, just as it granted other exclusive rights to publishers. Far from 
> theft, it is the balance we have struck.



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