Big Content would like to outlaw things no one has even thought of yet

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Robert J. Berger" <rberger () ibd com>
Date: January 22, 2006 4:49:24 PM EST
To: Dewayne Hendricks <dewayne () warpspeed com>, Dave Farber  
<dave () farber net>
Subject: Big Content would like to outlaw things no one has even  
thought of yet

Big Content would like to outlaw things no one has even thought of yet
1/21/2006 1:06:35 AM, by Hannibal
http://arstechnica.com/news.ars/post/20060121-6025.html

The EFF's Deeplinks section has a pretty alarming post about the RIAA
and MPAA's attempts to freeze the progress of consumer electronics
technology and then start turning back the clock on all of us. Fair
use, meet your successor: "customary historic use."
http://www.eff.org/deeplinks/archives/004340.php

The post points to broadcast flag draft legislation sponsored by
Senator Gordon Smith (R-Ore.) that contains provisions which appear to
limit digital broadcast media reception devices to "customary historic
use of broadcast content by consumers to the extent such use is
consistent with applicable law and that prevents redistribution of
copyrighted content over digital networks." In other words, if it does
anything heretofore unheard of with the digital content that it
receives, then it's illegal. And if it does anything "customary" that
could also possibly lead to unauthorized redistribution, then it's
also illegal. So all the bases are covered!

Can it really be that bad? We already knew that the proposed HD radio
provisions are just awful and absurdly draconian, but can Big Content
really be trying to put a blanket freeze on innovation and outlaw any
possible novel use at all of copyrighted digital broadcast content? I
downloaded the PDF and read through it, and it does indeed look that
way. There are a few relevant sections, so let's take a look at them.

Here's the first major section in which the phrase "customary historic
use" is used:

(2) CRITERIA FOR CONTENT OF REGULATIONS – In achieving the goal of
    preventing the indiscriminate unauthorized copying and
    redistribution of certain digital audio content over digital
    networks, any proposed regulations to govern digital audio
    broadcast transmissions and digital audio receiving devices shall
    –

   (a) require Commission licensees that transmit digital audio
   broadcast signals or that manufacture digital audio receiving
   devices to implement a Broadcast Flag technology to protect digital
   audio content;

   (b) permit customary historic use of broadcast content by consumers
   to the extent such use is consistent with applicable law;

   (c) not interfere with the deployment and spread of digital audio
   broadcasting to the maximum extent possible; and,

   (d) to the extent that such regulations cover devices, cover only
   devices that are capable, without any hardware alterations or
   additions, of receiving digital audio signals when such devices are
   sold by a manufacturer.

   (e) not interfere with the monitoring of or gaining access to
   musical works contained in broadcasts by performing rights
   organizations for the purpose of collecting or distributing
   royalties.

This sounds vaguely ominous, but not truly earth-shattering, mostly
because it's phrased positively. Unfortunately, by the time you're
done with the document you understand that it's worse than it looks at
first.

At issue in the legislation are two types of implementation-agnostic
"technologies": 1) a "broadcast flag" technology that's embedded in
the digital signal by the sender and that tells the receiver what it
can and cannot do with the digital content; and 2) a "secure moving
technology" that the draft legislation defines as follows:

(b) "Secure Moving Technology" is a technology that permits content
covered by the Broadcast Flag to be transferred from a broadcast
receiver to another device for rendering in accordance with customary
historic use of broadcast content by consumers to the extent such use
is consistent with applicable law and that prevents redistribution of
copyrighted content over digital networks."

There's the nub of it. The broadcast flag alone isn't enough, because
what happens when you want to actually listen to the audio that the
device has received? Unless you've got headphones attached directly to
your digital radio, you're going to want to move the signal from the
digital radio to a stereo receiver (for "rendering" as the draft puts
it), even if you're not necessarily planning on ripping the music and
uploading it to eDonkey. This where the "secure moving technology"
kicks in.

The "secure moving technology" ensures that whatever you do with the
signal that leaves the digital broadcast receiver, it definitely won't
be anything you can't already do right now. Furthermore, even some
things that you can currently do will be outlawed if those things
could facilitate piracy. This probably means that such devices won't
have much in the way of hi-fi analog outs.

After you read the above definition of "secure moving technology" and
then go further back and look at the first section that I quoted
above, that first "customary historic use" passage starts to make more
sense and to look more insidious. From reading the whole draft, it
appears that the "customary historic use" stipulation governs playback
on any device, whether it's an attached device or the receiver
itself. The broadcast flag is embedded in the signal like a special
tag that defines the content's terms of use, while the secure moving
technology acts as a sort of DRM wrapper/sandbox for the content that
ensures that any (compliant) playback device not only respects the
restrictions dictated by the broadcast flag but also does absolutely
nothing novel or unexpected with the content that the broadcast flag's
terms did not or could not anticipate.

So, if you were planning to launch a startup and make millions off the
coming digital broadcast media revolution by inventing the next iPod
or by combining digital radio with Web 2.0 and VoIP and Skype and RSS
and WiFi mesh networks, then forget about it. When digital broadcast
nirvana finally arrives, the only people who'll be legally authorized
to make money off of music and movies are the middlemen at the RIAA
and the MPAA.

But I hate to end a post on a sour note, so here's a thought to cheer
you up. This "customary historic use" thing reminds me of something I
once read in a history of Japan that I picked up on sale at
Borders. (I'd give the title, but I'm not at home so I don't have the
book handy. It wasn't very good anyway.) At the height of their
cultural power, the samurai were authorized to kill peasants for an
insane number of reasons, including "acting in an other than expected
manner." So look on the bright side: at least we don't live in feudal
Japan... yet.

––––––––––––––––––––––––––––––
Robert J. Berger - Internet Bandwidth Development, LLC.
Voice: 408-882-4755 eFax: +1-408-490-2868
http://www.ibd.com





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