While the European software patent debate starts to warm up yet again,
legislators on the other side of the Atlantic (where software patents are
nothing new) are working at restricting freedom in different ways. In
particular, this week saw the return of the broadcast flag, in the form of
content protection act of 2006 [PDF]
. The purpose of this law is
To authorize the Federal Communications Commission to limit the
unauthorized copying and indiscriminate redistribution of digital
audio and video broadcast content over digital networks.
Remember that, in the last episode in the broadcast flag epic, a federal
court had concluded that the FCC, created to regulate access to the
airwaves, had no authority to control the behavior of receivers. So the
current proposal aims to "fix" that problem by making the FCC's authority
explicit. Under this law, the FCC would be empowered to regulate digital
TV receivers, and its previous broadcast flag rulemaking would be
explicitly ratified. A separate section gives the FCC authority to regulate
"digital audio receiving devices" as well.
Just in case the FCC might change its mind, the bill also contains language
requiring that broadcast flags in particular be used "to protect digital
audio content." This technology must also:
(b) permit customary historic use of broadcast content by consumers
to the extent such use is consistent with applicable law;
As others have pointed out, this is an interesting bit of language.
Broadcast flag technology is not required to respect fair use or to protect
any other rights "consumers" have under copyright law. Instead, it must
protect "customary historic use." Given the fuss the entertainment
industry has been raising for so many years, it is tempting to say that
"customary historic use" includes widespread recording, copying, and
redistribution of content. But that is not what the forces behind this
bill have in mind, of course.
What they do have in mind is a world where nothing new can be done. If
it's not "customary historic use," it can be prohibited. Not that long
ago, recording television programs to watch them at a more convenient time
was not customary - nobody had VCRs yet. It would not be surprising to see
an argument that putting music on a digital audio player is not "customary
historic use." Certainly putting one's music onto the hard drive of one's
Linux system in order to create podcasts or other interesting derived works
is not "customary historic use."
The broadcast flag already rules out the use of Linux systems to do
anything with digital content; free software, being free, cannot meet the
"robustness requirements" specified in the broadcast flag regulations.
But, even if that hurdle could be overcome, the "customary historic use"
provision will make it impossible to do anything new and interesting, on
Linux or on any other system. It is an attempt to freeze time and give the
industry a veto power over any new ideas that come along.
Also to be found in this bill is a requirement for "secure moving
technology," defined as:
(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.
In other words, the FCC's new authority would go beyond receivers to any
other device to which an receiver might be connected. The FCC will be
authorized - and expected - to require DRM for any device which might touch
digital content. And such DRM need only allow "customary historic use."
The EFF is encouraging
letters to Congress in opposition to this bill.
An older proposal, meanwhile, is the "analog
hole" bill [PDF]. This law would require video devices with analog outputs to
incorporate the CGMS-A DRM and VEIL watermarking schemes. With the
combination of the two technologies, the industry hopes to prevent
"consumers" (that's us) from doing anything interesting with any analog
signals we might be able to coax out of our shiny new, DRM-equipped
Ed Felten recently decided to look at VEIL
to get a sense for what is truly being mandated. As it turns out, he was
not able to. In order to have a look at the VEIL specifications, he would
be required to sign a non-disclosure agreement, and pay $10,000 as well.
And that only for the decoding side of the specification. So the "analog
hole" law mandates the use of secret technology; there will be no
opportunity to debate the merits (or lack thereof) of this technology
during the lawmaking process. All this leads Mr. Felten to wonder: do the
members of Congress behind this bill (or even their staff members) have any
idea what they are legislating?
It is bad enough that this law would make it impossible, for example, to
put together a MythTV box. But the
imposition of secret technologies is undemocratic at best. In this case,
too, members of Congress would benefit from well-written input from the
people they are said to represent.
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