Ugly legislation in the U.S. [LWN.net]

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 the digital content protection act of 2006 [PDF]. The purpose of this law is stated as:

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 entertainment boxes.

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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US Congress by and for the people

Posted Jan 26, 2006 23:53 UTC (Thu) by giraffedata (subscriber, #1954) [Link]

Try to remember that the Disney corporation is owned and operated by people -- lots of them. Ted Turner is a person. Each member of Congress is a person and was selected by other persons. I don't see any falsehood in saying Congress is by and for the people. The debate is at worst only about which people get what. At best, it's about what regulation gets the most to the most people. E.g. unavailability of copying equipment might make Disney broadcast more stuff for The People.

If you go back to the foundation of the US, where phrases such as "government of, by, and for the people" originated, you see that it wasn't about freedom for the vulgar masses. It was about money - colonists wanting to pay less taxes; and business - colonists not being permitted to engage in certain businesses and sell certain products.

US Congress by and for the people

Posted Jan 27, 2006 9:45 UTC (Fri) by ncm (subscriber, #165) [Link]

No. A corporation is a "legal person" distinct from the "biological persons" that are used as components. (I would say "natural persons", except that corporations have been those, too, since the '20s.) If Ted Turner, in his role as officer of his corporation, acts against the interest of the other stockholders, or in violation of the corporate charter, he can be held liable, even criminally, whatever his compunctions or lack of same.

It's perfectly normal for a corporate officer to feel obliged to do something on behalf of the corporation that he or she would do very differently if not so constrained -- and even to do something personally repugnant. (E.g. polluting; using deep-pocket legal tactics against public-interest groups or negligence victims; lobbying for unjust laws.)

The myth that corporations are just groups of people acting in concert is convenient for the maintenance of corporate power, but it has been well over a century since it had any validity. Corporations exercise privileges far beyond anything even an untypically wealthy citizens can draw upon.

US Congress by and for the people

Posted Jan 27, 2006 17:30 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

You start off with "No," and then proceed to say a bunch of stuff completely consistent with what I said -- corporations are owned and operated by people. "No" should be followed by some kind of contradiction.

The reason my point is relevant is that the previous commenter suggests Congress acts for the benefit of corporations instead of for people, presumably by passing laws that give corporate copyright owners such as Disney more control over how people use the copyright material. I'm pointing out that when Disney's profits go up, people (biological) become richer. Often, it is at the expense of other people, but that doesn't mean you can accuse Congress of not acting for people at all.

The various things you point out about how corporations work don't seem to apply to the issue of whether or not Congress acts to benefit people.

I think if one wants to make a cynical accusation about what motivates Congress, one should leave corporations out of it and say Congress acts for wealthy people and against poor people. At least that wouldn't be invalid on its face. One might be able to argue that Disney's profits wind up mostly in the pockets of wealthy employees and shareholders.

Ugly legislation in the U.S.

Posted Jan 27, 2006 11:27 UTC (Fri) by arafel (subscriber, #18557) [Link]

Government of the people
By a corrupt subset of the people
For the people who can afford the corrupt subset of the people. -- Chris Newport

Ugly legislation in the U.S.

Posted Jan 26, 2006 4:50 UTC (Thu) by rknop (guest, #66) [Link]

The sad thing is, there are probably a lot of people in Congress who believe that all of these laws are good things that will protect the innocent musicians and moviemakers who are just trying to make an honest living.

Hell, I got into a flamewar on the Robert J. Sawyer mailing list, where Sawyer himself was arguing for ever-increased copyright terms, and indeed using specious arguments and completely not understanding the arguments I was making against it. (I have to admit to not being on that mailing list much since that flamewar; it left a very bad taste in my mouth, especially where I was personally attacked because RJS simply didn't understand something very obvious I was saying. And to think that RJS is a personal bud of Marcel Gagne!)

There are lots of *people* who have bought the much-publicized line that digital piracy is a problem about which Something Must Be Done, and who will think that all of these laws are probably reasonable and just given just how horrific and scary the child-porn-terrorist-subversive-pirate digital world is.

It's horrifying to think about giving a neophobic industry veto power over not just the future creativity of other industries, but also over all future *individual* creativity. (I whined and moaned about this on my blog, which is at http://brahms.phy.vanderbilt.edu/~rknop/blog/ ; there I put the text of the e-mail I sent to my congressman.) Unfortunately, the meme that that is horrifying doesn't get a lot of play, and few people have heard it; of those who have, most people seem to think it's an extremist position. And that problem includes members of Congress. Even if they are honest, the corporate lobbyists have a lot of *access*, which they can use to convince the honest Congressmen that their position is right.

I wish there were some way to wake the world up to just what it is that these laws are tryign to do. And by "the world," I don't mean "people who read LWN.net and similar publications." Those people are already well aware. I mean the people who tape shows on VCRs, who run Windows without ever realizing that they might consider something else, who think that "Adobe" is a synonym for "PDF" and would be shocked to learn that things other than "Adobe" read PDF files, who read the entertainment section in the newspaper but have never heard of the Creative Commons, who think that Linux (if they've heard of it) is comparable to Microsoft in terms of what it is, and who care very deeply about abortion, drug legalization, flag burning, and other contentious issues that *do* make the front page of the paper. How do we wake those people up to understand what's going on? It's very tough. All of these issues come across as either esoteric legal issues or esoteric technical issues.

Bread and Circuses.

I'm depressed now.

-Rob

Ugly legislation in the U.S.

Posted Jan 27, 2006 11:01 UTC (Fri) by ekj (guest, #1524) [Link]

You restate your position in terms they understand and care about. Yes it's hard. Yes it takes patience. Yes it's difficult to get the magnitude of the powergrab to register. It's easy to cross the line and be seen as a conspiracy-phanatic.

If someone is a Anime-fan, ask if they ever considered the reason why a DVD bougth in Japan won't in general work on a US DVD-player.

If someone has an Ipod, ask what they think about newly released CDs that you legally buy, but which don't work with their Ipod. (or other mp3-player)

If someone plays games and sells old ones they're no longer interested in on Ebay, ask what they think about media that *cannot* be resold if you're tired of them.

If someone is a librarian, ask if they think it's a good idea to have material that cannot practically be archived, and what this migth do to our cultural heritage. (though librarians are generally more-than-average aware of the situation anyway)

If someone is a politician, ask if they think it's a good idea that people who legally buy music or movies should be allowed to listen to this music in their car. Or if a person filming his own wedding with his camera should be allowed to make a copy of the film for his parents.

If someone is a DJ, ask if they've ever used a sample from some CD, and what they think of requirements to make such sampling impossible, illegal, impractical or all of the above.

It's hardest with people who have no personal interest or investment in culture at all. The people whose horizon is limited to passively watching tv and listening to radio. Aslong as that continues to work, many of them couldn't care less. Indeed that's mostly the same demographic that couldn't care less about *anything* that's not presented as a problem on the TV, but *do* care if it is, especially if it involved Paris Hilton.

Ugly legislation in the U.S.

Posted Jan 28, 2006 1:26 UTC (Sat) by amikins (guest, #451) [Link]

Even before digital content, some of these types of issues showed up with copyright law already.

For instance.. It is totally illegal for my mother to make reprints of her wedding photos. They were done by a professional photographer, so the photographer has copyright on the photos. The photographer can no longer be located -- could be dead for all we know -- and no photography studio will duplicate the images, since the photograph is marked.

It's really kinda insane, that someone is legally unable to reproduce a picture of themselves.

I almost wish this would pass, and worse

Posted Jan 26, 2006 5:07 UTC (Thu) by felixfix (subscriber, #242) [Link]

Remember DivX, the throw-away DVD rental scheme? Flopped, and that was kindergarten stuff compared to this. People somehow could not be induced to think that it was a good deal to pay $100 more for a DVD player that had to be hooked to a phone, whose special DVDs not only self-destructed within a couple of days, but wouldn't even play on anyone else's DivX player because they would only play on the first player on which they played (that's why they required a phone connection).

I am so sick and tired of this DRM shite. I wonder what would happen if Hollywood got their wildest wishes. Speakers would play only DRM stuff, you couldn't ever own any music, just rent it, what would really happen?

I tell you what I think. I think most people don't worry about things until they are affected by them. When that day dawns and they bring home a replacement CD player and discover that (1) it won't play their existing collection, and (2) it won't work with their existing components, they will be pissed as hell. Sony may well rue the day some bright eyes decided to put rootkits on their CDs, but the firestorm from implementing true DRM would make it look like a commotion over who got the biggest potato at dinner.

I more and more believe that the only way to kill DRM for good is to implement it, call Hollywood's bluff, lock up things so bad that the public will smash the industry.

I almost wish this would pass, and worse

Posted Jan 26, 2006 14:35 UTC (Thu) by rknop (guest, #66) [Link]

In contrast, though, look at the DRM we've got right now: CSS and region coding.

The vast majority of people aren't even aware of CSS, because their DVD players and Windows machines handle it. Only those of us who run Linux and want to use free software to legitimately watch DVDs are (perhaps) aware of CSS, and need to do something that Hollywood considers illegal to work around it. Yet, it's a restriction, and a stupid one that's a thorn in our side.

Region coding more people are aware of, but not enough people care for it to be even a PR problem for Hollywood. I talked to my sister about this in the last couple of months; she spent a few years in Brazil, and only then became aware of region coding, *and* she was working around it before she even knew what was going on. Somebody told her how to get disks to play. I told her what was going on, and also warned her about the "only 5 changes" stupidity. It's only the people who move, or who move back and forth, across the Holly Curtain who are even affected by this. Many of them are quite inconvenienced and quite annoyed. The rest of us-- we're not affected, so we just pretend it's not a problem and keep buying our eye candy.

DRM can be slipped in there, as long as there are enough people who aren't bothered by it that Hollywood can keep getting away with it.

It's like a lot of free speech. Nearly everybody in this country has all kinds of speech that they wouldn't mind seeing forbidden. If it isn't something they wanted to say anyway, most of them won't object to it being squelched. If you're determined to censor, the clever thing to do is to figure out how to do it in a way that some will support you, and most won't notice. Very few people have thought about it enough to realize that free speech means other people being able to say things it wouldn't even occur to you to want to say, or that you don't approve of.

-Rob

No!

Posted Jan 26, 2006 17:03 UTC (Thu) by felixfix (subscriber, #242) [Link]

I want this horrible legislation to come into effect precisely because it will be so draconian and will be noticed by everyone. Not some weak wannabe, I want the public to get hit by the full strength horror so it will be buried once and for all.

Your sister's encounter with region encoding is what I don't want. The public's encounter with DivX is what I do want, but more so.

Open Source DRM

Posted Jan 26, 2006 14:28 UTC (Thu) by rknop (guest, #66) [Link]

Well, the current laws wouldn't allow for that.

I also don't see how Open Source DRM can *really* work, and still be fully Open Source.

Open Source cryptography works, sure. But the difference with DRM is that you're trying to lock the content away from the same people who are supposed to see it. With normal cryptography, the content is supposed to be hidden from everybody but the intended recipient. However, there is nothing to stop the intended recipient from doing anything he wants with the content once he's used his key to unlock it. With DRM, you're supposed to stop the recipient from doing anything but a small number of approved things. But if the recipient has access to the source code-- then he can put in code at the point where the content is decrypted for whatever approved use, and siphon it off for whatever other use he wants.

No DRM scheme is going to be even nominally effective in a true Open Source environment. There can be Open Source *components*, but something in there has to be closed and proprietary to prevent programmers from undermining the system.

Also, as with GPLv3, DRM is counter to the very aims of free software. (I prefer that term nowadays, because Open Source seems to be a sanitized compromise term, with too much compromised.) As such, I'm not sure it's a good idea to normalize and tacitly approve of DRM by trying to play along.

-Rob

Open Source DRM

Posted Jan 27, 2006 12:32 UTC (Fri) by samj (subscriber, #7135) [Link]

Agreed, there does need to be a 'sealed' component - currently proprietary software is filling that void but in future we will have access to the same hardware tools that they do (eg Trusted Platform Modules aka Palladium). It should be possible to build a transparent, robust system that gives us flexibility while protecting the viability of creative industries (in which I'm not including what I like to call the 'legacy media industry'), ideally by protecting the files themselves rather than the path right through to the output devices.

Open Source DRM

Posted Jan 26, 2006 15:25 UTC (Thu) by cruff (subscriber, #7201) [Link]

Indeed, I've already decided that I will not purchase any digital ready television equipment before the mandated cut off. Possibly not even until well after that point. Why? There is a lot of crap, and the stuff I do watch arrives over cable where they will undoubtedly continue analog transmissions for quite a while after the DTV cut off.

The same will apply to audio also. While I don't absolutely have to have new music, it would be nice. If content providers make it so that I can't rip the CDs to play on my Squeezebox, they will have lost my money. I refuse to swap CDs and retired my CD changers because they really couldn't do what I wanted.