"Broadcast protection": a mini-SSSCA compromise

Posted 13 Apr 2002 at 04:04 UTC by schoen Share This

Plenty of current press reports indicate that the SSSCA/CBDTPA won't pass the U.S. Congress this year. (I don't mean to discourage you from writing to Congress about that legislation; it's just that political support for the bill as it stands is relatively weak.) Jack Valenti of the MPAA recently said that movie studios "we want to narrow the focus of the bill as the legislative process moves forward. What needs to happen is we all sit down together in good-faith negotiations and come to some conclusions on how we can construct a broadcast flag (for keeping digital TV content off the Internet), on how we plug the analog hole (allowing people to record digital content off older televisions and other devices), and how we deal with the persistent and devilish problem of peer-to-peer." It looks like Valenti will get his first wish, at least.

The future of the SSSCA isn't a broad government mandate regulating every possible device. It's a series of mini-SSSCAs imposing rules on particular technologies. Each minor SSSCA will be poorly publicized, "narrow", and "negotiated". They'll be written as compromises, but not compromises protecting your interests.

Almost all major consumer electronics manufacturers and several major computer vendors have been meeting with the studios since November to talk about the implementation of the "broadcast flag" idea. Basically, they're writing legislation (although not all of them are comfortable calling it that).

This isn't as exciting as the SSSCA, but it has a great deal more political support. It's seen as "moderate" and viewed as "industry consensus", and it's backed by major electronics companies, not just Hollywood. What legislator would oppose that?

It's increasingly appearing that the SSSCA mandate is a smokescreen, or, if you prefer, a deliberately alarming and extreme proposal introduced to make other government mandate schemes appear moderate and reasonable by contrast. (Frequently, advocates of some legislation will start out by asking for much more than they really expect to get; then they can "make concessions" and "compromise" and end up with a "middle ground" which includes most of what they really wanted.)

Furthermore, the SSSCA has clearly frightened electronics companies. In their testimony and public statements, they've been eager to emphasize that they want to work with Hollywood and have been working with Hollywood and are trying hard to accomodate what Hollywood wants. When Leslie Vadasz of Intel suggested in one hearing that Intel would merely attempt to compromise with Hollywood instead of surrendering in advance, pro-copyright Senators were outraged. The idea that Hollywood's demands were unreasonable and should be rejected never even entered the picture.

So everyone's talking about "negotiation" and "consensus" these days. Some industry insiders have a pragmatic view: we don't have the political power to fight Hollywood directly, they say. If we get stuck in front of Congress, we lose. So our task is to keep this battle from ever ending up on Capitol Hill.

The compromises thus reached -- like the "broadcast flag" compromise -- are better than the SSSCA because they are milder than it. They are less intrusive and less disruptive and less extreme; they apply to specific technologies instead of every single digital device.

They're still harmful to free software. The particular negotiation I've been discussing, a series of meetings in Los Angeles under the banner of the Broadcast Protection Discussion Group (BPDG), is writing legislation which would mandate DRM for digital outputs on digital TV receivers. The inside of any digital TV receiver (including a tuner card for a PC, and including software used in connection with such a card) would have to be "robust" and "tamper-resistant". A "non-compliant" device would be illegal.

To retain backwards compatibility with existing digital TV equipment, there would be no encryption involved, just a single "redistribution control" bit. New equipment would be mandated by law to respect the bit and to be designed to frustrate end users' attempts to remove these controls. Among other things, that means no free software for playing or recording digital TV broadcasts, and a ban on existing tuner cards which allow free software to do these things.

The requirements for digital TV receivers are being written by many of the same folks who wrote the licensing rules for CSS, the encryption scheme used by DVD Video. (Here, there is no pretense of technical security; the security is provided by a legal mandate, through and through, and enforced in court.) To a first approximation, the goal is to impose requirements on anything which receives over-the-air digital TV broadcasts akin to the requirements the studios imposed on DVD players. That includes a prohibition on free software implementations, because, even if they complied with all the other restrictions, they aren't "tamper-resistant".

Since these rules are so arcane and digital TV is still not particularly mainstream, it's difficult to get people to pay attention to this, or to recognize the harm it could do them in the long term. The EFF has started a weblog, Consensus At Lawyerpoint, with news about the proposal; we would welcome your attention and suggestions.

Feint, posted 16 Apr 2002 at 02:47 UTC by ncm » (Master)

In military terms, then, SSSCA was a feint. You can see a similar tactic in threats to open the Arctic National Wildlife Preserve to oil drilling, to drain environmental lobbies' political capital and to distract attention from even-worse-but-less-visible activities.

There's nothing for it but to go on the offensive. In the absence of $millions to buy senators, we have to use our creativity, but we can also draw upon a few senators and reps who enjoy a good scrap.

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