Hollywood to the computer industry: We don't need no stinking Napsters!

Fearful of piracy, the studios want the federal government to legislate how computers are made. Critics say such interference signals the end of the line for digital innovation.

Published October 27, 2003 5:30PM (EST)

On its Web site, the Motion Picture Association of America provides a handy FAQ to help people understand the "broadcast flag," the latest copy-protection scheme that Hollywood wants the government to mandate. According to the MPAA, the idea is a near-perfect solution to a pernicious problem -- the threat that the coming age of high-definition TV will be derailed by a few bad apples intent on trading episodes of "Buffy the Vampire Slayer" over the Internet.

"What is the broadcast flag?" the MPAA site asks. To which it provides this simple answer: "The broadcast flag is a sequence of digital bits embedded in a television program that signals that the program must be protected from unauthorized redistribution. It does not distort the viewed picture in any way. Implementation of this broadcast flag will permit digital TV stations to obtain high value content and assure consumers a continued source of attractive, free, over-the-air programming without limiting the consumers' ability to make personal copies."

Civil libertarians and computer hardware manufacturers are wary of any kind of government-mandated technology. But put this way, the broadcast flag doesn't sound very evil. If TV companies want to insert an invisible tag into their shows in order to ensure "a continued source of attractive" programming, so what? As long as the broadcast flag will, as the MPAA promises, not hinder our ability to make personal copies of the shows we love, we might well wonder, "How is this scheme going to hurt us?"

The MPAA is counting on your apathy. It's precisely because the flag seems, on the surface, so innocuous that the studios are having an easy time pushing it to regulators in Washington. And the regulators are biting: According to close observers of the process, the Federal Communications Commission will soon adopt a rule requiring all technologies capable of receiving digital TV signals -- everything from HDTV sets to DVD players to general-purpose PCs -- to recognize and protect flagged TV shows.

If adopted, such a rule is sure to cause a great deal of hand-wringing in the PC industry, which is, increasingly, counting on the convergence between entertainment and computing to push sales. The last thing hardware manufacturers want is for Hollywood to be able to legislate how computers are put together. According to people familiar with the rule the FCC is pondering, the broadcast flag would force all computer companies to make a stark choice: Either add digital television capabilities to their machines and then, as some critics of Hollywood say, "weld the hood shut," making sure that everything else in the PC -- the DVD recorder, the hard drive -- is sealed with copy-protection, or stay away from HDTV altogether, sacrificing sales.

This, critics say, illustrates the real danger posed by the broadcast flag; if the mandate were just another rule governing TVs, the flag wouldn't be very objectionable. But this rule is targeted at computers, an industry that thrives on the freedom to tinker. "I'm old enough to remember a time when everybody opened up their system," says Mike Godwin, an attorney at Public Knowledge, a digital-rights lobbying group that has been among the fiercest opponents of the broadcast flag. "Now, what I'm being told is that in order for my computer to be integrated, it has to no longer be user-modifiable." Godwin, who is not shy about his obsession with "Buffy," adds: "If they destroy television, I'll be upset, but I can live with that. But if they destroy the computer revolution I'm going to be pretty pissed off."

The MPAA has been calling for a broadcast flag mandate for at least two years, and last December, in a 90-page filing to the FCC, it spelled out the broad scope of the rule it says it needs. The document is a classic example of Hollywood's vivid powers of imagination. File trading, it says, poses a mortal threat to the billion-dollar TV industry; in the absence of the broadcast flag, people will trade television shows as easily as they trade recipes, and when this happens, the MPAA argues, Americans can say goodbye to free TV. (A PDF of the MPAA's filing is available here.)

In a world without the broadcast flag, "all a person has to do is to select 'Record' while watching TV on his or her computer using a TV tuner card, and then save the file to a publicly accessible folder on his or her hard drive, where it can be illegally redistributed to anonymous users via peer-to-peer file trafficking," the document says. "The capability of the Internet to allow distribution worldwide, instantly, to millions of recipients, distinguishes the looming threat of digital piracy from previous technologies, such as the VCR, that rely on the creation and distribution of physical copies. With worldwide unauthorized redistribution of digital content so easy to accomplish, the threat of widespread piracy is enormous, even if the number of pirates is low. Any recipient of digital broadcast television, not just the professional pirate or amateur hacker, would have it within his or her power to illegally redistribute digital broadcast television content almost at will, everywhere on Earth."

American television -- which the MPAA extols as "a unique resource, justly cherished by millions of Americans," and "a major United States export that is tremendously important ... to our prestige in the world," a characterization that might give you new, patriotic appreciation for something like "Joe Millionaire" -- would be at grave risk in a world where everyone is a potential pirate. So, in order to save TV from its viewers, the MPAA wants to lock it down. Under the MPAA's ideal rule, high-definition signals broadcast over the air would not be encrypted, meaning that any digital TV could access them; but if a signal is tagged with the broadcast flag, the device receiving the signal would be required to secure the content by implementing a copy-protection technology approved by the FCC.

The MPAA proposed a complex process for the FCC to use to determine which copy-protection technologies would be approved for securing digital TV, and -- rather than the question of whether to institute the broadcast flag in the first place -- it's this copy-protection approval process that has become, in recent weeks, the most controversial issue at the commission. Fritz Attaway, a lobbyist for the MPAA, says that his group wants a "market-based" test for determining the approved ways of handling digital content in a machine. Rather than putting forward a detailed specification that spells out to computer makers how their computers should secure TV shows, the trade group prefers a list -- it calls this list "Table A" -- of protection systems computer makers could install in their digital-TV machines. The list currently has only a handful of technologies -- the main one being DTLA, a protection algorithm developed by Hitachi, Intel, Matsushita, Sony and Toshiba -- but Attaway says that "there are several different technologies that we believe would meet the test."

Technology firms find the idea of adhering to a list of government-approved technologies abhorrent. Emery Simon, an attorney at the Business Software Alliance, the computer industry's anti-piracy arm, says that computer companies would prefer "an objective process for determining what is a good technology." If they're required to implement the broadcast flag, hardware and software companies would like the government to set down specific goals their systems should meet in order to comply with the rule, and then to work toward that goal in any manner that pleases them.

"The tradition in the tech industry is self-certification," Simon says. "You look at the specification, you build your system to the specification, and you declare your product to be in compliance." Self-certification, says Mike Godwin, is the key to innovation in the technology world. Because no one technology has been arbitrarily blessed by an outside authority, firms are always free to use the best or the cheapest operating systems or hard drives or DVD-burning systems they can find -- or, if they want, to build their own.

The MPAA, critics say, would like to end all that. "Under the original proposal, no [copy-protection] technology could be approved without at least two motion picture companies approving it," says Fred von Lohmann, an attorney at the Electronic Frontier Foundation. He adds that under the MPAA's scheme, open-source digital television systems would be "banned outright," because "under this regulation not only do you have to embrace protection technologies, you must implement them in a tamper-resistant fashion, which means you've got to weld the hood shut. Open-source and free software are premised on not welding the hood shut -- it's not open source if it can't be modified by the users."

As an example, von Lohmann pointed to GNU Radio, the innovative free-software application that interprets broadcast signals on Linux PCs. GNU Radio can be configured to work like an HDTV tuner (here are some HDTV images captured by the software), but under the broadcast flag regulation, using it would be illegal, von Lohmann says.

The MPAA argues that predictions of the broadcast flag curbing computer innovation are greatly exaggerated. Because the list of approved technologies will be conditionally amended in response to demands of the marketplace, "innovation is ... certain to continue unabated under the Broadcast Flag solution," the group said in its proposal to the FCC. The MPAA also noted that "the Broadcast Flag solution will not, in itself, interfere in any way with continued innovation in the development of open-source software. While building a secure open-source protection technology will no doubt be a challenge, it is a challenge faced by open-source programmers in developing any secure application ... We welcome the efforts of open-source programmers to meet this challenge and develop secure digital output protection technologies and recording methods for submission for inclusion on Table A."

With programmers submitting their ideas to the FCC before they can implement them in their machines -- "an exceedingly complicated, Rube Goldberg operation," as Mike Godwin says -- the broadcast flag proposal might sound a bit byzantine. But the MPAA defends the idea by arguing that, without it, free TV would have to come to an end. "Rampant piracy," the MPAA says, would shatter the economic models upon which TV is built. If you could always get a high-definition show on the Internet, why would you watch syndicated reruns? Why would you buy DVD box sets of your favorite programs? Giving people the freedom to watch anything they want whenever they want could result in "the destruction of broadcast television programming as we currently know it," the MPAA said in its proposal to the FCC. "The loss of valuable programming via free, over-the-air broadcast television would reduce the rich range of options consumers presently have in choosing the means of viewing valuable content. Indeed, poorer consumers who may not be able to afford [cable or satellite subscription] fees may be shut out of obtaining quality television programming entirely, a consequence that would exacerbate fears of the emergence of a 'two-tiered' information society."

But there are several holes in the MPAA's thesis. First, the critics say, it's not clear that trading high-definition TV shows will ever become a national pastime -- the files are enormous, and even people with seemingly endless hard drive space and broadband capacity will find HDTV shows too big to work with. If the TV trade ever becomes as popular as the music trade, traders will likely choose lower-quality files to pass around the network -- and the broadcast flag does nothing to combat trading such files. The second argument the critics make is more subtle: Even if the TV trade ever took off, why should we assume that it will hurt -- rather than help -- Hollywood's bottom line? The MPAA, after all, is the group that predicted that no good could come from the VCR; but the home video market now accounts for more than half of movie studios' revenues. Why should anyone believe the MPAA when it says that trading will lead to TV's ruin?

In its comments to the FCC, the Computer & Communications Industry Association, a computer-industry trade group, included a chart showing how long it would take to transfer high-definition television shows over a high-speed connection. On a T1 line -- faster than most DSL or cable modem connections -- a one-hour, HDTV-quality show would take 18 hours to download.

"And it's unclear how such a user would store the torrent of data inherent to HDTV," the CCIA said. "A single two-hour movie broadcast with progressive scanning would take up 72 gigabytes of disk space, roughly equivalent to a full hard drive on most new, $2,000 PCs." Some people, perhaps, would do this -- but will it be hundreds or thousands or millions? Probably not. "In essence, Hollywood asserts that consumers will tie up their computers and broadband Internet connections for literally days at a time in order to swap crystal-clear copies of HDTV broadcasts," the CCIA said.

Mark Cuban, the entrepreneur who founded Broadcast.com (which he sold to Yahoo for $6 billion) and who now owns the Dallas Mavericks NBA team and several other entertainment properties, has bet heavily on high-definition TV -- and, because he can't conceive of the Internet threatening the high-definition business, he says he's "big-time anti-broadcast flag." In 2001, Cuban co-founded HDNet, the first national high-definition TV network. "We've been on the air for two years, and so has CBS, and HBO has had its shows on HD," Cuban says. "I'll pay you $10,000 to find a HDTV movie online. If in two years you can't find one single example," then there's nothing to worry about, he concludes.

Cuban concedes that things could change in the future. "There's always the chance there's some technology that comes along" to make trading HDTV easier. But the broadcast flag isn't designed to address those technologies, Cuban says, and it won't stop anyone who, today, spends any minimal effort to circumvent the system. Critics of the flag all point to the "analog hole" -- the regulation would allow digital TVs, VCRs and other receivers to send digital content out as a lower-quality analog signal. That signal could easily be captured on a computer, and then traded on Kazaa. Cuban also noted that "there's a whole new standard coming out for high-definition camcorders. You can bitch and moan about copying, but you won't be able to stop the eyeball hole," which he described as someone pointing a high-definition camera at a high-definition screen, recording a show, and then trading that file on a file-trading network.

And, as the EFF's von Lohmann explained, thousands of digital televisions have already been sold, and these TVs will completely ignore the broadcast flag -- and, consequently, these sets can send pure digital signals to be captured on a PC. Because of the existence of these TVs, the broadcast flag is, "by its own terms, completely useless," von Lohmann says. "It's not just a little useless, it's absolutely and completely useless, and it should take somebody only about 30 seconds to figure that out. All it takes is any one of those [legacy TVs] to upload a file to a file-sharing network, and we're done, game over."

The MPAA concedes that the broadcast flag won't be a panacea. "It's not perfect. We readily admit that," Fritz Attaway says. "[But] we believe that the vast majority of consumers are not going to take the time and effort required to convert digital material to analog and them to digital again in order to stream it over the Internet. Those that do, we will have to deal with in some other way."

Attaway also said that the trade group looks forward to the eventual retirement of analog outputs in consumer electronics products. "We believe that someday the marketplace will eliminate analog interfaces, because digital interfaces are more efficient, and that is the type of interface consumers will want in their devices," he said. Critics of the MPAA suspect that Hollywood will eventually ask the FCC to "sunset" analog outputs -- to order manufacturers to stop producing new devices that generate analog output -- but Attaway said that's not on the horizon. "We've made no initiatives at the FCC to eliminate analog outputs -- we readily admit the difficulties of setting a date for sunsetting analog outputs. We have to turn to other methods of dealing with the analog hole."

But let's say the MPAA is right -- let's say that, despite its holes, the broadcast flag will in face prevent high-definition TV shows from becoming "Napsterized," always available to anyone on peer-to-peer networks. Does that justify imposing the flag -- would a Napsterized TV market really lead to the end of TV?

Mike Godwin says he has puzzled over this question for a while, and he doesn't see any evidence to support the studios' threat model. "We had a meeting with the [FCC], and we said we didn't think their model is accurate," Godwin says. "There are reasons to think it's more complex than what they say. Well, the FCC quizzed us on this. What the studios say makes intuitive sense -- you know, why buy the cow when you can get free milk? And basically, our answer is that sometimes you want an ice cream sundae, not just milk."

If you're the kind of fan willing to spend days or weeks downloading episodes of your favorite program, chances are that you're also the kind of person who might buy or rent an entire season of the show on DVD. It's possible that, in an age of easily traded TV shows, you'll decline to buy the boxed set if you can get the shows for free -- but isn't it possible, too, that the traded shows will somehow convince you to buy the boxed set or rent more DVDs or watch more reruns?

This is, of course, a variation on the same question that has dogged the debate over music file-trading -- does trading help, or hurt, the media companies? But there's a difference in the video market, where the costs (in computer resources) are higher, and where people are used to renting content. It might be possible, someday, to download a season's worth of "The X-Files" to your machine in high-definition quality video -- but if you'll have to spend weeks to do it, why wouldn't you just go to the store and rent a DVD?

"I could download every episode of 'Buffy' I want to," Mike Godwin says. "And the fact is, I bought the boxed set."

By Farhad Manjoo

Farhad Manjoo is a Salon staff writer and the author of True Enough: Learning to Live in a Post-Fact Society.

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