How to stop Hollywood and Congress from trampling on your constitutional rights

How to stop Hollywood and Congress from trampling on your constitutional rights

Summary: Earlier today, I wrote a blog entry entitled The day the broadcast died.  It talks about how the RSS subscription protocol has been married to TV programming in a way that could completely disintermediate the current channels of TV program distribution.


Earlier today, I wrote a blog entry entitled The day the broadcast died.  It talks about how the RSS subscription protocol has been married to TV programming in a way that could completely disintermediate the current channels of TV program distribution.  In response, you should expect the entertainment industry to pursue every avenue at its disposal to clamp down on such innovations, stifling both the Internet and your constitutional rights in the process.  Here's what you need to know and what you need to do about it right now.

Enter (stage left) Digital Restrictions Management (DRM) and something known as "the broadcast flag."  Basically,  the broadcast flag is a form of anti-piracy DRM designed to give broadcasters the ability to control whether their content can be recorded and how it can be recorded.  For example, through the use of a broadcast flag, the only way to record Desperate Housewives might be through your TiVo box.  Then, through the use of other DRM technologies in your TiVo box, the only way for that copy of Desperate Housewives to be viewed is with the same TiVo box that recorded it (in other words, you wouldn't be able to distribute it on the Internet with something like BitTorrent).  The DRM technology can also control certain aspects of your recordings like how long  they last on your TiVo box before they're automatically deleted and whether or not you can bypass the commercials.  Such business-model protecting technology would be relatively useless however unless someone mandated its inclusion in customer premises equipment (TVs, set top boxes, TiVo-boxes, etc.).  Someone like Congress and the FCC.

So, in November 2003, the FCC instated a rule that, as of July 1, 2005, required all television receivers to include the anti-piracy technology.  But prior to that day of reckoning, saying the FCC didn't have the authority to make such a rule, a federal court struck the mandate down on May 6.  But the ruling wasn't a complete victory because it also said that Congress could pass a law to the same effect.  So then, Congress got into the act (literally and figuratively).  In June 2005, on the heels of the federal court's decision, Tellywood's lobbies looked to revive the mandate by getting the Senate to sneak an amendment into a largely unrelated spending bill (Gee, deja vu.  Certain Massachusetts' congresspeople are looking to screw the OpenDocument Format with the same unrelated-bill-amendment technique) .  But the "fair rights lobby" [sic] raised a stink and the Senate Appropriations Committee thankfully punted.  Then, in September, 20 members of Congress who were clearly looking out for the fair use rights of the people they represent (not), called for a reinstatement of the broadcast flag mandate.  Earlier this month, however, some members of the U.S. House of Representatives remained unconvinced that such broadcast flag legislation wouldn't marginalize fair use rights. 

As if it isn't bad enough that certain Congresspersons are looking to stifle fair use rights with broadcast flag related legislation, the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) are pushing two other fair-use rights limiting bills on Congress.  

As Christmas nears, several innovative companies such as iBiquity apparently have devices coming to market that can make digital recordings of satellite radio broadcasts.  Worried that this is another hole in the leaky dam that it must plug (before those recordings get out onto the Internet), the RIAA helped author the HD Radio Content Protection Act of 2005.  If approved by Congress, the law would basically create the equivalent of the proposed broadcast flag legislation, but for radio.  From the one pager that the RIAA is handing out to Congress (courtesy of, the problem is that:


Without content protection, users of new digital radio receivers could become owners and worldwide distributors of a personalized collection of recordings. In particular, they could:

  • Freely redistribute recorded songs over the Internet or on removable media;
  • Automatically copy particular recordings of the user’s choice, thereby transforming a passive listening experience into a personal music library often without even listening to the original broadcast; and
  • Do the above for all recordings played on local stations, including new releases before they are available in stores.

Imagine for example people feeding BitTorrent with content they've recorded using iBiquity's technology and then, via RSS, Internet users could have a way to subscribe to all of Van Zant's music (the same music that Sony tried to protect with its root kit technology).  Isn't it interesting to watch innovation and evolution in progress? 

As if the HD Radio Content Protection Act of 2005 doesn't tighten the noose enough, there's also the Analog Content Security Preservation Act of 2005.  A  November 3, 2005-dated draft of the proposed legislation is available from the Electronic Frontier Foundation.  The idea behind this legislation, which has the backing of the MPAA, is to make it illegal for consumer device manufacturers not to plug the infamous analog hole (another hole in the leaky dam).  In its coverage of the proposed legislation, ArsTechnica has a good description of the analog hole:


The analog hole is the bane of Hollywood's attempt to control your life; put succinctly, if you can hear it or see it on today's consumer electronics devices, you can copy it, with rare exception.

Between broadcast flag-type legislation and other laws that prohibit the sale of products that can make uncopyprotected, unDRM'd, redistributable copies of digital content and analog hole-plugging legislation, recording technologies as we're used to knowing them could become a relic of the past (as too would our constitutionally granted fair use rights).  But just in case that doesn't get the message across to the innovators and Americans who are determined to preserve their fair use rights -- the message that Tellywood and Congress will control the horizontal and the vertical (and the audible) -- there's also the Digital Millennium Copyright Act (the DMCA) which basically outlaws your right to exercise your constitutionally granted fair use rights by circumventing any technological measures that the manufacturer-side legislation puts into place. The anti-circumvention clause appears in section 1201 of the DMCA and is basically a law that, like with smoke detectors in airplane bathrooms, makes it unlawful to disable or work around the technological controls placed on media (eg: DRM).  More specifically, it says:

S 1201. Circumvention of copyright protection systems ‛(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES.-(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. (DMCA, 1998).


Why is this important? Two reasons. First, in response to my ongoing series on Digital Restrictions Management where I talk about how content is so locked down by DRM technology that most people are restricted from using it in a way that it should be used (in other words, a restriction on fair use rights), many ZDNet readers have responded in the Talkbacks and via e-mail about the many ways and technologies that are available for circumventing copy protection. Some e-mails have accused me of purposely excluding that information to make the trainwreck that I've been warning everybody about seem worse than it is.  But, what those e-mails and Talkbacks fail to acknowledge is that currently, the DMCA outlaws such circumvention.  So, you'll have to forgive me if I don't put myself and my employer at legal risk by proposing ways to break the law in order to exercise your rights.  Just because I don't like the law doesn't mean I should advocate breaking it.  What I will gladly advocate, and recommend now, are all the legal ways you can use to hopefully regain your rights.

For starters, the United States Copyright Office (USCO) has been empowered to create a list of exemptions to the DMCA's anti-circumvention clause and the USCO has designated the Librarian of Congress as the executor of that responsibility.  Currently, there are four narrow exemptions to anti-circumvention clause but none of them restore such fair use rights as the the right to make copies of content for our own personal usage.  That said, the Librarian of Congress is required to periodically reconsider that list of exemptions and is also required to receive input from the public in the process.  For the next round of exemption considerations, the public comment window is open until December 1, 2005 and I urge you to go to the page on the USCO's Web Site where public comments are being accepted and to fill out the form in order to make sure that your voice is heard before the list of exemptions is modified or left as is. Rest assured that the RIAA, the MPAA, and other lobbies that don't want you to be able to exercise your fair use rights are filing their comments.  Don't roll over and play dead.   Public outcry has already slowed down broadcast flag legislation in Congress and it's extremely important that as many of us as possible let our government know that we don't want our fair use rights trampled by laws like the DMCA,

Along those same lines, and in the spirit of public outcry, write to your Congresspeople and ask them to oppose the three forms of legislation -- any broadcast flag laws, the HD Radio Content Protection Act, and the Analog Content Security Preservation Act -- currently under consideration by Congress.  While you're at it, remind them that your not at all too pleased with the DMCA either.  Threaten to vote them out unless they not only respect your rights, but stand up for them for them as well.  After all, isn't that what our system of representation is all about?

[Important Update, 11/16 9:15AM EDT: The Electronic Frontier Foundation has several online "letter wizards" with prewritten text that can help you generate letters to your Congresspeople in a heartbeat.  To easily write a single letter that covers the full triple legislative threat of the three proposals currently under Congressional consideration (broadcast flag, HD Radio, and Analog Hole), go hereTo generate a letter that's specific to the proposed HD Radio legislation, go hereTo generate a letter that's specific to any proposed broadcast flag legislation, go hereAs of the time of this update, it appears as though the EFF does not have a letter that's specific to the Analog hole, nor does it have guidelines for filling out the USCO's online form regarding DMCA anticircumvention exemptions. To see a list of all of the issues that the EFF thinks you should be writing to Congres about, go to the EFF Action Center.]

Finally, this Christmas, much the same way it looks as though buyers are willing to economically punish Sony for its recent rootkit faux pas, send a message to all companies that promote the spread of the DRM disease (through the incorporation of DRM technologies into their content and products) by punishing them as well.  If that means Johnny won't be getting an iPod from Santa this year, then so be it.  Years from now, Johnny will hopefully be thanking you for how your civil disobedience did more to protect his future than any portable audio player ever could.

Topic: Legal

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  • How?

    Use bittorrent like it's going out of style. Drive the content companies right out of business.
    • How's that help?

      If the content companies no longer exist then there would be no content.

      That's kind of like shooting your horse for not moving fast enough. It doesn't really help your situation.

      In all honesty I don't know what can be done here. Bogus numbers on piracy are being use to argue draconnian measure that really don't stop piracy but make using you product more difficult. The way I see it this a ploy to generate more money. The content companies like the idea that you buy a CD and you pay for the exact same content again to put on your I-Pod. Or pay once to see it on TV get you to pay again to buy the DVD of said TV shows.

      In the end these companies are really causing more problems because I'm not going pay 2 or 3 times for the content I already own the first time I bought it.
  • SORRY... I ain't buying what your trying to sell !

    I and many other people support "fair use", but fair use does NOT include Piracy and/or illegal distribution of copyright protected works. The legislation before Congress is in the best interest of HONEST PEOPLE, (who pay for criminal acts in the long run), and that is the way it is SUPPOSE to be. No one is forced to buy music or other copyright protected works nor are they forced to buy radio or TV broadcasts. Just because the VOCAL MINORITY think that some how or some way their PERCEIVED rights under fair use might be impinged, we should blindly allow Pirates to continue stealing and distributing - NO I don't think so.

    Sorry but I ain't buying what your selling !
    • You say...

      You say you support "fair use".
      Yet you support attempts to destroy fair use. Well you are clearly easily fooled. This isn't about stopping piracy. this is merely a ruse. It's about the content companies ultimately creating a new revenue stream by taking away our fair use rights so they can "sell" them back to us one show or one song at a time.

      David is absolutely right when he uses the term "sheeple".
      Tim Patterson
    • How much are you willing to pay

      in increases in your health-care costs to support the Content Cartel?

      The legislation proposed to "plug the analog hole" will require massive amounts of engineering to work around the content-restriction requirements in [b]anything[/b] capable of signal capture. Yes, that includes medical equipment, primarily through the components used in it.

      Of course, it also means that you won't have the ability to record your cousin's wedding, too. Can't take the chance that there might be a copyrighted image in view, can we? Besides, the music might be copyrighted -- you'll have to contact the Mendelsson estate to check on that, but a lot of people use more modern music too.

      No more video recording. No more audio recording. Or, at any rate, only if you have a license to record (available only to members of the Cartel, presumably.)

      This is good for everyone because it keeps substandard works out of circulation, by the way.
      Yagotta B. Kidding
      • I agree with you, except...

        for the last paragraph.

        For today's "entertainment", substandard IS the standard!
        F4 4ever
    • I cannot beleive this clown!!!

      are you a agent for the criminal cartel (MPAA/RIAA) or what? and PS: yes i have a choice not buy illegally copy protected CD or DVD, no problems I just record them from TV and Radio (with is perfectly 100% legal) but wait.. I cannot do that no more, the illegal Hollywood cartel don?t like it.. Where do I am going to get that piece of music? Cannot with the CD (copy protection prevent me from using the music in the LEGAL MP3 player that I own, Cannot with the Radio (the broadcast flag is preventing me from recoding)? what choice to I have left? P2P? nope they illegal too. But since all 3 of my options are not possible whiteout breaking the law, witch one I am going to chose? hum the one that is free of course (and not polluted with illegal DRM.
    • But you are willing to pay higher prices for what you do buy

      I agree that fair use does not include any form of illegality but the suggested legislation will limit your ability to make LEGAL backup copies of your own music and movies. What the RIAA and MPAA are trying to do is prop up their declining monopoly. I should be able to tape the Sunday afternoon game in the living room so I can watch it on Tuesday night in the bedroom without needing to have multiple Tivos to do it. Also, as the price of media and distribution have gone down, the price of music has not. Even worse, artists are making less now on albums than they were several years ago. If you agree with the proposed legislation that is fine, but you should understand what you are signing away before you sign.
  • Allow Pirates to continue...

    It's hollystupids only choice. The consumer will kill all of this DMCA - DRM - Copy this copy that crap buy not diving into BlueRay etc. just the way nobody purchased SACD/DVDAudio discs. Why did they not sell cause ya can't easily make a copy..DUH..

    P.S. Sharing files never hurt anyone least of all the content owners.
  • I'm going to make a bad analogy...

    But I can't help it anyways. All of the people out there finding new and innovative ways to get content without contributing to the creator's revenue stream (via DVD purchasing, viewership that sells ads, blocking paid benner ads, etc.) are like the people who destroy their own neighborhoods when they have a riot. In their anger at whatever it is that they are angry about, they end up making the situation worse in the end.

    I agree that the current state of DRM is a mess. I agree that it stinks how restrictive it is, not allowing you freedom of device usage, software playback, backing up of content, etc.

    But when companies fail to monetize a product in the manner they were expecting to (or needed to do, to stay in business) they are going to kick and scream about it. So they look for ways, technological and legal, to protect their revenue stream. Which makes it even worse on you, the consumer. So the consumers step up their attacks on the system, and eventually the content providers give up and pull out.

    Rioters fascinate me. The idea that destroying the local businesses and your own housing units out of anger does not make sense to me at all. As a result of rioters, businesses move out, developers won't rebuild, and insurance rates go up for whoever is left. Similarly, as companies lose revenue on products because the revenue stream is being shrunk by various file sharing and media copying technologies, they too will raise the prices for those still staying within the system, or pull out completely. Is this what you really want? I know you purchase content online, so I know that you have nothing against seeing the proper people get paid for their work.

    Here's another analogy which might help you swallow DRM a bit better: video game consoles. My XBox has an awful lot in common with a portable media device. The discs are copyprotected in some way, preventing me from making backups or copies. If my content media gets destroyed, I have to pay for another copy. The content may only be used on certain devices made by certain manufacturers. The existence of console emulators proves that other devices *could* use that content, but only a limited number of manufacturers are licensed to make hardware to use that content. Likewise, to create the content requires close itneraction with the owner of the hardware/content license. Yes, I may use the content on another similar device if my hardware gets broken, but that may change in the future (look at what Microsoft is doing with XBox Live and micro-payments, downloadable add-ons, etc.). In the far future, when my device is no longer made, if mine breaks, I won't be able to replace it, and my investment in that content is now worthless.

    But at the end of the day, no one complains about the state of video game console industry, because that is the way it always has been. We accept it as part and parcel of buying consoles and games. Your issue with DRM comes from the fact that you are not used to being able to access your media this way. If the "analog hole" hadn't happened, if you never had the technological or legal ability to make copies of VHS & cassette tapes, CDs, DVDs, etc., if the industry hadn't been this way, you would not be upset right now. If we had jumped straight from vinyl records to portable media devices, you would not see the problem here at all. It's just that you are used to being able to make these copies and use them on a zillion devices and so on and so on, and because of this, you beleive you have a "right" to be able to use or own certain types of content in a particular way.

    Justin James
    • You're forgetting one small but critical detail

      I've acknowledged that DRM or something like it may be a necessary evil of our future. I'd rather not have it at all. But short of that goal, I'd accept DRM if there was a single open standard for it that everyone could support and that would allow content to interoperate across all devices. But I violently oppose proprietary DRM. I just don't think people realize the future we're sewing for ourselves. It will be like how Katrina victims needed IE to access FEMA's Web site, only 100 times worse. Maybe 1000. There is no justifiable reason for proprietary DRM other than market control and greed; neither of which serves buyers' best interests. None.

      • Can't happen, David

        [i]But short of that goal, I'd accept DRM if there was a single open standard for it that everyone could support and that would allow content to interoperate across all devices.[/i]

        That's an oxymoron.

        The whole point of DRM is to [b]prevent[/b] the files from being played. An open-standard DRM regime would necessarily be totally ineffective.

        The key problem is that the Content Cartel want to sell binary-identical copies to everyone [1], they want everyone to be able to play them [2] but they don't want everyone to be able to play the (identical) copy that their brother bought [3].

        The playbook is straight from DVDCSS: the "DRM" is there only to give them a DMCA cause of action to demand concessions from the device makers who actually handle the data.

        [1] Anything else would cost more.
        [2] Think TAM.
        [3] Otherwise there isn't any control, is there?
        Yagotta B. Kidding
        • Sorry Yagotta, I disagree

          I understand how DRM is being applied today and that's why I've routinely said we need to take a deep breath and do a group rethink before it's too late: one that includes use of a single open standard if we must have DRM. When implemented correctly, an open DRM system would allow you to associate all your content and all your devices with your identity which paves the way for all of your content to play on any of your devices, but for it not to play on, say, your brothers devices. Is that ideal? Shouldn't you be able to bring music to your friend's party? Sure. But it would be a lot better... a hell of a lot better.. than what we have today which is where, if you buy some music, you have to buy some other special technology to use it (technology that may not work with other music, or content). This system is ludicrous and it can be changed. Just the same way that public outcry has caused Congress to hesitate on broadcast flag legislation, the People need to act and act now. Not only must you contact your Congresspeople and file comment with the USCO, you need to take economic action with the companies that are peddling this nightmare. Look at the way Sony went from peddling DRM to making a patch available to withdrawing it from the market altoghether, all within a matter of weeks. You have the money. These companies respond to economic punishment. That means you have the power. You just have to use it.

          • I think his point was...

            ... if you lock a door and give everyone a key to open it, what is the difference between an open door?

            In an open DRM, how do you determine the right people to unlock it and prevent the wrong people? By the nature of control, something secret needs to be held by the content distributor and the "select" player makers.
          • Same reason Public Key Infrastructure works

            DRM is simply a specicification. It's openness doesn't impact what it's designed to do. PKI works much the same way. Linux is open. That doesn't mean everyone can figure out how to break into your Linux box. The two are unrelated.

          • Doors and locks

            I think what he's going for here would be based more on the principle of bank security. The plans to the bank could most likely be gathered from a municipal building, but bank robberies, as cliched as they may be, are not that common.

            This is mainly because while the method of protection is public knowledge, there is sufficient security (even before one gets to the vault itself) to discourage all but the most determined robbers, and even among those, determination does not often mean success.
            Third of Five
      • There is one, it's called Plays For Sure.

        And as you have pointed out many times, it's only a matter of time before it displaces everything else.

        As to it being proprietary, that sir is the world we live in. If it wasn't you wouldn't have all the legalize on your web site about your content being copyrighted and restricted in it's use.

        Good for the goose........
        • Of course it will

          It M$ and we all know how much you worship them.
        • yeah, right

          Plays for sure - on Wintel hardware only. I have little faith that other vendors like Apple are going to be getting on the bandwagon.

          I guess we'll find out soon enough.

          "As to it being proprietary, that sir is the world we live in."

          That [b]was[/b] the world we lived in. Maybe you haven't noticed, but there's a growing group of people discontented with proprietary stuff.
    • Your argument is kind of weak

      So basically you're saying if we didn't have tech we wouldn't be upset. That's kind of a silly argument.

      Because I couldn't make copies, can't think when that would be, I wouldn't need to?

      I grew up with LPs and we did copy them. I used make mix tapes off LPs onto 180 minute reel tape. Then the cassette tape came out and it was more compact and the same thing happened. Then CDs came out and we still made mix tapes. Then CD burners came out and we made mix CDs.

      The technology that allowed people to record and sell recordings is what allows me to make my own copies for my own personal use. You are right that if no method of recording was possible that we would not miss it. But we can record and have been doing so for over 50 years. You ain't going to change that.

      If you think people don't copy video games then you've obviously have been looking. Go to google and type in SEGA ROMS and see for yourself. Check out the mod chips for the X-Box and PS-2. Look at all the PC games that are easliy copied.