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

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 godwinslaw.org), 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 here.  To generate a letter that's specific to the proposed HD Radio legislation, go here.  To generate a letter that's specific to any proposed broadcast flag legislation, go here.  As 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.