Broadcast Flag and the Analog Hole
On Thursday afternoon, the House Subcommittee on Courts, the Internet, and Intellectual Property will hold an Oversight Hearing on "Content Protection in the Digital Age: The Broadcast Flag, High-Definition Radio, and the Analog Hole." with Dan Glickman (Chairman and Chief Executive Officer, Motion Picture Association of America (MPAA)), Mitch Bainwol (Chairman and Chief Executive Officer, Recording Industry Association of America (RIAA)), Gigi B. Sohn (President, Public Knowledge), Michael D. Petricone (Vice President, Government Affairs, Consumer Electronics Association (CEA) on behalf of CEA and the Home Recording Rights Coalition.)
At this hearing, the MPAA will present a two draft bills:
The Broadcast Flag Act would amend Title 47 of the US Code to grant the FCC the authority to regulate digital television receivers to enable a broadcast flag. Broadcast flag regulations adopted by the FCC were struck down by the DC Circuit in American Library Assoc. v. FCC for a lack of a legislative grant of authority.
The Analog Content Act would amend Title 35 to require certain analog conversion devices to preserve digital content security measures. In other words, this legislation would require technology and consumer electronics developers to only sell hardware that conforms to rules set by copyright owners to restrict the storage and redistribution of analog audio and video content.
The draft is written in such straightforward language:
§101(a)(1) No person shall manufacture, import, offer to the public, provide or otherwise traffic in any – analog video input device that converts into digital form an analog video signal that is received in a covered format, or an analog video signal in a covered format that is read from a recording on an inserted storage medium, unless any portions of such device that are designed to access, record or pass the content of the analog video signal within that device: (i) detect and respond to the rights signaling system with respect to a particular work by conforming the copying and redistributing of such work to the information contained in the rights signaling system for such work in accordance with the compliance rules set forth in section 201 and the robustness rules referred to in section 202; and (ii) pass through or properly reinsert and update the CGMS-A portion of the rights signaling system or coding and data pertaining to CGMS-A and pass through the VEIL portion of the rights signaling system in conformance with such compliance rules and robustness rules;
CGMS-A carries information about the rights a copyright owner is willing to grant to viewers alongside closed caption information. VEIL carries rights information as patterns encoded within the video signal itself (like Macrovision copy protection on VHS and DVD.)
This bill would require the Patent & Trademark Office to regulate the "rights signaling system" and in any rulemaking to update the rights signaling system, should encourage "representatives of the film industry, the broadcast, cable and satellite industry, the information technology industry, and the consumer electronics industry."
Joe Gratz wonders why this bill would place regulatory authority within the PTO rather than the Copyright Office: Analog Hole News: "Could this be because this law enacts unlimited-term copyrights for certain uses of certain content, violating the constitution’s “limited times” requirement? Or perhaps it’s because it covers “live events” as well as copyrighted works, violating the constitution’s “writings” requirement."
The EFF's Danny Sullivan writes:
The unprotected analog outputs of computers will be, in perpetuity, restricted to either DRM-laden standards, or to a "constrained image", "no more than 350,000 pixels". Analog video which has been branded as "do not copy", will last for only ninety minutes only in the digital world - and will be erased, literally frame by frame, megabyte by megabyte, from your PC, without your control. You'll watch a two hour film, and as you watch the final half hour, the first few scenes will be being dissolved away by statute.
The EFF's Cory Doctorow writes: Hollywood after the Anal. Hole again: "This is like the Broadcast Flag on steroids. The Broadcast Flag only covered TV receivers. This covers everything with an analog video input. If this had been around in 1976, the VCR would have been illegal. Today, it would ban Mythtv, every tuner-card in the market, and boxes like ElGato's eyeTV the Slingbox and the Orb and the vPod. This is a proposal to turn huge classes of technology into something that exists only at the sufferance of the studios."