Broadcast Flag - to be, or not to be?

By Jon Newton 12/08/02

Howard Coble, Mitch Glazier, Reach Out Rosen, Howard Berman,
Billy Tauzin, Fritz Hollings, Jack Valenti, (dada da da)
Here's Uncle Tom Cobbley and ALLLLLL,
Here's Uncle Tom Cobbley and all ...
(Sung to the tune of Widdecombe Fair)

The official deadline for submissions to the US Federal Communications Commission (FCC) on Hollywood's Broadcast Flag scheme was passed on December 6. What now remains is whether or not this, the entertainment industry's most blatant attempt so far to directly control what consumers see and do, will be forced through.


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Concocted by that small group of movie companies and record labels known collectively as Hollywood (with a handful of associated hardware and software manufacturers lurking behind them), Broadcast Flag ostensibly calls for purpose-built technology to be 'inserted' into streaming stations under the pretext of preventing copyrighted items from being pirated.

Actually, it's part of an ongoing, very carefully orchestrated plan by Hollywood and others to plug directly into user environments - ie, private homes - to control what's being played and/or viewed also gaining, in the process, hitherto private and confidential information from, and about, users and their habits.

There was, for instance, the tightly focused RIAA (Recording Industry Association of America) bid to get government sanctioning to spy on music listeners under the Digital Millennium Copyright Act (DMCA), which it had dreamed up in the first place.

It was forced to back down. But, like the tobacco industry, Hollywood operates on the dripping tap principle. Drip, drip, drip. Eventually, everyone goes mind-numb. Tunes them out. And then they slip something past. Again.

Other components of the Hollywood attempt to not merely dominate, but totally control, the international entertainment market include:

And let's not forget this:

Last summer [2002], the MPAA filed the Content Protection Status Report with the Senate Judiciary Committee and, in it, called for regulation of the lowly analog-to-digital converters (ADCs) found in all kinds of electronic devices.

This is like demanding that the cap on your gas tank is regulated so it'll only accept gasoline sold by the MPAA and/or the RIAA. If the MPAA (and indirectly, the record labels and system makers) gets its way, every ADC will have a 'cop-chip' that'll shut it down if it's asked to assist in converting copyrighted material.

And if you think the MPAA and RIAA could never get away with such obvious bottom-line-inspired self-interest, think again.

The record labels and movie companies already regularly use their trade associations to enveigle police agencies around the world into letting them not only initiate, but actually be part of, raids.

Couldn't possibly be, you say?

Here's a line from a very recent press release from the music industry on an incident in Spain: "Spanish Guardia Civil carried out the operation in collaboration with IFPI (RIAA clone) and the Spanish recording industry association and IFPI national group AFYVE (another RIAA clone). The action was warmly welcomed by the recording industry ..."

And there are lots more like it.

So the connection between the entertainment industry already exists, and has done for decades. And needless to say, government enforcement agencies around the world would instantly recognize any such newly configured ADC as a heaven-sent opportunity.

But back to Broadcast Flag ...
'Persuading' the already morally bankrupt entertainment industry into allowing said agencies to piggy-back (and load in) hidden surveillance and feed-back systems would be no task at all. In return, law enforcers would increasingly act for, and on behalf of, the entertainment industry and a cop-chip could, and probably would, become hardly more than a souped-up version of the infamous Clipper Chip of the Clinton administration. Go here for more on the cop-chip.

In the meanwhile, under Broadcast Flag, every computer sold would have to have industry developed monitoring and remote control technology on board. Anyone who tampered with, or disabled, this technology could, and would, be prosecuted by various US government departments.

It seems incredible that things have reached the stage where Broadcast Flag is apparently under serious consideration. But that's the reality.

Broadcast Flag reared its ugly head early this summer while US Senator Fritz Hollings was trying to pass (and you can take that any way you want ; ) his anti-piracy bill.

The MPAA Copy Protection Technical Working Group (CPTWG) conceived the Broadcast Protection Discussion Group (BPDG) as a way of corraling digital television devices and technologies.

The BPDG, in turn, asked certain software, hardware, and consumer electronics companies - among them, Intel, Philips, Matsushita, Apple, and Microsoft - to get together to develop a standard to prevent digital TV broadcasts from being re-transmitted over the Net in a way that both allows technology, "to thrive" and, "the consumer to be protected," as Lawrence J. Blanford, President and CEO of Philips Consumer Electronics North America whose company is/was a member described it.

But at the end of the day, it didn't work out quite like that.

In fact, the BPDP 'standard' would allow the entertainment industry, et al, to move into your home. And you'd pay the rent.

But to be more accurate, it wasn't so much the main group that was the problem. Rather, a smaller bunch later dubbed 4C and 5C made up of Intel, IBM, Toshiba, and Matsushita, in the first instance, and Intel, Hitachi, Matsushita, Sony and Toshiba, in the second, had a less than salubrious deal with the MPAA to promote certain 'security' options and technologies, and to get them into the main standard.

In reality, of course, these secret options WERE the standard.

And you'd never have heard of 5C, at the least, had it not been for the efforts of Lawrence Blanford.

Broadcast Flag is, "really the same model for what's already been happening on the video side," CNET News.com quoted RIAA senior vice president of government relations Mitch Glazier as saying. "The concept of a similar 'broadcast flag' for digital television signals has already gained approval from an industry standards group, but has drawn criticism from opponents who say the technology will strip consumers of their traditional 'fair use' rights."

The 'industry standards group' Glazier refered to was, of course, the BPDG.

"Convened by a few private companies, the BPDG reached many of its decisions in secret and repeatedly evicted reporters from its discussion lists and conference calls," said the Electronic Frontier Foundation (EFF). "BPDG sought the appearance of consensus and downplayed significant disagreements."

And Lawrence Blanford said the technology supporting the "emerging plan" has the potential to remotely disable a device that's recording a movie or other program in a consumer's home.

Testifying before the House Energy and Commerce Subcommittee on Telecommunications and the Internet, Blanford said in essence, through their private contractual relationships, the small group of studios and companies [5C] would control digital TV technology and how people use their TVs, DVDs, and other devices in the privacy of their homes.

"All manufacturers of TVs, DVDs, and other devices will have to sign up for an overly broad, burdensome and private license, which will govern the encryption technologies that must be in these devices and the process to enforce copyright protection," stated Blanford.

"This small group of companies will mandate the technologies, control the rules that govern the technologies, and change those rules whenever they desire.

"Most alarming, the public, consumers, licensees, and public officials have not been part of the process that developed the 5C approach, and they would be shut out of its implementation. In short, private interests are taking control of the balance among consumer rights and commercial interests and, as a result, establishing public policy.

"Philips cannot, and will not, accept that. We believe other companies will not accept that. Congress should not accept it either."

Blanford said Philips had "lost all confidence" that the BPDG will achieve consensus, or that it will allow for serious consideration or adoption of technology solutions of equal merit presented by other interested parties.

"Private industry should be given a chance to reach a consensus," he added, "but the process should be cleansed by the sunlight of government. Further discussion should be held in an open forum, with the involvement of those who are entrusted with the development of public policy."

Calling on Congress "to reassert its role in this critical public-private partnership by providing an appropriate, public forum to continue these industry discussions and to foster workable solutions on a timely basis," Blanford said Philips would offer, "complete support to such an effort, including offering related Philips technologies to all comers, under open, fair and easily available terms."

He also called on other companies to join this discussion to make sure, "we get this right".

Notwithstanding his concerns, "most of the hurdles to protecting copyrighted digital broadcasts from being illegally redistributed over the Internet have been overcome and a report is slated to be issued on May 17," said an April 25 Reuters story.

Shortly after Lawrence Blanford revealed the existence of 5C, in a press release, MPAA boss Jack Valenti said, "The MPAA is very pleased that a broad, multi-industry consensus has been reached on the fundamental aspects of a technology, called the 'broadcast flag'."

Broad, multi-industry consensus? This was in truth a small, extremely venal group which, under the guise of guarding members against dangerous new technology, is doing its best to front what it calls a 'standard' to give members control of digital TV technology and how people use their TVs, DVDs, and other devices in the privacy of their homes.

In fact, Valenti - from 1963 until 1966, a top advisor to former US president Lyndon B. Johnson - warned sternly that new technology threatens an entire industry's [guess which industry] "economic vitality and future security".

However, this wasn't in 2002 - it was in 1982 and Valenti was referring to VCR's.

Back to Black
Black says the anti-copying quest seems doubtful in and of itself, but, "there is something worse at work here: Proposals from the Broadcast Protection Discussion Group would give Hollywood - not consumers - the right to decide what consumers may and may not record in the privacy of their own homes. BPDG chairmen say they intend to send the proposal to Capitol Hill for incorporation in a national law.

"If the BPDG proposal succeeds, ordinary people will not be able to cut and paste 'protected' sections of digital newscasts or other programming for their own use. Indeed, one scheme put forth by Intel and four consumer-electronics companies would make it impossible to view protected recordings on any hardware outside of one's home." Worse still, he goes on, the BPDG would let "media moguls" decide which new inventions would be allowed to copy existing media, and which not. Devices such as mp3 players would have to follow anti-copying instructions built into copyrighted media that gave only the producer the right to decide what their customers could do with them.

"They'd even have a place for people who dared to use products that didn't follow their rules, or tried to go around the anti-copying technology," says Black. "It's called prison."

Computer makers and consumer-electronics manufacturers that complied with the law - again, under pain of imprisonment - would be saddled with the bill for expensive re-engineering the proposal required, Black went on, also making the point that from the advent of the radio to player piano rolls, juke boxes and cable TV, the VCR and mp3 player, new media have threatened the old but, "At the same time, society has found ways to accommodate new technologies, pay writers, artists and other creators, and still hew to the principle that people who pay for content should have real flexibility in how they use it.

"Balanced copyright evolves along with society. It brings about progress. It makes possible innovation and creative uses of others' work. It gives us old quotes for new books, 'sampling' from the latest hit tunes, and new software features inspired by the 'look and feel' of others' program.

"But many of those same creative uses will disappear with the BPDG proposal, at least as far as they go in the new world of digital television. Indeed, the plan calls for extending already flawed copy-control technologies into every digital device on the market, from PCs to digital cameras, camcorders and just about anything else that could process a digital image."

Black reminds visitors to the association's site that Hollywood tried to kill the VCR, too.

"Consider," he says: "Until the video cassette recorder came along, no one thought of home taping as fair use. Now, Hollywood makes some 46% of its revenues from videos. Rebroadcasting TV signals over copper wires once seemed pointless and almost certainly illegal, but for the legal environment that gave us the cable TV system we have today.

Entrenched interests tried to exterminate both technologies and failed. They screamed 'piracy' and failed. And because they failed, those same interests - Hollywood and terrestrial broadcasters - are wealthier than ever before."

As Black says, we didn't believe them then.

Why should we now?

"Unfair, deceptive, and sneaky behavior"
These days, Mitch Glazier is the RIAA's senior vice president of government relations. But it wasn't always so.

Before that, he was chief counsel, Subcommittee on Courts and Intellectual Property, and former chief of staff to Howard Coble, one-time chairman of said subcommittee.

Mitch gained a certain notoriety when in 1999 he slipped the now infamous "sound recording" amendment into the unrelated Satellite Home Viewer Improvement Act, slated for safe passage through Congress. This made music recordings 'works for hire' which in turn meant artists weren't able to get possession of their own masters. Naturally, the artists believed they'd been hung out to dry.

"RIAA had succeeded - in November - in getting legislation through Congress that labeled recorded performances as 'works for hire' which artists' reps said would benefit the recording industry at the expense of musicians," said a February 17, 2000, Washington Post story by Judy Sarasohn "Special Interests Of Revolving Doors and Turntables."

"The measure, attached to another bill, came as a surprise to them," it added.

The amendment not only surprised them - it infuriated them and led to an oversight hearing in May, 2000, chaired by Senator Coble who led off with: "... As many of you know, this amendment has caused some to criticize my colleagues, my staff, and me as having indulged in unfair, deceptive, and sneaky behavior."

He went on that it was his belief that, "opponents of this language were overreacting". However, artists and spokesmen for artists, "continued to express anxiety over the issue and I concluded that my calm interpretation did not assuage their comfort ["assuage their comfort"? ; ] nor did it resolve their problem. So I then decided to grant their request for this hearing."

Mitch ended up at the RIAA as a lobbyist - with a very, very handsome salary increase. RIAA chairman Hilary 'Reach Out' Rosen, then President and CEO, claimed the RIAA didn't know the position was going to come open when Glazier made the changes to the Satellite act. But she didn't say, and nor was she asked, if she knew an opening of some kind, ideally suited to Glazier's very special talents, was in the offing.

The bill was eventually repealed, but not before Reach Out, Senator Coble and Congressman Berman (D-CA) had used the hearing to start a mutual admiration club. If you have a strong stomach, go here.

It's also of interest to note that Howard Berman's fief is California's San Fernando Valley - next to LA and the Not-So-Magnificent-Seven movie companies.

And by an amazing coincidence, Berman's top five contributors during this present election cycle were: Walt Disney Co - $32,000; AOL Time Warner - $28,800; Vivendi Universal - $27,591; Viacom Inc. - $13,000; and, News Corp. - $11,750.

This numbers come from opensecrets.org, which says: "The organizations themselves did not donate, rather the money came from the organization's PAC, its individual members or employees or owners, and those individuals' immediate families. Organization totals include subsidiaries and affiliates."

It adds that in 1999-2000 (as of December 1, 2000) Berman pulled down close to $100,000 in PAC contributions from the communications and electronics sector which includes, of course, the movie and music folks.

"RIAA Wants to Hack Your PC"
In the meanwhile, in October last year, Glazier was behind yet another 'amendment' for yet another totally unrelated piece of legislation which once again would have benefitted the RIAA. This time it was, believe it or not, the anti-terrorism bill - then only just approved by Congress - which caught his eye. As Wired News put it in "RIAA Wants to Hack Your PC":

"An RIAA-drafted amendment according to a draft obtained by Wired News would immunize all copyright holders - including the movie and e-book industry - for any data losses caused by their hacking efforts or other computer intrusions 'that are reasonably intended to impede or prevent' electronic piracy."

But once again, the amendment was spotted and the story added, "In an interview Friday, RIAA lobbyist Mitch Glazier said that his association has abandoned plans to insert that amendment into anti-terrorism bills - and instead is supporting a revised amendment that takes a more modest approach."

Omnibus digital television transmission bill
On Broadcast Flag, once more, a July 15 Reuters story said, "Rep. Billy Tauzin, who chairs the House of Representatives Energy and Commerce Committee, said his staff has begun to prepare a comprehensive bill that would resolve questions swirling around the new medium, hoping free, over-the-air digital broadcasts would become commonplace before too long.

"The staff has been ordered to begin drafting an omnibus digital television transmission bill and to have it ready by September for discussion, unless all the parties can tell us by September that they have resolved the remaining issues that stand between their reaching agreement,' the Louisiana Republican said at a press conference."

On the same date, [Jack] Valenti said, "We are near the edge of an agreement on remaining technical aspects of the broadcast flag, and we're anxious to avoid further delay. We hope to resolve these remaining matters in the very near- term so that we can move forward with implementing the broadcast flag as expeditiously as possible."

Watch this space.


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Jon Newton is the editor of p2pnet.net and is a regular contributer to MP3 Newswire. Jon's site is devoted to the politics of digital music and his insights as well as those of his co-writers can be read there. We urge to to explore it.

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