A Copyfighter’s Musings

Ok, really, it was called the DRM-related legal and policy initiatives in the US panel.  But it was mostly about the broadcast flag.  Here are some of my favorite parts:

Richard Epstein… To think that you would want to do in order to preserve fair use is to decimate an entire industry, or two industries as the case may be, strikes me as being an extremely kind of odd conclusion to reach. I don’t see where the intermediate fix is, and once there is one pristine copy gets out, then there are billion pristine copies out there, and one has to realize that there is this precipice, which I think determines the shape of the entire debate.

Ed Felten holding his head in a painful way)”

Richard goes on to clarify, but, his point stays basically the same.

First, can somebody please do a study on what happens when just one copy gets out?  I’d really like to know how fast a single file would travel around KaZaA.  Second, we do need to start thinking about “intermediate” DRM models.  That is, can we have control without complete control?  Though we don’t like talking about fair use as a set of rules, should we completely turn away from DRM that allows for most of what we currently consider fair use?

Third, what about the tech industry?  Don’t you think they’ll be “decimated” by selling crippled devices?  Don’t you think people will try to import more non-crippled hardware and software? 

More importantly, can we please stop taking about “decimated” industries?  Business models are being decimated, but industries – well, I think they have some money laying around to adjust. It is important that when we talk about the broadcast flag and other government mandated DRM, we’re not talking about protecting an industry – we’re talking about protecting business models.

Protecting an industry means protecting what gets produced; this is what copyright is about – we protect art (and the artist) to ensure it gets produced.  Protecting a business model means protecting how that art is distributed.  To say that protecting the former is impossible without protecting the latter is a joke.

Now, to say that protecting the former never requires protecting the latter – that might be a little too far.  That is, if artists really had no means of digital distribution without the aid of the government, maybe then I’d listen. But we’re not at that point.

And that’s the thing about the broadcast flag.  It’s completely preemptive. At least with the music industry, there’s significant piracy going on right now.  But, with digital TV, the MPAA doesn’t even know if piracy would increase; they think that digital transmissions will lead to perfect copies moving around the world, but they have no evidence that that’s going to be the case.

Some might say that the broadcast flag isn’t primarily about piracy – it’s a way of taking advantage of digital TV to ensure the control of personal use that the MPAA always wanted.  But the MPAA probably wouldn’t make that argument –  look at their rhetoric in the FCC documents.

Still, you might be correct if you said the flag is not completely about copyright.  Check out this part:

“Pam [Samuelson].. the Hollings bill hasn’t been reintroduced in this congress, and it seems unlikely that it will be, but it does seem like the broadcast flag issue is a very similar kind of proposal….

Fritz Attaway… I have to take issue with you, it is not at all a similar proposal to the Hollings bill. It certainly has copyright implications, but at its core, it is a communications issue. Cable and satellite delivery systems, because they have a conditional access system, have the ability to protect content, including preventing content from being redistributed over the Internet. Over the air broadcasters do not have the ability, and the question before the FCC is should they give off air broadcasters a level playing field where they can offer program suppliers some security against the redistribution over the Internet.Without that security, content providers will naturally migrate away from off air broadcast television to cable and satellite. So the issue is maintenance of free television. We support that because free television is a major customer of ours, and we want free television to continual to exist in the marketplace, however if it doesn’t we will market our content through conditional access systems, and bypass free television. I don’t think that is in the best interests of consumers, but if one wants to argue, I suppose one can.”

This is about communications and not copyright? Isn’t it interesting that Fritz must have said that this right as the spectrum conference was starting?

In some ways, the broadcast flag really is part of the bigger picture of how we treat the sprectrum.  Let’s say we actually do want to protect over the air television.  If the spectrum isn’t scarce, what does it mean to protect over the air television? Who should we be protecting?  If the spectrum were shared, would everyone want the broadcast flag?

The EFF did a great job of revealing the BPDG as a closed process.  But now that I think about it, it wasn’t just consumers and some tech companies who were shut out.  It’s all the broadcasters who would exist if we had shared spectrum.

If the flag is truly a solution to a “communications issue”, shouldn’t we try to settle on spectrum first? Isn’t that an even greater reason to be patient with the flag?

Filed by Derek Slater at 10:25 am under General news
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