Docket No. 02-230
Comment Opposing Digital Broadcast Copy Protection

Submitted by
Bryan W. Taylor, Citizen
145 Schreiner Place
San Antonio, TX 78212-5227
Contents
1. Introduction
2. FCC Jurisdiction does not include Copyright Protection
3. "Withholding" of Quality Digital Content is not a Problem
4. The Broadcast Flag will not Substantially Increase the Release of High Quality
Digital Content
5. Consumers will not Accept Mandatory Copy Protection Enforcement
6. Technical Impediments Will Render the Broadcast Flag Useless for Copy
Protection
7. Mandating Copy Protection in Digital Receivers Contradicts Congressional Policy
8. Mandatory Copy Protection will Slow Innovation In the Electronics Industry
9. There is a First Amendment Right to Make certain Unauthorized Copies
10. Conclusion
Body of Comment
1. Introduction
I oppose the Broadcast Flag. I believe that it is an ill-conceived "solution"
to a non-problem, whose mere consideration represents a dramatic slap in the
face to citizens. Special Interests, in this case the entertainment industry,
have undue influence in government and the broadcast flag proposal appears to
impose a different set of regulations on the public than what they want or have
authorized via their elected officials in Congress.
It is clear from even a cursory inspection of public attitude that government
mandated Digital Rights Management is not just unpopular, but highly despised.
Here the FCC essentially proposes to adopt regulations that could not win a majority
in the Congress. The public's dislike of mandatory copy protection in Digital TV
appears to be reflected in the early submissions posted in this rulemaking. I urge the
FCC to turn a cold shoulder to the narrowly focused special interests of the
entertainment industry and instead place greater weight on listening to the voice of
ordinary citizens, who overwhelmingly reject the broadcast flag.
2. FCC Jurisdiction does not include Copyright Protection
Section 10 asks for comments on
"
the jurisdictional basis for Commission rules
dealing with digital broadcast television copy protection
"
, and I would like to start
there because this is the most important point. It simply is not the FCC's place to
create Copyright policy.
The Constitution clearly places the power for creating Copyright laws with
Congress, not the FCC. Congress has not delegated this authority to the FCC,
and the FCC seriously oversteps its bounds to consider mandatory Copyright
protection without statutory backing from Congress. The Copyright laws
represent a "delicate balance" and must be made by legislative bodies for
precisely the reason that the FCC demonstrates here: regulatory agencies are
not as equipped as Congress to balance the competing interests inherent in the
Copyright grant. Copyright protection is a statutory, not natural right,
granted by the People for their own benefit first. The benefit to authors comes
second. The FCC should defer to Congress for any adoption of digital broadcast
copy protection.
3. "Withholding" of Quality Digital Content is not a Problem
The Notice of Proposed Rulemaking (FCC 02-231) begins with an introduction that
makes several assertions that deserve further skeptical review. In relevant
part, section 1 reads:
Without adequate protection, digital media, unlike its analog counterpart,
is susceptible to piracy because an unlimited number of high quality copies
can be made and distributed in violation of copyright laws. In the absence
of a copy protection scheme for digital broadcast television, content
providers have asserted that they will not permit high quality programming
to be broadcast digitally. Without such programming, consumers may be
reluctant to invest in DTV receivers and equipment, thereby delaying the
DTV transition.
This is a rather loaded beginning to a request for public comment.
Fortunately, section 3 requests comment on "nature and extent of the piracy
concerns expressed by content providers" and further asks "If such programming is
being withheld, will it continue to be withheld in the absence of a regulatory regime?"
Those are good questions, but the FCC should not allow content providers to
make the unchallenged assertion that consumers will be reluctant to invest in
DTV without a broadcast flag. American tradition says that the free market,
and not government regulation is best equipped to determine what technologies
consumers most want to invest in. This consumer, in particular, would prefer to
invest in DRM-free technologies even if some content is not marketed by choice of
its maker. Unreliable recording functionality is a much bigger detraction to "high
quality digital content" than not having some works available on TV when they are
available elsewhere. Loss of basic features, such as "time-shifting" and "watch
again" are much more important to me than loss of content. If the argument for the
broadcast flag rests on an economic analysis of consumer benefit, no government
regulation is needed: simply allow the TV makers to optionally augment their TVs
with DRM. The economic argument for the broadcast flag is a sham.
Now to the first question from section 3: what are the nature and extent of the
piracy concerns expressed by content providers? Digital piracy, like analog
piracy, does exist and it does cause content providers damage. However, the
idea that "digital is different" or more susceptible to piracy is wrong, and
the impact of the digital piracy problem has been grossly exaggerated by
content providers. Content providers made all the same arguments before when the
VCR came out and when cassette copying became prevalent. Content providers
have always sought sweeping protections, they have never before received them,
and they have always remained profitable despite low levels of piracy. Most citizens
understand that they must reward content producers financially if they want good
content. The law as it is now provides adequate punishment for pirates and
adequate protection for consumers rights to make unauthorized copies as fair use.
Nothing in this basic dynamic really changes because content is delivered with bits
instead of analogue.
The idea that "digital media, unlike its analog counterpart, is susceptible to
piracy because an unlimited number of high quality copies can be made and
distributed" is erroneous. Analog is just as susceptible to copying. Analog
content can be digitized and copied perfectly. Indeed, we have all read the
reports of movies appearing on the internet as a result of camcorders recording the
analog movie directly off of the screen in movie theaters. This is just one example,
but there are no exceptions. You can make an mp3 from a vinal record. The idea
that digital piracy of "full quality" is rampant is also false. Typically "lossy"
compression is used to make the result smaller. I do not defend in such piracy, but
nevertheless, digital piracy is no more likely for works that were originally digital than
for works that were originally analog. The content providers have recycled old
arguments and applied them
to new technology to further their own interests at public expense.
The second question asked in section 3 is "If such programming is being
withheld, will it continue to be withheld in the absence of a regulatory
regime". Content providers made the "works will be withheld" argument before in the
context of the VCR. It didn't happen then and it won't happen now.
Many, even most, of the biggest blockbuster movies of all time have been broadcast
unprotected on regular TV, even though viewers could easily copy them. Many
recent blockbusters, such as Spiderman, have had great success at the box office
and on tape even though they were available on the internet in pirated digital form
even before they were released to theaters.
They made the same "works will be withheld" argument to justify the Digital
Millenium Copyright Act's protection of DVD encryption, yet after the movie studios
knew the Content Scrambling System was cracked and that their law was useless
towards actually removing DeCSS from the internet, they have not withheld any
movies from DVD release. Quite the opposite is happening: DVD is replacing VCR
as more profitable for the industry and more enjoyable for consumers.
There is no credible reason to think content providers will withhold high quality digital
content because of piracy of digital TV. The tired "works will be withheld" argument
seems more grounded in lobbiest's talking points memos than in a real harm to the
public. Most people are not pirates, and so long as this is true, money will be made
by those who can fill the demand for content, regardless of small percentages of
unrealized revenue attributable to piracy. Laws and regulations that treat all people
as potential thieves only serve to anger the public and make them feel less
sympathetic to the content providers. This phenomon should not be underestimated.
4. The Broadcast Flag will not Substantially Increase the Release of
High Quality Digital Content

Adding the broadcast flag will not prevent, nor even diminish internet piracy, so the
broadcast flag simple will not be the shield from piracy that would change a content
providers mind not to withhold technology. I will discuss the technical limitations that
make this so below.
If a single person circumvents the broadcast flag, the internet will find copies of TV
programming on it. Then the industry will be in the same position as DVD movie
content distributors are following the cracking of their Content Scrambling System:
highly successful despite a small uncontrollable amount of piracy. The bottom line is
that pirates will circumvent anything that is done, but the majority of honest citizens
do not need to be treated as pirates.
5. Consumers will not Accept Mandatory Copy Protection Enforcement
In section 3, the notice asks for comment regarding the market effects of having or
not having the broadcast flag: "To what extent would the absence of a digital
broadcast copy protection scheme and the lack of high quality digital programming
delay or prevent the DTV transition? Would the resulting dynamic threaten the
viability of over-the-air television? What impact would this have on consumers?"
Digital copy protection for TV programming removes capabilities
consumers have grown to expect. DRM technologies also raise research and
development costs that can only increase prices for consumers while slowing time to
market for new products. In fact, digital TV uptake by consumers will be much
smoother if left to the free market. Regulation shoving unwanted DRM technologies
onto consumers that remove expected fair use capabilities are the real threat. Before
DVD, a movie format called DiVX offered "high quality digital content" to consumers
subject to restrictions on copying and use. It bombed. The software market in the
early years of the personal computer saw much more technically advanced attempts
at copy protection.
Ultimately, unprotected works achieved greater market success and every copy
protected work was cracked.
This situation will be much worse in the arena of digital TV. Ask your sister or next
door neighbor if she or he wants to buy a TV that might not be able to record their
favorite show. Even if it means they can get movies sooner and a little more
programming, real people in the real world want assurances they will be able to
record "ER", "Sex in the City", and "The Sopranos". Cast doubt on this, and they will
reject digital TV and stick with analog. Give them comparable programming to what
they have now, with no DRM funny business, and sharper pictures and sound and
they'll move quickly.
A better questions for comment would be: "To what extent would the presence of a
digital broadcast copy protection scheme and the lack of guaranteed fair use
functionality delay or prevent the DTV transition. Will the resulting dynamic threaten
the viability of digital television? Why would anyone pay more to switch to a TV
medium with less capability?"
6. Technical Impediments Will Render the Broadcast Flag Useless for
Copy Protection

The notice asks specifically for comments on effectiveness in section 4: "We seek
comment on the effectiveness of any such technological model in protecting digital
broadcast content from improper redistribution."
The Broadcast flag, like DVD encryption, will utterly fail to prevent improper
redistribution. Because the viewer must own a TV that enforces it, the broadcast flag
will be a "trusted client" system. "Trusted client" security mechanisms cannot be,
have never been, and will never be secure against a determined cracker. I am not
aware of any trusted client implementation that has never been cracked. The
broadcast flag will follow in the footsteps of DVD's, music watermarking, a thousand
different computer games,
cable boxes, and "smart cards". Laws will not help nor will huge monitary
investments in wishful thinking. The broadcast flag will be cracked.
Once the broadcast flag is cracked, anyone who wants to break the law will be able
to, because the crack method will spread despite all attempts to stop it. People will
record copy protected shows and record them and post them to the internet with
copy protection removed. Other people will download and redistribute them. All of
these people are already breaking the law. Their acts are immoral and
undefendable, but inevitable and predictable. The result is that content providers will
be in the same situation they would be in with no copy protection, completely
defenseless against a small pool of people who disrespect their copyrights. As the
examples above show, it is a familiar situation for them. They will profit anyway.
7. Mandating Copy Protection in Digital Receivers Contradicts
Congressional Policy

The Notice of Proposed Rulemaking requests comments regarding mandates on
digital receivers. In section 6, it asks for comment on "whether the Commission
should mandate that consumer electronics devices recognize and give effect to the
ATSC flag". In section 7 comment is sought on "the appropriate entity to make an
approval determination." The appropriate entity is Congress itself and the only
Congressional enactment regarding
technical protection measures frowned on such mandates.
The Digital Millenium Copyright Act is the supreme law of the land (although many
think parts of it are unconstitutional, no court has yet agreed). Its provisions are
binding on the FCC, and until or unless it is revised, the balance that it strikes
between the various competing stakeholders in the Copyright arena are owed
respect. The DMCA's governs technological protection measures that protect access
to copyrighted works or
rights of the copyright holder. The Supreme Court has often stated that the Copyright
Act is both a grant of power and a limitation on its use. It is not the place of the FCC
to recalibrate the policy balance struck by Congress.
The DMCA provides in section 1201(c)(3) provides that "Nothing in this section shall
require that the design of, or design and selection of parts and components for, a
consumer electronics, telecommunications, or computing product provide for a
response to any particular technological measure...". This is the so-called "no
mandates" clause.
An FCC regulation establishing mandates on the manufacture of digital receivers is
little more than an attempt to provide what Congress specifically stated was not
desired. Congress wanted the free market to promote its own technological
measures. Congress did not want to see any player device makers forced to adopt
measures just because content providers did. It is clear that the content providers
are attempting to convince the FCC to do for them what Congress specifically
rejected. The FCC should leave Copyright protection balancing acts to Congress,
both as a matter of jurisdiction under the Constitution (as I argued above in section
2) and as a matter of policy, when Congress has specifically stated it's desires.
8. Mandatory Copy Protection will Slow Innovation In the Electronics
Industry

In section 9, the notice seeks comment on "the potential effect of a broadcast flag
requirement on the development of new consumer technologies," and "on the cost
impact, if any, that a broadcast flag requirement would have on affected consumer
electronics equipment."
Regulations and government mandates inevitable slow innovation and increase cost.
The broadcast flag in particular will be an extremely stiffling measure, because of
two surging trends in the arena:
1) television receivers are merging with ordinary computers, and
2) open source software is proving to be a serious contributor to software
innovation.
It is highly likely that by the time DTV is deployed, large number of
consumers will think of digital video as just another form of multi-media that their PC
controls. It is also highly likely that a substantial chunk of the desktop and media
device market will be run on open source software.
Because of the DMCA, the broadcast flag will not be amenable to open source
development. An open source project cannot share proof of concept code without
risking liability under the DMCA. Unless you have a finished product that fully
implements the flag, you cannot share your code if a mandate is in place. This
requirement makes open source development,which depends on sharing unfinished
code, too risky to do in the United States. For example,
the DeCSS tool was created to demonstrate coding concepts to developers working
on a full blown DVD player for Linux. Even though their ultimate aim was to create a
player that was exactly like commercial ones that enabled playback without exposing
the unprotected work, along the way they had to create something like DeCSS,
which ran afoul of the DMCA when non-developers like the defendants in the lawsuit
got a hold of it. The FCC should
not adopt rules which exclude, even indirectly, harm open source development and
innovation.
Technology mandates may be a death blow to open source projects, but they also
harm regular private innovations as well. A private development effort has to write
device drivers and software interfaces to implement the measure. Because
computers are taking over video players, the result should be a climate where
commodity products are reused and small amounts of original work are needed to
produce innovative products. In short, the barrier to entry will be low. Mandates will
dramatically increase the amount of task specific development that must occur. This
raises costs and slows time to market for those who participate, but worse, because
it raises the barrier to entry, fewer technology providers will enter the market.
Combined with that the large segment of potential open source developers, the
result will be very slow innovation in the video electronics market.
9. There is a First Amendment Right to Make certain Unauthorized
Copies

Section 8 seeks comment on the First Amendment rights of consumers. Mandatory
copy proctions undercuts the fair use free speech rights that save the Copyright Act
from the sharp axe of the First Amendment. All Copyright is granted to benefit the
public and cheif among such benefits is the fair use right.
10. Conclusion
The FCC should refrain from charging into the Copyright balancing debate. Digital
Rights Management is a political issue that is best decided by Congress. The
prospect of content providers withholding works unless a broadcast flag is mandated
is an unfounded fear that has more to do with lobbying talking points than real world
business decisions. The
impact of a broadcast flag on high quality content is negligible. If "quality" is defined
by the consumer, and not the producer, the broadcast flag decreases quality by
crippling expected features.
Past attempts at copy protection have demonstrated that given the choice
consumers prefer not to have it, even if better content is available. In the TV arena,
this preference is extremely powerful, since consumers expect to make unfettered
copies for personal use. The broadcast flag will utterly fail to make any noticable
dent in piracy of the content it protects because it inevitably
will be cracked and once cracked, distribution of pirated copies on the internet is
unstoppable. Despite this, most consumers obey the law and content producers will
make profits.
Technology mandates should be left to Congress and Congress set policy in the
DMCA that rejects them because mandates stifle innovation and free markets. This
would be especially true in the digital television market, because commodity
personal computing technology combined with open source development trends
create a very low barrier to entry that will be substantially negatively impacted by
technology mandates.
Finally, DRM is fundamentally misguided because the First Amendment requires
Copyright to allow reasonable unauthorized copying as fair use.
Respectfully Submitted,
Bryan Taylor