4742 North Lawler Ave
Chicago, IL 60630
The Federal Communications Commission
Washington D.C. 20554
Re: MB Docket No. 02-230
I am responding to your Notice of Proposed Rulemaking, adopted August 8, 2002,
the issue of the "broadcast flag."
While I personally agree with the many replies in opposition to the flag, I
to take this opportunity to respond to some of the specific issues raised in
statement. I offer my comments in the order in which they appear in your
| Without adequate protection, digital media, unlike its analog counterpart, is
| piracy because an unlimited number of high quality copies can be made and
| violation of copyright laws.
This statement is untrue. Digital and analog media (and more to the point,
equally susceptible to piracy because:
1) Television viewers, especially cable and satellite subscribers, have access
to a very
high quality analog signal.
2) Federal law 17USC1201(k) prohibits broadcasters from applying Macrovision
copy protection to free television and basic and extended basic tier cable
broadcasts. Thus, television signals are guaranteed by Federal law to be
with video recording devices, and therefore compatable with all video capture
3) Devices are readily available on the mass market which are fully capable of
the process of turning a high quality analog signal into a high quality digital
contains a list of 257 PC adaptor devices, in addition to the thousands of
of video tape recorders currently available that perform this function. These
legitimate products. They are products that one would use to convert your home
into DVDs, or into a form suitable for transmission over the internet. These
the current "hot item" in electronics store. A recent visit to Circuit City
revealed an entire
shelf display with at least a dozen models of video capture cards. These
devices are fully
capable of converting an analog broadcast into a digital datastream.
Therefore, digital and analog broadcasts are equally susceptible to piracy.
| In the absence of a copy protection scheme for digital broadcast television,
| providers have asserted that they will not permit high quality programming to
| digitally. (Reference to a letter from the Walt Disney Company.)
| In particular, we seek comment on the nature and extent of the piracy
| by content providers.
This is a common claim brought forth by the theatrical motion picture studios.
claim is that the studios could not broadcast blockbuster movies on free digital
television without copy protection, because those movies would constitute
"perfect digital masters" which could serve as a source for pirate editions of
This claim does not reconcile with the business model of the motion picture
The motion picture industry has established a business model designed to
revenue. The business model features a staggered release of works in different
Theatres, followed by
Video/DVD rentals and sales, followed by
pay per view, premium cable, followed by
Commercial broadcast television.
I would like to examine the potential for piracy inherit in each of these
The problem of piracy during the theatrical run is well known --
such pirated copies are often called "camcorder" copies, as they are typically
made with consumer camcorders smuggled in theatres. This form of piracy
typically yields low quality copies, and is unaffected by the broadcast flag.
The first (and best) opportunity for high-quality piracy of motion pictures
comes in the Video/DVD rental period. It is at this point that the best
available quality copies of works are sold to the public. The Video and DVD
releases are typically full length, high resolution, maximum quality,
unedited, uncropped copies of the work.
There are two methods available for making unauthorized copies of
theatrical movies from these Video/DVD copies. The first is the
use of video capture cards, as described above. The second method
applies to DVDs. A computer program, called DeCSS, is available
which permits the recovery of a perfect digital copy of the digital
video stream from a DVD. This program, despite efforts to suppress
it, is widely and trivially available on the internet. This software
represents a permanently available method of producing virtually
perfect copies of theatrical motion pictures, long before those
motion pictures appear on broadcast television.
Pay per view and premium cable offer piracy opportunities similar to
Video/DVD, except that the quality would be lower.
Broadcast signals share the characteristics of being both the last stage
in the distribution of motion pictures, and the lowest quality. Leaving
aside completely the issue of whether digital broadcasts are of higher
quality of analog broadcasts, such commercial broadcast transmissions
of motion pictures are ill-suited for piracy, for a number of reasons.
1) They are often edited for content, to meet FCC broadcast standards
for language, violence, and nudity.
2) They are often cropped to fit the screen.
3) They are often edited for time
4) They nearly always include "station bug" overlays for portions of, or
increasingly, the entire broadcast, impairing the picture.
5) They often include scrolling information on the bottom of the screen
such as breaking news stories, messages such as "stay tuned for *******
following our movie), or emergency weather information.
6) The credits are usually not shown.
In short, even if one were to accept that a digital commercial television
broadcast was an extreme improvement over an equivalent analog
television broadcast, the resulting recording would still be vastly inferior
to the same DVD that could be rented for a dollar at most video stores.
| As an initial matter, we seek comment on whether quality digital programming
| is now being withheld because of concerns over the lack of digital broadcast
| copy protection.
I believe that the apparent lack of digital broadcast copy protection results
number of factors:
1) The additional expense of producing HDTV content
2) The perceived lack of acceptance of the format, which combine to form:
3) An inadequate cost-benefit ration
In addition, I would consider the commission to consider whether a fourth factor
4) Deliberate foot-dragging in providing HDTV content, used as a bad-faith
to obtain FCC regulations requiring digital copy protection on broadcast
signals as a form of ransom.
| To what extent would the absence of a digital broadcast copy protection
| the lack of high quality digital programming delay or prevent the DTV
| the resulting dynamic threaten the viability of over-the-air television?
What impact would
| this have on consumers?
This question begs the question of exactly who is in charge of the airwaves.
It is the FCC
that licenses the public resource of the broadcast spectrum in the name of the
people of the
United States. The broadcast spectrum is an overwhelmingly valuable resource,
given away at far, far under its true market value. (Imagine the amounts of
would be bid if television stations were licensed by an annual auction process.)
The problem would best be solved by the FCC pressing its mandate for parallel
and digital broadcasts. Quite simply, I recommend that the Commission "call the
and pass regulations that result in the revocation of the broadcast licenses of
television stations that refuse to provide digital equivalents of analog
It is highly unlikely that any television station will choose to relinquish
rather then get with the program. In the unlikely event that some television
refuse to meet the broadcast requirement, I'm sure that the FCC would have no
problem in finding replacements to take over the vacated channels.
To directly answer the first question, no dynamic will threaten the viability of
television. The value of an FCC television broadcast license is so
high that will always be profitable to operate a television network.
In answer to the second question:
1) The loss of "Hollywood blockbusters" on network television is extremely
the simple reason that network broadcast of motion pictures represents a very
percentage of the income of the motion picture industry. In short, networks pay
enormous amounts of money for the right to broadcast movies on commercial
television. The motion picture industry would suffer financial collapse if they
to boycott broadcast television, so they will not do it. All that is necessary
ensure that Hollywood motion pictures appear on digital television is to mandate
that digital television broadcasts mirror analog television broadcasts.
2) HDTV presentations of motion pictures are "prestige" events. The networks
are highly financially motivated to convince the motion picture studios to agree
broadcasts. No FCC involvement is necessary in this purely commercial process.
3) In the unlikely event that the resulting dynamic resulted in the removal of
some or all motion picture broadcasts from commercial television, the impact on
consumers would be minimal. With the advent of the wide variety of cable
movie channels, and the widespread availability of movie rentals, broadcast
television has largely focused on original programming -- television series
and sports events. The affect on consumers would be minimal because motion
pictures are widely and cheaply available in the context of cable television and
movie rentals. If tomorrow's movies are never broadcast on television, it
matter because you will be able to rent them for a dollar.
| On the reception side, we seek comment on whether the Commission should
| consumer electronics devices recognize and give effect to the ATSC flag or
| of content control mark. If so, we seek comment on whether htis mandate
| devices other than DTV broadcast receivers and what the resulting impact
would be on
I request that the Commission refrain from placing any requirements or
consumer electronics devices, for three reasons:
REASON 1: Such a requirement would conflict with Congressional intent with
regards to the
commercial broadcast spectrum.
The general policy regarding commercial broadcasts on the public resource of the
spectrum is that, with specific exceptions, they must be cleartext, and
unencrypted. This is
the entire reason that the content industry stands before you today. Congress
and the FCC
have mandated that digital television signals be transmitted in cleartext, and
industry doesn't like it.
The content industry is in effect requesting that the FCC perform an "end-run"
this requirement by establishing laws that would nullify the public benefit of
access to the public broadcast spectrum by effectively outlawing the production
reception equipment that does not impose the same encryption on the recovered
signal that is illegal during transmission.
I believe that the action of the Commission should mirror the approach taken in
Digital Millennium Copyright Act, specifically 17 USC 1201(k).
17 USC 1201(k) provides that all analog video recorders must be designed to
respond to a specific signal, commonly called Macrovision, and restrict or
prevent the recording of signals bearing this signal. In passing this
Congress was aware that there was a danger that broadcast stations would
the Macrovision signals, thus making certain broadcasts unrecordable on VCRs.
In order to prevent this, 17 USC 1201(k)(2) imposes a prohibition on the
of the Macrovision copy protection signal on terrestrial broadcast free
signals, making it a federal crime punishable by fines of up to $2,500 per
I believe that the FCC action should mirror the Congressional approach to the
public access to the broadcast spectrum, and not impose any restrictions of any
type on the right, or more specifically, the ability of the public to access the
REASON 2: Such a requirement would stifle both the "established entities"
of new technologies, as well as the more important "grass roots", or bottom-up
of new technologies.
The technology industry is famous for spectacular inventions by newcomers to the
industry. Some of the largest corporations in the industry were formed because
individual outsiders were able to invent and market new technologies without
government or industry supervision or interference. Examples are early personal
computers, such as the Apple II, and more recently the Linux operating system
the development of MP3 as a digital audio compression and distribution standard.
A requirement to recognize a "broadcast flag" would severely limit the sorts of
invention which would be possible and legal.
For instance, the development of "sampling" of music -- the creative utilization
short bits of existing recordings as the "raw material" for the creation of new
has revolutionized the music industry and created an entire spectrum of new art
It is not lost on the author that such works may not be legally distributed
obtaining copyright clearances on the original works, or justifying the use of
samples under other legal doctrine, such as fair use. However, the creative
requires that such artists have unfettered access to the world of recorded music
order to create such works in the first place. The creative process would be
destroyed if artists had to begin the creative process by licensing works, as
would have no ability to arrive on their expressions by "trial and error."
a great number of amateurs created "sampled" music as a hobby, some of which
will go on to become the copyright-paying professionals of the next generation.
Certainly, as individuals acquire the ability to manipulate television sounds
images, new and expressive art forms will arise. The progress of such new art
forms will be driven by the invention -- and availability -- of new video
technologies. Any technology that limits the ability of the general public to
manipulate audiovisual works, at the very least for their own personal
development, and entertainment, threatens to diminish or destroy an entire
field of developing artistic activity.
REASON 3: The real-world experience with the Audio Home Recording Act suggests
that such a requirement would reduce the demand for digital television
In the late 1980s, a new audio recording technology was invented -- Digital
Audio Tape, or DAT. DAT recorders provide the ability of consumers to make
digital audio recordings that exceed the sound quality of Compact Discs.
One would expect that such a format would rapidly replace cassettes. This did
not happen. Instead, DAT technology languished. Many observers, myself
included, blamed the lack of consumer acceptance of DAT on the Congressional
Mandated copy protection system called SCMS, as defined in 17 USC 10.
In short, SCMS permitted a DAT recording to be copied from one DAT deck to
another, but prevented any additional second or higher generation copies from
being made. In addition, CD players were designed in such a way as to impose
a "do not copy" signal which effectively blocked the production of DAT tapes
from CD players with digital outputs. SCMS was only required on decks
designated as "consumer" equipment -- "professional" equipment was exempted.
As an amateur musician, and collector of music by such bands as the Grateful
Dead that explicitly condone "audience taping" and non-commercial tape
trading of their live concerts, I was an early adopter of DAT technology. I
was also an active participant in online mailing lists of like-minded
and I can assure the Commission that the primary concern by person seeking
to use DAT technology was the ability to work around the copy protection
system in order to physically achieve what we had been granted legal
license to do -- make and trade concert tapes.
The result was that the vast majority of "consumer" DAT decks dropped off
of the market, leaving "professional" DAT recorders in their place. The
primary factor in market acceptance of DAT technology was the lack of
17 USC 10 provides an explicit exception to the SCMS requirement.
Computer equipment is excempt. This includes computer-based
CD recording drives.
There is a metric available that indicates what happened when copy-protection-
digital audio recording equipment (Computer-based CD recorders) hit the market.
The AHRA mandates the collection of percentage-based industry copyright
on the sales of all digital audio media and recorders, including both DAT tapes
CDRs labelled for audio use. The chart of collected royalties, as provided to
a third party, and unverified by the copyright office, graphically illustrates
failure and decline of copy-protected DAT technology, followed by the explosive
success of non-copy-protected CDR technology.
Digital Audio Royalty Collection In Dollars (The "DART" fund:)
I do not have the figures for 2001 and 2002. It might be worth the time of the
Commission to obtain them from the copyright office as an example of the
enormous market power of placing unrestricted, unrestrained technology in the
hands of consumers when it comes to inducing market success of new technologies.
For these three reasons, I believe that any imposition of copy protection or
technical requirements, either "at the point of demodulation", or at any later
would be contrary to Congressional intent, against the public interest, and
induce a market failure of digital television. I believe that copy protection
are absolutely and completely inappropriate in consumer set top boxes, digital
recordrs, digital servers, digital display devices, and as-of-yet unimagined and
I urge the Commission to stay the course, and require commercial broadcasters to
duplicate their analog broadcasts in their new, freely provided frequency
I request that the FCC adopt the policy that no corporation, network, or movie
have the ability to obstruct the process by withholding digital programming
continuing to enjoy the benefits of access to the analog spectrum. Permission to
on the public airwaves is a privilege, not a right, and with that privilege
responsibility to make their broadcasts available for public use. The
offered by the industry to curtail this responsibility are unjustified and
should be rejected.
The requirement of free access to the public broadcast spectrum is just as valid
in the public interest in the digital domain as it is in the analog domain.
Thank you for the opportunity to comment in this matter.
John M. Schulien