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List:       dmca-discuss
Subject:    [DMCA_Discuss] P2PNet on Broadcast Flag -- And More
From:       Seth Johnson <seth.johnson () realmeasures ! dyndns ! org>
Date:       2002-12-21 9:09:10
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> http://www.p2pnet.net/issue06/lead.html


Broadcast Flag - to be, or not to be?


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. 

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: 

US senator Howard Berman's P2P hacking bill
(http://thomas.loc.gov/cgi-bin/bdquery/z?d107:h.r.05211)
behind which Hollywood would have been able to pretty well
hack at will without fear of prosecution or retribution -
from the law, at least. Of it, Ed Black, President and CEO
of CCIA (Computer & Communications Industry Association)
said here
(http://www.mi2n.com/press.php3?ej=md&press_nb=39623),
"Hollywood moguls have long railed against illicit tampering
with their protected content by 'hackers' and 'Internet
pirates.' Now the Hollywood studios and the recording
industry seek statutory authority for their own hacking,
spoofing, and virus attacks, with the capability to shut
down many Internet websites and services at their
discretion." He added, "No other industry has been deputized
to prosecute its own enforcement actions, and we see no
compelling reason to provide this enormous grant of power to
Hollywood."
We also had Senator Fritz Hollings' anti-piracy CBDTPA
(Consumer Broadband and Digital Television Promotion Act)
(http://www.politechbot.com/docs/cbdtpa/), described here
(http://www.politechbot.com/docs/cbdtpa/hrrc.cbdtpa.032202.html)
by Home Recording Rights Coalition chairman Gary Shapiro as,
"a particularly dangerous delegation of broad, unfettered
regulatory authority, which could have severe, adverse,
long-term consequences for American consumers. Indeed, this
is a breathtaking delegation of authority to a regulatory
agency that is ill-equipped to perform such a monumental
task." 
And this June, there was the Sonicblue fiasco. Sonicblue
makes the Diamond Rio range of portable mp3 players, among
other products, and has never been exactly popular with the
entertainment industry. But Rio really upset them,
especially the RIAA. So, copyright lawsuits flew thick and
fast until they were eventually settled out of court. Then
came Sonicblue's ReplayTV 4000 DVR with 'autoskip' to allow
you to bypass commercials. And not only that, ReplayTV 4000
has a high-speed Net port so you can download and transfer
video files and share recorded programs over the Net with up
to 15 of your friends. In other words, it gives you complete
control over how, what, where and when. Enter Charles F.
Eick, a Central District Court Magistrate out of LA who,
during pre-trial discovery in a lawsuit with Sonicblue in
the sights, in effect ordered the company to modify its
DVR's to collect data on what tv-watchers watch and to then
pass the information to a group including Paramount,
Universal, Walt Disney and Metro-Goldwyn-Mayer; and, CBC,
ABC and NBC - the very same crew which was suing Sonicblue
for alleged copyright violations. Federal judge
Florence-Marie Cooper overturned her colleague's order. 
Also in June, the MPAA (Motion Picture Association of
America) joined cable operators in urging the FCC to allow
remote shutoffs to set-top boxes, said the Consumer
Electronics Association (CEA) and Home Recording Rights
Coalition (HRRC). "By supporting what is referred to as
'Selectable Output Control', both the MPAA and the National
Cable and Telecommunications Association (NCTA), are
betraying assurances recently given to the Congress and to
consumers," said the HRRC on its web page at
http://www.hrcc.org. The Selectable Output Control
capability is, "unconscionable remote control of America's
living rooms and which Hollywood studio executives rebuked
earlier this year during congressional hearings on digital
copy protection," states the CEA. "Earlier this year,
Hollywood executives told Congress selectable output
controls were outdated and no longer needed, provided home
copies are not redistributed over the Internet," said CEA VP
of Technology Policy Michael Petricone, "but MPAA's filing
yesterday supports the notion that cable should have the
capability of controlling a consumer's television set. Which
position are we to believe; the one expressed before
Congress or this latest stance taken with a federal agency?"
Which indeed? 

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 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 and
different international police bodies already exists, and
has done for decades. And needless to say, enforcement and
surveillance 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
(http://www.musicdish.com/mag/index.php3?id=6198). 

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
(http://www.cptwg.org/Assets/BPDG/philips_ocps_bpdg1.4t.rtf)
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"
(http://www.cptwg.org/Assets/BPDG/philips_ocps_bpdg1.4t.rtf).

"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
(http://commdocs.house.gov/committees/judiciary/hju65223.000/hju65223_0f.htm). 

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
(http://www.opensecrets.org/politicians/contrib.asp?CID=N00008094&cycle=2002),
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"
(http://www.wired.com/news/conflict/0%2C2100%2C47552%2C00.html): 

"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. 

If you have any thoughts on this, email us here
(mailto:mail@p2pnet.net?subject=Sweden and Denmark). 

OR - if you've got any Hot Tips or Don't Miss This news
leads, email us here
(mailto:mail@p2pnet.net?subject=Broadcast Flag).

_______________________________________________


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