[Videolib] Fwd: [AMIA-L] how DRM becomes law

Judith Thomas (jthomas@virginia.edu)
Thu, 12 Jul 2007 16:57:39 -0400

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Below is a fascinating article on DRM technologies, with a call to
action for those with a stake in how information is shared, sold, and
controlled..

Judy Thomas
Robertson Media Center
University of Virginia

Begin forwarded message:

> From: Rick Prelinger <footage@PANIX.COM>
> Date: July 12, 2007 3:42:00 PM EDT
> To: AMIA-L@LSV.UKY.EDU
> Subject: [AMIA-L] how DRM becomes law
> Reply-To: Association of Moving Image Archivists <AMIA-L@LSV.UKY.EDU>
>
> Cory Doctorow has been writing excellent articles on the false
> promise of digital rights management. Here is his newest piece
> explaining the behind-the-scenes and not-so-pretty story about how
> the broadcast flag and other forms of DRM were conceived.
>
> Rick
>
> - - - - -
>
>
> A Behind-The-Scenes Look At How DRM Becomes Law
>
> Cory Doctorow looks at the back room dealing that allowed
> entertainment companies and electronics companies to craft public
> policy on digital rights management.
>
> By Cory Doctorow, InformationWeek
> July 11, 2007
> URL: http://www.informationweek.com/story/showArticle.jhtml?
> articleID=201000854
>
>
> Otto von Bismarck quipped, "Laws are like sausages, it is better
> not to see them being made." I've seen sausages made. I've seen
> laws made. Both processes are pleasant in comparison to the way
> anti-copying technology agreements are made.
>
> This technology, usually called "Digital Rights Management" (DRM)
> proposes to make it hard for your computer to copy some files.
> Because all computer operations involve copying, this is a daunting
> task -- as security expert Bruce Schneier has said, "Making bits
> harder to copy is like making water that's less wet."
>
> At root, DRMs are technologies that treat the owner of a computer
> or other device as an attacker, someone against whom the system
> must be armored. Like the electrical meter on the side of your
> house, a DRM is a technology that you possess, but that you are
> never supposed to be able to manipulate or modify. Unlike the your
> meter, though, a DRM that is defeated in one place is defeated in
> all places, nearly simultaneously. That is to say, once someone
> takes the DRM off a song or movie or e-book, that freed collection
> of bits can be sent to anyone else, anywhere the network reaches,
> in an eyeblink. DRM crackers need cunning: those who receive the
> fruits of their labor need only know how to download files from the
> Internet.
>
> Why manufacture a device that attacks its owner? One would assume
> that such a device would cost more to make than a friendlier one,
> and that customers would prefer not to buy devices that treat them
> as presumptive criminals. DRM technologies limit more than copying:
> they limit uses, such as viewing a movie in a different country,
> copying a song to a different manufacturer's player, or even
> pausing a movie for too long. Surely, this stuff hurts sales: Who
> goes into a store and asks, "Do you have any music that's locked to
> just one company's player? I'm in the market for some lock-in."
>
> The entertainment industry gets electronics companies to go along
> with DRM through a combination of rewards and threats.
>
> The reward is the entertainment industries' promise of access to
> their copyrighted works. Add DRM to your iPhone and we'll supply
> music for it. Add DRM to your TiVo and we'll let you plug it into
> our satellite receivers. Add DRM to your Zune and we'll let you
> retail our music in your Zune store.
>
> And the entertainment industry threatens to sue companies that
> don't comply. In recent years, entertainment companies fought over
> the creation of records, radios, jukeboxes, cable TV, VCRs, MP3
> players and other technologies that made it possible to experience
> a copyrighted work without the entertainment companies' permission.
> One battle serves as the archetype for the rest: the fight over the
> VCR.
>
> When Sony created the VCR, film studios were outraged. The studios
> had a DRM supplier they preferred, a company called Discovision
> that made non-recordable optical discs. Discovision was the only
> company authorized to play back movies in your living room. The
> only way to get a copyrighted work onto a VCR cassette was to
> record it off the TV, without permission.
>
> In their lawsuit, the studios argued that Sony -- whose Betamax was
> the canary in this legal coal mine -- was breaking the law by
> unjustly endangering their revenue from Discovision royalties.
> Sure, the studios could just sell pre-recorded Betamax tapes, but
> Betamax was a read-write medium: they could be copied. Moreover,
> your personal library of Betamax recordings of the Sunday night
> movie would eat into the market for Discovision discs: why would
> anyone buy a pre-recorded video cassette when they could amass all
> the video they needed with a home recorder and a rabbit-ear TV
> antenna?
>
> The Supreme Court threw out these arguments in a 1984 5-4 decision,
> the "Betamax Decision." This decision held that the VCR was legal
> because it was "capable of sustaining a substantially non-
> infringing use." That means that if you make a technology that your
> customers can use legally, you're not on the hook for the illegal
> stuff they do.
>
> This principle guided the creation of virtually every piece of IT
> invented since: the Web, search engines, YouTube, Blogger, Skype,
> ICQ, AOL, MySpace... You name it, if it's possible to violate
> copyright with it, the Betamax decision made it legal.
>
> Unfortunately, the Supremes shot the Betamax principle in the gut
> two years ago, with the Grokster decision. This decision says that
> a company can be found liable for its customers' bad acts if they
> can be shown to have "induced" copyright infringement. So, if your
> company advertises your product for an infringing use, or if it can
> be shown that you had infringement in mind at the design stage, you
> can be found liable for your customers' copying. The studios and
> record labels and broadcasters love this ruling, and they like to
> think that it's even broader than what the courts set out. For
> example, Viacom is suing Google for inducing copyright infringement
> by allowing YouTube users to flag some of their videos as private.
> Private videos can't be found by Viacom's copyright-enforcement
> bots, so Viacom says that privacy should be illegal, and that
> companies that give you the option of privacy should be sued for
> anything you do behind closed doors.
> The gutshot Betamax doctrine will bleed out all over the technology
> industry for decades (or until the courts or Congress restore it to
> health), providing a grisly reminder of what happens to companies
> that try to pour the entertainment companies' old wine into new
> digital bottles without permission. The tape-recorder was legal,
> but the digital tape-recorder is an inducement to infringement, and
> must be stopped.
>
> The promise of access to content and the threat of legal
> prosecution for non-compliance is enough to lure technology's
> biggest players to the DRM table.
>
> I started attending DRM meetings in March, 2002, on behalf of my
> former employers, the Electronic Frontier Foundation. My first
> meeting was the one where Broadcast Flag was born. The Broadcast
> Flag was weird even by DRM standards. Broadcasters are required, by
> law, to deliver TV and radio without DRM, so that any standards-
> compliant receiver can receive them. The airwaves belong to the
> public, and are loaned to broadcasters who have to promise to serve
> the public interest in exchange. But the MPAA and the broadcasters
> wanted to add DRM to digital TV, and so they proposed that a law
> should be passed that would make all manufacturers promise to
> pretend that there was DRM on broadcast signals, receiving them and
> immediately squirreling them away in encrypted form.
>
> The Broadcast Flag was hammered out in a group called the Broadcast
> Protection Discussion Group (BPDG) a sub-group from the MPAA's
> "Content Protection Technology Working Group," which also included
> reps from all the big IT companies (Microsoft, Apple, Intel, and so
> on), consumer electronics companies (Panasonic, Philips, Zenith),
> cable companies, satellite companies, and anyone else who wanted to
> pay $100 to attend the "public" meetings, held every six weeks or
> so (you can attend these meetings yourself if you find yourself
> near LAX on one of the upcoming dates).
>
> CPTWG (pronounced Cee-Pee-Twig) is a venerable presence in the DRM
> world. It was at CPTWG that the DRM for DVDs was hammered out.
> CPTWG meetings open with a "benediction," delivered by a lawyer,
> who reminds everyone there that what they say might be quoted "on
> the front page of the New York Times," (though journalists are
> barred from attending CPTWG meetings and no minutes are published
> by the organization) and reminding all present not to do anything
> that would raise eyebrows at the FTC's anti-trust division (I could
> swear I've seen the Microsoft people giggling during this part,
> though that may have been my imagination).
>
> The first part of the meeting is usually taken up with
> administrative business and presentations from DRM vendors, who
> come out to promise that this time they've really, really figured
> out how to make computers worse at copying. The real meat comes
> after the lunch, when the group splits into a series of smaller
> meetings, many of them closed-door and private (the representatives
> of the organizations responsible for managing DRM on DVDs splinter
> off at this point).
> Then comes the working group meetings, like the BPDG. The BPDG was
> nominally set up to set up the rules for the Broadcast Flag. Under
> the Flag, manufacturers would be required to limit their "outputs
> and recording methods" to a set of "approved technologies."
> Naturally, every manufacturer in the room showed up with a
> technology to add to the list of approved technologies -- and the
> sneakier ones showed up with reasons why their competitors'
> technologies shouldn't be approved. If the Broadcast Flag became
> law, a spot on the "approved technologies" list would be a license
> to print money: everyone who built a next-gen digital TV would be
> required, by law, to buy only approved technologies for their gear.
>
> The CPTWG determined that there would be three "chairmen" of the
> meetings: a representative from the broadcasters, a representative
> from the studios, and a representative from the IT industry (note
> that no "consumer rights" chair was contemplated -- we proposed one
> and got laughed off the agenda). The IT chair was filled by an
> Intel representative, who seemed pleased that the MPAA chair, Fox
> Studios's Andy Setos, began the process by proposing that the
> approved technologies should include only two technologies, both of
> which Intel partially owned.
>
> Intel's presence on the committee was both reassurance and threat:
> reassurance because Intel signaled the fundamental reasonableness
> of the MPAA's requirements -- why would a company with a bigger
> turnover than the whole movie industry show up if the negotiations
> weren't worth having? Threat because Intel was poised to gain an
> advantage that might be denied to its competitors.
>
> We settled in for a long negotiation. The discussions were drawn
> out and heated. At regular intervals, the MPAA reps told us that we
> were wasting time -- if we didn't hurry things along, the world
> would move on and consumers would grow accustomed to un-crippled
> digital TVs. Moreover, Rep Billy Tauzin, the lawmaker who'd
> evidently promised to enact the Broadcast Flag into law, was
> growing impatient.
>
> You'd think that a "technology working group" would concern itself
> with technology, but there was precious little discussion of bits
> and bytes, ciphers and keys. Instead, we focused on what amounted
> to contractual terms: if your technology got approved as a DTV
> "output," what obligations would you have to assume? If a TiVo
> could serve as an "output" for a receiver, what outputs would the
> TiVo be allowed to have?
>
> The longer we sat there, the more snarled these contractual terms
> became: winning a coveted spot on the "approved technology" list
> would be quite a burden! Once you were in the club, there were all
> sorts of rules about whom you could associate with, how you had to
> comport yourself and so on.
>
> One of these rules of conduct was "robustness." As a condition of
> approval, manufacturers would have to harden their technologies so
> that their customers wouldn't be able to modify, improve upon, or
> even understand their workings. As you might imagine, the people
> who made open source TV tuners were not thrilled about this, as
> "open source" and "non-user-modifiable" are polar opposites.
> Another was "renewability:" the ability of the studios to revoke
> outputs that had been compromised in the field. The studios
> expected the manufacturers to make products with remote "kill
> switches" that could be used to shut down part or all of their
> device if someone, somewhere had figured out how to do something
> naughty with it. They promised that we'd establish criteria for
> renewability later, and that it would all be "fair."
>
> But we soldiered on. The MPAA had a gift for resolving the worst
> snarls: when shouting failed, they'd lead any recalcitrant player
> out of the room and negotiate in secret with them, leaving the rest
> of us to cool our heels. Once, they took the Microsoft team out of
> the room for six hours, then came back and announced that digital
> video would be allowed to output on non-DRM monitors at a greatly
> reduced resolution (this "feature" appears in Vista as "fuzzing").
>
> The further we went, the more nervous everyone became. We were
> headed for the real meat of the negotiations: the criteria by which
> approved technology would be evaluated: how many bits of crypto
> would you need? Which ciphers would be permissible? Which features
> would and wouldn't be allowed?
>
> Then the MPAA dropped the other shoe: the sole criterion for
> inclusion on the list would be the approval of one of its member-
> companies, or a quorum of broadcasters. In other words, the
> Broadcast Flag wouldn't be an "objective standard," describing the
> technical means by which video would be locked away -- it would be
> purely subjective, up to the whim of the studios. You could have
> the best product in the world, and they wouldn't approve it if your
> business-development guys hadn't bought enough drinks for their
> business-development guys at a CES party.
>
> To add insult to injury, the only technologies that the MPAA were
> willing to consider for initial inclusion as "approved" were the
> two that Intel was involved with. The Intel co-chairman had a hard
> time hiding his grin. He'd acted as Judas goat, luring in Apple,
> Microsoft, and the rest, to legitimize a process that would force
> them to license Intel's patents for every TV technology they
> shipped until the end of time.
>
> Why did the MPAA give Intel such a sweetheart deal? At the time, I
> figured that this was just straight quid pro quo, like Hannibal
> said to Clarice. But over the years, I started to see a larger
> pattern: Hollywood likes DRM consortia, and they hate individual
> DRM vendors. (I've written an entire article about this, but here's
> the gist: a single vendor who succeeds can name their price and
> terms -- think of Apple or Macrovision -- while a consortium is a
> more easily divided rabble, susceptible to co-option in order to
> produce ever-worsening technologies -- think of Blu-Ray and HD-
> DVD). Intel's technologies were held through two consortia, the 5C
> and 4C groups.
> The single-vendor manufacturers were livid at being locked out of
> the digital TV market. The final report of the consortiumv
> reflected this -- a few sheets written by the chairmen describing
> the "consensus" and hundreds of pages of angry invective from
> manufacturers and consumer groups decrying it as a sham.
>
> Tauzin washed his hands of the process: a canny, sleazy Hill
> operator, he had the political instincts to get his name off any
> proposal that could be shown to be a plot to break voters'
> televisions (Tauzin found a better industry to shill for, the
> pharmaceutical firms, who rewarded him with a $2,000,000/year job
> as chief of PHARMA, the pharmaceutical lobby).
>
> Even Representative Ernest "Fritz" Hollings ("The Senator from
> Disney," who once proposed a bill requiring entertainment industry
> oversight of all technologies capable of copying) backed away from
> proposing a bill that would turn the Broadcast Flag into law.
> Instead, Hollings sent a memo to Michael Powell, then-head of the
> FCC, telling him that the FCC already had jurisdiction to enact a
> Broadcast Flag regulation, without Congressional oversight.
>
> Powell's staff put Hollings's letter online, as they are required
> to do by federal sunshine laws. The memo arrived as a Microsoft
> Word file -- which EFF then downloaded and analyzed. Word stashes
> the identity of a document's author in the file metadata, which is
> how EFF discovered that the document had been written by a staffer
> at the MPAA.
>
> This was truly remarkable. Hollings was a powerful committee
> chairman, one who had taken immense sums of money from the
> industries he was supposed to be regulating. It's easy to be
> cynical about this kind of thing, but it's genuinely unforgivable:
> politicians draw a public salary to sit in public office and work
> for the public good. They're supposed to be working for us, not
> their donors.
>
> But we all know that this isn't true. Politicians are happy to give
> special favors to their pals in industry. However, the Hollings
> memo was beyond the pale. Staffers for the MPAA were writing
> Hollings's memos, memos that Hollings then signed and mailed off to
> the heads of major governmental agencies.
>
> The best part was that the legal eagles at the MPAA were wrong. The
> FCC took "Hollings's" advice and enacted a Broadcast Flag
> regulation that was almost identical to the proposal from the BPDG,
> turning themselves into America's "device czars," able to burden
> any digital technology with "robustness," "compliance" and
> "revocation rules." The rule lasted just long enough for the DC
> Circuit Court of Appeals to strike it down and slap the FCC for
> grabbing unprecedented jurisdiction over the devices in our living
> rooms.
>
> So ended the saga of the Broadcast Flag. More or less. In the years
> since the Flag was proposed, there have been several attempts to
> reintroduce it through legislation, all failed. And as more and
> more innovative, open devices like the Neuros OSD enter the market,
> it gets harder and harder to imagine that Americans will accept a
> mandate that takes away all that functionality.
> But the spirit of the Broadcast Flag lives on. DRM consortia are
> all the rage now -- outfits like AACS LA, the folks who control the
> DRM in Blu-Ray and HD-DVD, are thriving and making headlines by
> issuing fatwas against people who publish their secret integers. In
> Europe, a DRM consortium working under the auspices of the Digital
> Video Broadcasters Forum (DVB) has just shipped a proposed standard
> for digital TV DRM that makes the Broadcast Flag look like the work
> of patchouli-scented infohippies. The DVB proposal would give DRM
> consortium the ability to define what is and isn't a valid
> "household" for the purposes of sharing your video within your
> "household's devices." It limits how long you're allowed to pause a
> video for, and allows for restrictions to be put in place for
> hundreds of years, longer than any copyright system in the world
> would protect any work for.
>
> If all this stuff seems a little sneaky, underhanded and even
> illegal to you, you're not alone. When representatives of nearly
> all the world's entertainment, technology, broadcast, satellite and
> cable companies gather in a room to collude to cripple their
> offerings, limit their innovation, and restrict the market,
> regulators take notice.
>
> That's why the EU is taking a hard look at HD-DVD and Blu-Ray.
> These systems aren't designed: they're governed, and the governors
> are shadowy group of offshore giants who answer to no one -- not
> even their own members! I once called the DVD-Copy Control
> Association (DVD-CCA) on behalf of a Time-Warner magazine, Popular
> Science, for a comment about their DRM. Not only wouldn't they
> allow me to speak to a spokesman, the person who denied my request
> also refused to be identified.
>
> The sausage factory grinds away, but today, more activists than
> ever are finding ways to participate in the negotiations, slowing
> them up, making them account for themselves to the public. And so
> long as you, the technology-buying public, pay attention to what's
> going on, the activists will continue to hold back the tide.
>
> Cory Doctorow is co-author of the Boing Boing blog, as well as a
> journalist, Internet activist, and science fiction writer. Read his
> previous InformationWeek columns.
> --
>
> Rick Prelinger
> Prelinger Archives http://www.prelinger.com
> P.O. Box 590622, San Francisco, Calif. 94159-0622 USA
> footage@panix.com
>
> Prelinger Library: http://www.prelingerlibrary.org
>
> NEW: Prelinger Library Digital Collections
> http://www.archive.org/details/prelinger_library

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Below is a fascinating article = on DRM technologies, with a call to action for those with a stake in how = information is shared, sold, and controlled..



Judy Thomas
Robertson = Media Center
University of Virginia

Begin = forwarded message:

From: = Rick Prelinger <footage@PANIX.COM>
Date: = July 12, 2007 3:42:00 PM EDT
To: AMIA-L@LSV.UKY.EDU
Subject: = [AMIA-L] how DRM becomes law
Reply-To: = Association of Moving Image Archivists <AMIA-L@LSV.UKY.EDU>
=

Cory = Doctorow has been writing excellent articles on the false promise of = digital rights management.=A0 = Here is his newest piece explaining the behind-the-scenes and = not-so-pretty story about how the broadcast flag and other forms of DRM = were conceived.

Rick

- - - - -


A = Behind-The-Scenes Look At How DRM Becomes Law

Cory = Doctorow looks at the back room dealing that allowed entertainment = companies and electronics companies to craft public policy on digital = rights management.
By Cory Doctorow,=A0 InformationWeek
July 11, 2007
URL: http://www.informationweek.com/story/showArticle.jhtml?articleI= D=3D201000854


Otto von = Bismarck quipped, "Laws are like sausages, it is better not to see them = being made." I've seen sausages made. I've seen laws made. Both = processes are pleasant in comparison to the way anti-copying technology = agreements are made.
This technology, usually called = "Digital Rights Management" (DRM) proposes to make it hard for your = computer to copy some files. Because all computer operations involve = copying, this is a daunting task -- as security expert Bruce Schneier = has said, "Making bits harder to copy is like making water that's less = wet."

At root, DRMs are technologies that treat the owner = of a computer or other device as an attacker, someone against whom the = system must be armored. Like the electrical meter on the side of your = house, a DRM is a technology that you possess, but that you are never = supposed to be able to manipulate or modify. Unlike the your meter, = though, a DRM that is defeated in one place is defeated in all places, = nearly simultaneously. That is to say, once someone takes the DRM off a = song or movie or e-book, that freed collection of bits can be sent to = anyone else, anywhere the network reaches, in an eyeblink. DRM crackers = need cunning: those who receive the fruits of their labor need only know = how to download files from the Internet.

Why = manufacture a device that attacks its owner? One would assume that such = a device would cost more to make than a friendlier one, and that = customers would prefer not to buy devices that treat them as presumptive = criminals. DRM technologies limit more than copying: they limit uses, = such as viewing a movie in a different country, copying a song to a = different manufacturer's player, or even pausing a movie for too long. = Surely, this stuff hurts sales: Who goes into a store and asks, "Do you = have any music that's locked to just one company's player? I'm in the = market for some lock-in."

The entertainment industry gets = electronics companies to go along with DRM through a combination of = rewards and threats.
The reward is the entertainment = industries' promise of access to their copyrighted works. Add DRM to = your iPhone and we'll supply music for it. Add DRM to your TiVo and = we'll let you plug it into our satellite receivers. Add DRM to your Zune = and we'll let you retail our music in your Zune store.

And the = entertainment industry threatens to sue companies that don't comply. In = recent years, entertainment companies fought over the creation of = records, radios, jukeboxes, cable TV, VCRs, MP3 players and other = technologies that made it possible to experience a copyrighted work = without the entertainment companies' permission.
One battle serves as the archetype for the rest: the = fight over the VCR.
When Sony created the VCR, film = studios were outraged. The studios had a DRM supplier they preferred, a = company called Discovision that made non-recordable optical discs. = Discovision was the only company authorized to play back movies in your = living room. The only way to get a copyrighted work onto a VCR cassette = was to record it off the TV, without permission.

In their = lawsuit, the studios argued that Sony -- whose Betamax was the canary in = this legal coal mine -- was breaking the law by unjustly endangering = their revenue from Discovision royalties. Sure, the studios could just = sell pre-recorded Betamax tapes, but Betamax was a read-write medium: = they could be copied. Moreover, your personal library of Betamax = recordings of the Sunday night movie would eat into the market for = Discovision discs: why would anyone buy a pre-recorded video cassette = when they could amass all the video they needed with a home recorder and = a rabbit-ear TV antenna?

The Supreme Court threw out = these arguments in a 1984 5-4 decision, the "Betamax Decision." This = decision held that the VCR was legal because it was "capable of = sustaining a substantially non-infringing use." That means that if you = make a technology that your customers can use legally, you're not on the = hook for the illegal stuff they do.

This principle guided the = creation of virtually every piece of IT invented since: the Web, search = engines, YouTube, Blogger, Skype, ICQ, AOL, MySpace... You name it, if = it's possible to violate copyright with it, the Betamax decision made it = legal.

Unfortunately, the Supremes shot the Betamax = principle in the gut two years ago, with the Grokster decision. This = decision says that a company can be found liable for its customers' bad = acts if they can be shown to have "induced" copyright infringement. So, = if your company advertises your product for an infringing use, or if it = can be shown that you had infringement in mind at the design stage, you = can be found liable for your customers' copying. The studios and record = labels and broadcasters love this ruling, and they like to think that = it's even broader than what the courts set out. For example, Viacom is = suing Google for inducing copyright infringement by allowing YouTube = users to flag some of their videos as private. Private videos can't be = found by Viacom's copyright-enforcement bots, so Viacom says that = privacy should be illegal, and that companies that give you the option = of privacy should be sued for anything you do behind closed = doors.
The gutshot Betamax doctrine = will bleed out all over the technology industry for decades (or until = the courts or Congress restore it to health), providing a grisly = reminder of what happens to companies that try to pour the entertainment = companies' old wine into new digital bottles without permission. The = tape-recorder was legal, but the digital tape-recorder is an inducement = to infringement, and must be stopped.

The promise = of access to content and the threat of legal prosecution for = non-compliance is enough to lure technology's biggest players to the DRM = table.

I started attending DRM meetings in March, 2002, on = behalf of my former employers, the Electronic Frontier Foundation. My = first meeting was the one where Broadcast Flag was born. The Broadcast = Flag was weird even by DRM standards. Broadcasters are required, by law, = to deliver TV and radio without DRM, so that any standards-compliant = receiver can receive them. The airwaves belong to the public, and are = loaned to broadcasters who have to promise to serve the public interest = in exchange. But the MPAA and the broadcasters wanted to add DRM to = digital TV, and so they proposed that a law should be passed that would = make all manufacturers promise to pretend that there was DRM on = broadcast signals, receiving them and immediately squirreling them away = in encrypted form.
The Broadcast Flag was hammered = out in a group called the Broadcast Protection Discussion Group (BPDG) a = sub-group from the MPAA's "Content Protection Technology Working Group," = which also included reps from all the big IT companies (Microsoft, = Apple, Intel, and so on), consumer electronics companies (Panasonic, = Philips, Zenith), cable companies, satellite companies, and anyone else = who wanted to pay $100 to attend the "public" meetings, held every six = weeks or so (you can attend these meetings yourself if you find yourself = near LAX on one of the upcoming dates).

CPTWG = (pronounced Cee-Pee-Twig) is a venerable presence in the DRM world. It = was at CPTWG that the DRM for DVDs was hammered out. CPTWG meetings open = with a "benediction," delivered by a lawyer, who reminds everyone there = that what they say might be quoted "on the front page of the New York = Times," (though journalists are barred from attending CPTWG meetings and = no minutes are published by the organization) and reminding all present = not to do anything that would raise eyebrows at the FTC's anti-trust = division (I could swear I've seen the Microsoft people giggling during = this part, though that may have been my imagination).

The = first part of the meeting is usually taken up with administrative = business and presentations from DRM vendors, who come out to promise = that this time they've really, really figured out how to make computers = worse at copying. The real meat comes after the lunch, when the group = splits into a series of smaller meetings, many of them closed-door and = private (the representatives of the organizations responsible for = managing DRM on DVDs splinter off at this point).
Then comes the working group meetings, like the = BPDG. The BPDG was nominally set up to set up the rules for the = Broadcast Flag. Under the Flag, manufacturers would be required to limit = their "outputs and recording methods" to a set of "approved = technologies." Naturally, every manufacturer in the room showed up with = a technology to add to the list of approved technologies -- and the = sneakier ones showed up with reasons why their competitors' technologies = shouldn't be approved. If the Broadcast Flag became law, a spot on the = "approved technologies" list would be a license to print money: everyone = who built a next-gen digital TV would be required, by law, to buy only = approved technologies for their gear.

The CPTWG = determined that there would be three "chairmen" of the meetings: a = representative from the broadcasters, a representative from the studios, = and a representative from the IT industry (note that no "consumer = rights" chair was contemplated -- we proposed one and got laughed off = the agenda). The IT chair was filled by an Intel representative, who = seemed pleased that the MPAA chair, Fox Studios's Andy Setos, began the = process by proposing that the approved technologies should include only = two technologies, both of which Intel partially owned.

Intel's = presence on the committee was both reassurance and threat: reassurance = because Intel signaled the fundamental reasonableness of the MPAA's = requirements -- why would a company with a bigger turnover than the = whole movie industry show up if the negotiations weren't worth having? = Threat because Intel was poised to gain an advantage that might be = denied to its competitors.

We settled in for a long = negotiation. The discussions were drawn out and heated. At regular = intervals, the MPAA reps told us that we were wasting time -- if we = didn't hurry things along, the world would move on and consumers would = grow accustomed to un-crippled digital TVs. Moreover, Rep Billy Tauzin, = the lawmaker who'd evidently promised to enact the Broadcast Flag into = law, was growing impatient.

You'd think that a "technology = working group" would concern itself with technology, but there was = precious little discussion of bits and bytes, ciphers and keys. Instead, = we focused on what amounted to contractual terms: if your technology got = approved as a DTV "output," what obligations would you have to assume? = If a TiVo could serve as an "output" for a receiver, what outputs would = the TiVo be allowed to have?

The longer we sat there, the = more snarled these contractual terms became: winning a coveted spot on = the "approved technology" list would be quite a burden! Once you were in = the club, there were all sorts of rules about whom you could associate = with, how you had to comport yourself and so on.

One of = these rules of conduct was "robustness." As a condition of approval, = manufacturers would have to harden their technologies so that their = customers wouldn't be able to modify, improve upon, or even understand = their workings. As you might imagine, the people who made open source TV = tuners were not thrilled about this, as "open source" and = "non-user-modifiable" are polar opposites.
Another = was "renewability:" the ability of the studios to revoke outputs that = had been compromised in the field. The studios expected the = manufacturers to make products with remote "kill switches" that could be = used to shut down part or all of their device if someone, somewhere had = figured out how to do something naughty with it. They promised that we'd = establish criteria for renewability later, and that it would all be = "fair."

But we soldiered on. The MPAA had a gift for = resolving the worst snarls: when shouting failed, they'd lead any = recalcitrant player out of the room and negotiate in secret with them, = leaving the rest of us to cool our heels. Once, they took the Microsoft = team out of the room for six hours, then came back and announced that = digital video would be allowed to output on non-DRM monitors at a = greatly reduced resolution (this "feature" appears in Vista as = "fuzzing").

The further we went, the more nervous everyone = became. We were headed for the real meat of the negotiations: the = criteria by which approved technology would be evaluated: how many bits = of crypto would you need? Which ciphers would be permissible? Which = features would and wouldn't be allowed?

Then the MPAA = dropped the other shoe: the sole criterion for inclusion on the list = would be the approval of one of its member-companies, or a quorum of = broadcasters. In other words, the Broadcast Flag wouldn't be an = "objective standard," describing the technical means by which video = would be locked away -- it would be purely subjective, up to the whim of = the studios. You could have the best product in the world, and they = wouldn't approve it if your business-development guys hadn't bought = enough drinks for their business-development guys at a CES = party.

To add insult to injury, the only technologies that = the MPAA were willing to consider for initial inclusion as "approved" = were the two that Intel was involved with. The Intel co-chairman had a = hard time hiding his grin. He'd acted as Judas goat, luring in Apple, = Microsoft, and the rest, to legitimize a process that would force them = to license Intel's patents for every TV technology they shipped until = the end of time.

Why did the MPAA give Intel such a sweetheart deal? = At the time, I figured that this was just straight quid pro quo, like = Hannibal said to Clarice. But over the years, I started to see a larger = pattern: Hollywood likes DRM consortia, and they hate individual DRM = vendors. (I've written an entire article about this, but here's the = gist: a single vendor who succeeds can name their price and terms -- = think of Apple or Macrovision -- while a consortium is a more easily = divided rabble, susceptible to co-option in order to produce = ever-worsening technologies -- think of Blu-Ray and HD-DVD). Intel's = technologies were held through two consortia, the 5C and 4C = groups.
The single-vendor manufacturers = were livid at being locked out of the digital TV market. The final = report of the consortiumv reflected this -- a few sheets written by the = chairmen describing the "consensus" and hundreds of pages of angry = invective from manufacturers and consumer groups decrying it as a = sham.

Tauzin washed his hands of the process: a canny, = sleazy Hill operator, he had the political instincts to get his name off = any proposal that could be shown to be a plot to break voters' = televisions (Tauzin found a better industry to shill for, the = pharmaceutical firms, who rewarded him with a $2,000,000/year job as = chief of PHARMA, the pharmaceutical lobby).

Even = Representative Ernest "Fritz" Hollings ("The Senator from Disney," who = once proposed a bill requiring entertainment industry oversight of all = technologies capable of copying) backed away from proposing a bill that = would turn the Broadcast Flag into law. Instead, Hollings sent a memo to = Michael Powell, then-head of the FCC, telling him that the FCC already = had jurisdiction to enact a Broadcast Flag regulation, without = Congressional oversight.

Powell's staff put Hollings's = letter online, as they are required to do by federal sunshine laws. The = memo arrived as a Microsoft Word file -- which EFF then downloaded and = analyzed. Word stashes the identity of a document's author in the file = metadata, which is how EFF discovered that the document had been written = by a staffer at the MPAA.

This was truly remarkable. = Hollings was a powerful committee chairman, one who had taken immense = sums of money from the industries he was supposed to be regulating. It's = easy to be cynical about this kind of thing, but it's genuinely = unforgivable: politicians draw a public salary to sit in public office = and work for the public good. They're supposed to be working for us, not = their donors.

But we all know that this isn't true. Politicians = are happy to give special favors to their pals in industry. However, the = Hollings memo was beyond the pale. Staffers for the MPAA were writing = Hollings's memos, memos that Hollings then signed and mailed off to the = heads of major governmental agencies.

The best part = was that the legal eagles at the MPAA were wrong. The FCC took = "Hollings's" advice and enacted a Broadcast Flag regulation that was = almost identical to the proposal from the BPDG, turning themselves into = America's "device czars," able to burden any digital technology with = "robustness," "compliance" and "revocation rules." The rule lasted just = long enough for the DC Circuit Court of Appeals to strike it down and = slap the FCC for grabbing unprecedented jurisdiction over the devices in = our living rooms.

So ended the saga of the Broadcast Flag. More or = less. In the years since the Flag was proposed, there have been several = attempts to reintroduce it through legislation, all failed. And as more = and more innovative, open devices like the Neuros OSD enter the market, = it gets harder and harder to imagine that Americans will accept a = mandate that takes away all that functionality.
But the spirit of the Broadcast Flag lives on. DRM = consortia are all the rage now -- outfits like AACS LA, the folks who = control the DRM in Blu-Ray and HD-DVD, are thriving and making headlines = by issuing fatwas against people who publish their secret integers. In = Europe, a DRM consortium working under the auspices of the Digital Video = Broadcasters Forum (DVB) has just shipped a proposed standard for = digital TV DRM that makes the Broadcast Flag look like the work of = patchouli-scented infohippies. The DVB proposal would give DRM = consortium the ability to define what is and isn't a valid "household" = for the purposes of sharing your video within your "household's = devices." It limits how long you're allowed to pause a video for, and = allows for restrictions to be put in place for hundreds of years, longer = than any copyright system in the world would protect any work = for.

If all this stuff seems a little sneaky, underhanded = and even illegal to you, you're not alone. When representatives of = nearly all the world's entertainment, technology, broadcast, satellite = and cable companies gather in a room to collude to cripple their = offerings, limit their innovation, and restrict the market, regulators = take notice.

That's why the EU is taking a hard look at HD-DVD = and Blu-Ray. These systems aren't designed: they're governed, and the = governors are shadowy group of offshore giants who answer to no one -- = not even their own members! I once called the DVD-Copy Control = Association (DVD-CCA) on behalf of a Time-Warner magazine, Popular = Science, for a comment about their DRM. Not only wouldn't they allow me = to speak to a spokesman, the person who denied my request also refused = to be identified.

The sausage factory grinds away, but today, more = activists than ever are finding ways to participate in the negotiations, = slowing them up, making them account for themselves to the public. And = so long as you, the technology-buying public, pay attention to what's = going on, the activists will continue to hold back the tide.

Cory = Doctorow is co-author of the Boing Boing blog, as well as a journalist, = Internet activist, and science fiction writer. Read his previous = InformationWeek columns.
--=A0

Rick = Prelinger
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