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The broadcast protection racket

There is a massive debate taking place at a global level about the future of creativity and innovation. At the center of this debate is a single concept: What does it mean when we say that something is free?

In our culture, the expected response is that the commodity in question is offered without an expectation of payment from the consumer. But there is a larger and more important meaning — one the French distinguish with the words libre and gratis — freedom vs. economic cost.

A resource is free if one can use it without the permission of anyone else or if the permission one needs is granted neutrally. Richard Stallman, founder of the Free Software Foundation, says to think of free as in free speech, not free beer.

For nearly a century, broadcasters have been in the business of providing free entertainment and information. Anyone with a radio or TV receiver can pull this commodity out of the air without permission from the content owners.

In reality, we all understand that broadcast radio and TV are not free. We support non-commercial broadcasts via taxes and donations. We support commercial broadcasts through the consumption of the products that are advertised, knowing the advertising revenues pay for the broadcaster's content, operations and profits.

At the center of the debate on the future of digital media is the question of whether content should remain free, in the traditional sense of our freedom to consume it without permission, or whether our access to content will be controlled.

Much of what I have just written borders on plagiarism. These are not my original thoughts, but rather an extension of the ideas put forth by Richard Stallman and Lawrence Lessig, both authors of several books on the subject. Although Lessig is a lawyer, I have no concern that he will seek compensation for the use of his ideas. Just the opposite is true. You can obtain a copy of his book, “Free Culture,” in PDF format for free via the Internet. The license only requires that I acknowledge his work.

Such is the nature of free culture. We continuously build on the efforts of creators and innovators. And we are building on a centuries-old tradition of granting these creators and inventors a limited window of opportunity to exploit their efforts before their work enters the public commons for others to build on.

The most commonly cited precedent for American copyright is a 1710 British decree called the Statute of Anne. According to Don Lambriola, who writes for PC Magazine: “It was ostensibly designed to control heretical texts that were deemed a danger to society, but it also helped eradicate rogue Scottish publishers who, by printing pirate editions of registered books, had been cutting into the profits of Crown-licensed printers.” The law gave printers a 28-year monopoly on the reproduction of books that they had registered with the Crown. Lambriola explores the history of copyright as part of a series on digital content protection. (For more, see “Web links” on page 16.)

What made the Statute of Anne particularly noteworthy was its strict limitation on the duration of these printing monopolies. At the end of that period, rights owners were considered to have been fairly compensated, and books became property of the general populace. In this way, the statute provided an elegant balance between the public good and the interests of content owners.

The framers of the U.S. Constitution recognized this delicate balance and gave Congress the power to give authors and inventors exclusive rights to their creations for a limited time. This resulted in the 1790 Copyright Act, which, in the spirit of the Statute of Anne, established 28-year protection for books, maps and charts.

Over the past century, U.S. copyright law has been rewritten 11 times, each time extending the period of protection, the scope of content that is protected and the penalties for illegal copying. The Constitutional intent for the rapid proliferation of ideas into the public commons has all but been eliminated.

The broadcast flag

As you read this, new regulations from the FCC were supposed to take effect to protect digital television broadcasts from potential redistribution via the Internet. (See “Free no more?” in “Web links.”) The regulations would require that all new products, which may come in contact with the bits from a digital television broadcast, must look for and deal properly with the broadcast flag.

To implement these regulations, the FCC set itself up as the arbiter of technologies that can be used to protect DTV broadcasts, in essence dictating design requirements for every new TV, personal computer and digital networking product that can be sold in the United States.

On May 6, 2005, the U.S. Court of Appeals for the District of Columbia issued a decision that vacates the FCC regulations. “The broadcast flag regulations exceed the agency's delegated authority under the statute,” a three-judge panel unanimously concluded. “The FCC has no authority to regulate consumer electronic devices that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission.” (For the full court ruling, see “Web links.”)

Piracy or promotion?

If content protection is so crucial to the future of broadcasting, how did broadcasters manage to survive without it for nearly a century?

Broadcasters have been providing content in the free and clear since the bargain was reached to grant licenses for use of the public spectrum resource. One can argue that no technology has had a more profound impact on our lives than broadcasting. For decades, it reigned supreme as the public hearth around which the masses shared entertainment and information. It became the 20th century's public commons.

One can now argue that the Internet has become the public commons of the 21st century. Broadcasters now compete not only with a variety of alternative means of distribution for radio and television content, but also for the attention of consumers faced with a multitude of choices related to how they spend their entertainment dollars and time.

Facing these challenges, one must question why broadcasters would support any efforts to place more restrictive controls on their products. Certainly there is reason to be concerned about any threat to the sustainability of the medium. We have all heard the warnings: If broadcast content is not protected, the content conglomerates will not make their best content available to broadcasters.

But this is a hollow argument; it has been a long time since these conglomerates have relied upon broadcasters to deliver their best content. That privilege is now reserved for premium cable and DBS distribution channels and packaged media. Hollywood pulled out all the stops to kill the VCR and then used it to make billions. Now the DVD — perhaps the most securely protected medium in the history of consumer electronics — is turning into a distribution channel, not only for movies, but television content as well.

Helping the content conglomerates consolidate their power, their control over the ways in which they will grant consumers permission to use this content, would appear to run counter to the interests of broadcasters. What broadcasters do best is proliferate entertainment and information into the public commons to make the masses aware of the creative efforts of the content creators and performers. The content conglomerates depend on broadcasting to promote virtually everything they do.

What is radio (at least the music side of it), but a gigantic promotional engine for the music industry? What is the most important role of a TV station? To distribute content to the masses or provide a public commons for the communities they serve?

Perhaps the time has come for broadcasters to consider which side of this battle they are on. Protecting the interests of the media conglomerates who seek to control all forms of digital media distribution is short-sighted. Broadcasters are in the business of proliferation of culture — not controlling it.

Craig Birkmaier is a technology consultant at Pcube Labs, and he hosts and moderates the OpenDTV forum.

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Web links

“Free no more?” by Craig Birkmaier;

“Digital content protection: How anti-piracy technologies are transforming digital media” by Don Labriola;,3973,13923,00.asp

The Electronic Frontier Foundation;

“Free Culture: How big media uses technology and the law to lock down culture and control creativity” by Lawrence Lessig;

United States Court of Appeals decision on the broadcast flag;

Supreme commandment: Thou shalt not induce to steal

On June 27, the U.S. Supreme Court issued a variety of decisions related to the Ten Commandments, Internet file sharing and the access of competitors to the facilities operated by cable companies.

The court called upon the 10th Commandment — thou shalt not steal — to underscore its finding that the sharing of copyrighted materials via peer-to-peer (P2P) networks is an illegal activity comparable to common theft. But it stopped short of a ruling that would shut down P2P networks, keeping in place the basic tenants of its 1984 Sony Betamax decision.

In 1984, the Court ruled that just because a product or technology can be used to infringe on copyrights, if there are substantial non-infringing uses, the inventor could not be held liable for the infringing uses. Because most consumer copying is for personal use, permitted under the Fair Use provision of U.S. copyright law, the Betamax decision protects manufacturers of copying and distribution products despite the fact their products can be used to make and distribute illegal copies.

The Supreme Court's ruling in the current case brought by Metro-Goldwyn-Mayer Studios et al. vs. Grokster et al. creates a new conduct-based test called inducement. In its decision, the Supreme Court stated: “For the same reasons that Sony took the staple-article doctrine of patent law as a model for its copyright safe-harbor rule, the inducement rule, too, is a sensible one for copyright. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” Upholding the Betamax decision, the Supreme Court rejected any specific numerical tests, such as a certain percentage of a product's use, for infringing purposes. The full decision can be downloaded at: