Will Hollywood's concerns about digital TV lead to a "voluntary consensus"—or legislation—to restrict home taping of free over-the-air TV broadcasts? Since digital TV is slated to obsolete analog TV broadcasts, this question could be very significant indeed. A recent organized effort to take control of home taping technology is bad for consumers; its proponents hope consumers won't notice. But its effects could be felt beyond hope taping, limiting innovation in new high-end digital video technology, wireless home networks, digital displays, and more. This project is the latest piece of a broad effort by copyright holders to attain perfect control over every use of a copyrighted work, even within a private home.
New high-definition digital TVs have been inching their way into U.S. markets. But in the name of speeding up their deployment, a group of entertainment and electronics companies are pushing a scheme to severely curtail home recording of free over-the-air broadcasts in this format. To work, it will have to be backed up by the government—with a ban or regulations on "non-compliant" digital devices.
The companies, led by the major motion picture studios and electronics manufacturers Intel, Hitachi, Matsushita, Sony, and Toshiba, have been in negotiations since November. They've formed a consortium known as the Broadcast Protection Discussion Group (BPDG), which operates within a larger structure called the Copy Protection Technical Working Group (CPTWG). CPTWG has been meeting for several years, and discusses a wide variety of technologies which attempt to control copying and playback of digital media. BPDG was formed in November and chartered just this week as a sub-group within CPTWG.
Digital HDTV television content, which can provide much sharper pictures and higher quality than older analog TV systems, can be delivered in many ways—on media like DVDs, via satellite dish, through a digital cable system, over the Internet, or in an over-the-air broadcast. (BPDG is chartered to work on only the last method.) A standard called ATSC replaces the older NTSC video standards; the FCC has already begun allocating frequencies from the broadcast spectrum to digital stations, digital ATSC broadcasts are underway, and ultimately (according to plan) analog TV will become a thing of the past. All over-the-air broadcasts are expected to go digital over the next few years (though lingering doubts about the timetable persist).
One might imagine that hardware like the VCR would be updated to work seamlessly with the new digital standards. One might also expect that new technologies, like home wireless networks, might build on the capabilities of the VCR. But Hollywood isn't so sure it likes these prospects.
Proponents of BPDG's approach point out that there are no digital VCRs in the consumer market today—so, allegedly, consumers won't miss what they've never had. If new digital VCRs (which could record onto magnetic tapes, or perhaps onto optical media such as writable DVD discs), never became available, some entertainment industry lawyers would lose little sleep. After all, they fought the introduction of the original analog VCR when it was first introduced; Motion Picture Association of America president Jack Valenti insisted the technology would be the death of the movie industry. In a protracted court battle called Universal v. Sony, the industry tried to keep home recorders off the market; in 1984, the Supreme Court decided consumers would have the right to buy Betamax units.
Although there are no DTV VCRs on the consumer market today, there are a small number of DTV personal video recorders (PVRs), the latest entries in a product category pioneered by TiVo. But, in general, PVRs don't allow recording onto removable media, as a VCR does; this means that you can't take your recorded programs to a friend's house, or make a copy for your kids. Nor do PVRs usually allow excerpting—and they usally have a fixed storage capacity. Therefore, while they are an innovative product category, they have not yet delivered to consumers the full promise of digital video.
Smaller video equipment companies are split in their reactions to entertainment industry demands. Some makers of PVRs, as well as some manufacturers of TV tuner cards for personal computers (which can allow PCs to receive DTV directly), living in fear of litigation from Hollywood, are intentionally limiting the capabilities of these products by incorporating "rights management" restrictions. Only a few hardy manufacturers have continued to sell ordinary full-featured tuner cards, which can turn a computer into a digital television, PVR, and VCR in one.
BPDG participants assume this latter category of products must be driven from the market and replaced with "protected" versions with limited ability to record shows transmitted over the air in DTV format. How can this be accomplished, if consumers prefer the unrestricted versions? (No law currently prohibits manufacturers from producing VCRs and PVRs which can handle DTV. From one perspective, restrictions in this area would only hurt the already-slow deployment of the new format. Movie studios, by contrast, maintain that they will withhold popular movies from HDTV formats until their demands are met.) Currently, BPDG is looking for a consensus among "affected industries"—movie studios, consumer electronics vendors, and computer companies. Of course, two "affected parties" have been left out of this consensus: consumers and smaller innovative electronics companies.
BPDG is postponing all discussion of "enforcement issues" and concentrating on technical standards, for the moment. But these issues will have to be dealt with eventually, particularly if manufacturers left out of the process choose not to sign on. Ultimately, according to proponent Andy Setos of Fox, it will be necessary to seek legislation or regulations mandating compliance with BPDG's specifications—and banning the sale of new devices which, like most of today's DTV hardware, do not limit recording of broadcasts.
Currently, the group is contemplating a proposal devised by Fox [PDF 247k], in which a broadcaster can insert a flag into a particular program to indicate that it must not be "retransmitted" (including recording onto removable media). The group's charter calls for development of an elaborate specification to ensure that "compliant" products won't make VCR-like recordings of such content, nor permit it to be shared with "noncompliant" devices.
The movie studios argue that these restrictions are necessary because digital television prevents an unprecedented threat of unauthorized copying—first, because it is of exceptionally high quality, and second, because it's much easier to make copies of digital media (like CDs) than of analog media (like VHS tapes).
But we've heard this sort of reasoning from the entertainment industry before—notably during the Universal v. Sony litigation over the original analog VCR. In that lawsuit, movie studios insisted that the VCR would devastate their industry, by enabling unbridled illegal copying. On the strength of these concerns, they called for a right to limit the abilities of VCRs to make copies; that effort was rejected by the Supreme Court, which noted the public's interest in making copies at home, even without the approval of the studios. Copyright law, according to the U.S. Constitution, is meant as a careful balance "to promote the Progress of Science and the useful Arts"; therefore, we should be careful not to sacrifice consumers' interests and innovation.
Some of the rights management technologies presented at CPTWG contemplate a world where copyright means "perfect control", not only over whether works are copied, but even over when, where, and how they are used. In that world, technology will guarantee that a copyright holder's wishes are law. The BPDG's proposals regarding HDTV are a first step on that path. Though narrower, they still imply substantial limitations on consumer technology to accomodate movie-makers' unsubstantiated fears.
Had Congress and the courts capitulated to similar copyright-holder demands in the past, music publishers would have kept MP3 players off the market, broadcasters would have blocked the VCR and the TiVo, and book publishers would have suppressed the photocopier. Certainly, we might have seen some version of each of these technologies—but only subject to "compliance and robustness rules" that impaired competition and restricted legitimate consumer activities. This latest version of piracy anxiety should not be permitted to block technological innovation and features that consumers want, nor to leave existing technologies like the VCR behind as media formats evolve.