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' 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'' 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.
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Originally published as 'A Behind-The-Scenes Look At How DRM Becomes Law,' InformationWeek, July 11, 2007
Pirates
Lawrence Lessig
If “piracy” means using the creative property of others without their permission — if “if value, then right” is true — then the history of the content industry is a history of piracy. Every important sector of “big media” today — film, records, radio, and cable TV — was born of a kind of piracy so defined. The consistent story is how last generation’s pirates join this generation’s country club — until now.
The film industry of Hollywood was built by fleeing pirates.[1] Creators and directors migrated from the East Coast to California in the early twentieth century in part to escape controls that patents granted the inventor of film making, Thomas Edison. These controls were exercised through a monopoly “trust,” the Motion Pictures Patents Company, and were based on Thomas Edison’s creative property — patents. Edison formed the MPPC to exercise the rights this creative property gave him, and the MPPC was serious about the control it demanded.
As one commentator tells one part of the story,
A January 1909 deadline was set for all companies to comply with the license. By February, unlicensed outlaws, who referred to themselves as independents protested the trust and carried on business without submitting to the Edison monopoly. In the summer of 1909 the independent movement was in full-swing, with producers and theater owners using illegal equipment and imported film stock to create their own underground market.
With the country experiencing a tremendous expansion in the number of nickelodeons, the Patents Company reacted to the independent movement by forming a strong-arm subsidiary known as the General Film Company to block the entry of non-licensed independents. With coercive tactics that have become legendary, General Film confiscated unlicensed equipment, discontinued product supply to theaters which showed unlicensed films, and effectively monopolized distribution with the acquisition of all U.S. film exchanges, except for the one owned by the independent William Fox who defied the Trust even after his license was revoked. [2]
The Napsters of those days, the “independents,” were companies like Fox. And no less than today, these independents were vigorously resisted.
“Shooting was disrupted by machinery stolen, and ‘accidents’ resulting in loss of negatives, equipment, buildings and sometimes life and limb frequently occurred.”[3] That led the independents to flee the East Coast. California was remote enough from Edison’s reach that filmmakers there could pirate his inventions without fear of the law. And the leaders of Hollywood film making, Fox most prominently, did just that.
Of course, California grew quickly, and the effective enforcement of federal law eventually spread west. But because patents grant the patent holder a truly “limited” monopoly (just seventeen years at that time), by the time enough federal marshals appeared, the patents had expired. A new industry had been born, in part from the piracy of Edison’s creative property.
The record industry was born of another kind of piracy, though to see how requires a bit of detail about the way the law regulates music. At the time that Edison and Henri Fourneaux invented machines for reproducing music (Edison the phonograph, Fourneaux the player piano), the law gave composers the exclusive right to control copies of their music and the exclusive right to control public performances of their music. In other words, in 1900, if I wanted a copy of Phil Russel’s 1899 hit “Happy Mose,” the law said I would have to pay for the right to get a copy of the musical score, and I would also have to pay for the right to perform it publicly.
But what if I wanted to record “Happy Mose,” using Edison’s phonograph or Fourneaux’s player piano? Here the law stumbled. It was clear enough that I would have to buy any copy of the musical score that I performed in making this recording. And it was clear enough that I would have to pay for any public performance of the work I was recording.
But it wasn’t totally clear that I would have to pay for a “public performance” if I recorded the song in my own house (even today, you don’t owe the Beatles anything if you sing their songs in the shower), or if I recorded the song from memory (copies in your brain are not — yet — regulated by copyright law). So if I simply sang the song into a recording device in the privacy of my own home, it wasn’t clear that I owed the composer anything. And more importantly, it wasn’t clear whether I owed the composer anything if I then made copies of those recordings.
Because of this gap in the law, then, I could effectively pirate someone else’s song without paying its
