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Coming Soon: Hollywood Versus the Internet

------- Forwarded message follows ------- Date sent: Tue, 18 Dec 2001 17:50:33 -0500 Send reply to: Law & Policy of Computer Communications <CYBERIA-L@LISTSERV.AOL.COM> From: Mike Godwin <mnemonic@WELL.COM> Subject: Coming Soon: Hollywood Versus the Internet To: CYBERIA-L@LISTSERV.AOL.COM

An article I've been working on, for your comments.

--Mike

If you have a fast computer and a fast connection to the Internet, you make Hollywood nervous. And Tinseltown is nervous not because of what you're doing now, but because of what you *might* do -- grab digital Hollywood content with your computer and broadcast it over the Internet.

Which is why Hollywood, along with other content companies, from book publishers to the music industry, has begun a campaign to stop you from ever being able to do such a thing -- even though you may have no intention of becoming a copyright "pirate." That campaign has pitted corporate giants like Disney and Fox against corporate giants like Microsoft and IBM, but the resulting war over the shape of future digital technology may end up with us computer users suffering the "collateral damage."

As music-software designer and entrepreneur Selene Makarios puts it, this campaign represents "little less than an attempt to outlaw general-purpose computers."

Let's get one thing straight -- when I say there's war looming in cyberspace over copyright, I'm not talking about the struggle between copyright holders and copyright "pirates" who distribute unlicensed copies of creative works for free over the Internet. Maybe you loved Napster or maybe you hated it, but the right to start a Napster, or to infringe copyright and get away with it, is not what's at issue here. And in a sense it's a distraction from what the real war is.

What I'm talking about instead is the war between the content industries (call them "the Content Faction") and the information-technology industries -- call the latter "the Tech Faction." That faction includes not only computer makers, software makers, and related digital-device manufacturers (think CD burners and MP3 players and Cisco routers). Allied with the Content Faction are the consumer-electronics makers -- the folks who build your VCRs and DVD players and boomboxes. The Tech Faction, which makes smarter, more programmabale devices and technologies than the consumer-electronics guys do, may count among their allies many cable companies and even telephone companies.

But what's the "collateral damage," exactly? Perhaps the most likely scenario is this: at some near-future date - perhaps as early as 2010 - individuals may no longer be able to do the kinds of things they routinely do with their digital tools in 2001. They may no longer be able, for example, to move music or video files around easily from one of their computers to another (even if the other is just a few feet away in the same house), or to personal digital assistants. Their music collections, reduced to MP3s, may be moveable to a limited extent unless their digital hardware doesn't allow it. The digital videos they shot in 1999 may be unplayable on their desktop and laptop computers -- or even on other devices -- in 2009.

And if they're programmers, trying to come up with the next great version of the Linux operating system, for example, they may find their development efforts put them at risk of criminal and civil penalties if the tools they develop are inadequately protective of copyright interests. Indeed, their sons and daughters in grade-school computer classes may face similar risks, if the broadest of the changes now being proposed becomes law.

Digital television is the thin entering wedge for the Content Faction's agenda. Here's why: unlike DVD movies, which are encrypted on the disc and decrypted every time they're played, digital broadcast television needs to be unencrypted, for a couple of reasons. First, the Federal Communications Commission requires that broadcast television be sent "in the clear" -- in unencrypted form -- as a matter of public policy. The argument here is that broadcasters are custodians of a public resource -- the part of the broadcasting spectrum used for television, and need to make whatever they pump into that spectrum available to everyone. Second, digital broadcast TV has to reach the existing (albeit relatively small) installed base of digital television sets, which wouldn't be able to decode encrypted broadcasts.

But digital broadcast television also poses a special problem -- it's just too darned high-quality. And if a home viewer can find a way to copy the content of a digital broadcast, he or she can reproduce it digitally over the Internet (or elsewhere), and everybody can get that high-quality digital content for free. This would have a particularly harsh effect on the movie and TV studios, which currently repackage old television shows for resale to individuals as DVDs or videotapes, and which also syndicate the rights (resell broadcast rights) to cable networks and to individual broadcasting stations. If everybody's trading high-quality digital copies of "Buffy the Vampire Slayer" or "Law & Order" over the Internet, who's going to view the reruns on, respectively, Fox's FX network or the Arts & Entertainment channel? What advertisers are going to pay to air those shows when their complete runs are available online to viewers, commercial-free, through some successor to Napster or Gnutella peer-to-peer file-sharing?

The Content Faction has a plan to prevent that world from coming about -- a plan they hope will work for music and every other kind of content. One guide to a different future is the "watermarking" solution proposed for digital broadast television.

Essentially, there are two parts to the scheme. The first part is this: the digital broadcast TV signal will include a digital "watermark" containing information that tells a TV watcher's home-entertainment system whether to allow copying at all, or to allow limited copying, or to allow unlimited copying. The so-called digital watermark is not like a normal watermark in stationery -- instead, it's "steganographic." That is, it's contained in the content itself but the normal viewer isn't be able to see it without special tools. Not all of the bits in a digital bitstream have to be used to communicate images or sound -- the remaining bits can be structured in a way that adds up to a "watermark."

But the first part of the fix -- adding a watermark -- doesn't work without the second part, which is that the components of the home entertainment system have to be designed to receive those watermarks and flags and limit copying accordingly.

If the digital TV guys put together a working watermarking scheme for television, then at least in theory they've come up with a solution that will apply to all other digital media. After all, bits is bits.

There are some problems with this scheme -- perhaps intractable ones. If Princeton computer scientist Edward Felten is right, when you design your watermarking system so that it is invisible to normal viewers or listeners yet easily detectable by machines, it's probably going to be relatively easy to strip it out. To put it simply, if you can't see it, you won't miss it when it's gone.

Which is why, when you think through how the watermarking system will work, you realize the components of new home entertainment systems will also likely have to be designed not to play unwatermarked content - otherwise, all you've done is develop an incentive for both inquisitive hackers and copyright "pirates" to learn how to strip out the watermarks. So much for your legacy digital videos. So much for your MP3 collection.

What will the components of a new home-entertainment system be, exactly? Mostly standard consumer electronics: a VCR, a DVD player, maybe, a CD player, speakers, a TV receiver. Yet what tech-industry pundits call "convergence" means that one other component is increasingly likely to be part of home-entertainment setups -- the personal computer. Says Business Software Alliance special counsel Emery Simon: "That's the multipurpose device that has them terrified, that will result in leaking [copyrighted content] all over the world."

This is precisely what Disney CEO Michael Eisner, in a speech to Congress in summer of 2000, was referring to when he warned of "the perilous irony of the digital age." Eisner's statement of the problem is shared by virtually everybody in the movie industry: "Just as computers make it possible to create remarkably pristine images, they also make it possible to make remarkably pristine copies."

Because computers are potentially very efficient and capable copying machines, and because the Internet is potentially a very efficient and capable distribution mechanism, even in the hands of ordinary individuals, the Content Faction has set out to restructure the entire digital world we have today. They want to rearchitect not just the Internet, but every computer and digital tool on or off the Net that might be used to make unauthorized copies.

Ask them about their goals, though, and they'll tell you they don't quite want to turn back the clock. If you use your VCR to record a favorite program so you can watch it later, why, then, the Content Faction says, we'll let you do something similar in the future -- but we're also going to make sure, with our watermarking scheme or something similar, that it won't be possible to do more than that.

The Content Faction is proceeding on many fronts: legislative, of course, but also in standards groups, in industrial consortia, and in global business policy forums. A recent legislative proposal floated (but not formally introduced) by Sen. Fritz Hollings, D-SC, which would require that all new digital-transmission technologies have built-in copyright protection -- built-in watermark-scheme compliance, in other words -- generated a significant public backlash after being leaked to the press. But that proposal caused a backlash because it was itself public -- in reality, it's only one small part of a mostly unpublicized global effort to include digital-rights-management in every digital technology. "Digital rights management," also known to both factions as "DRM," is the generic term used to characterize any technology -- software, hardware, or both -- that prevents unauthorized copying of, or that controls access to, copyrighted materials.

At stake in this war, says Eisner, who's the acknowledged leader of the Content Faction, is "the future of the American entertainment industry, the future of American consumers, the future of America's balance of international trade." The lobbyists at News Corporation and Vivendi Universal S.A. -- and pretty much any other company whose chief product is content -- agree with Disney's Eisner about the magnitude of the issue (although the foreign-based ones, like Bertelsmann AG, are understandably less concerned about the U.S. balance of trade). All of them tend to talk about the problems posed by computers, digital technology, and the Internet, in apocalyptic terms.

The companies whose bailiwick *just is* computers, digital technology, and the Internet -- whose focus is more technology than content -- take a different view. These members of the Tech Faction, which include Microsoft, IBM, Hewlett-Packard, Cisco Systems, and Adobe, also value copyright. (Adobe, for example, just this year instigated the prosecution of a Russian computer programmer who cracked the company's encryption-based e-book security scheme.) And many of them -- particularly those who have been developing their own digital-rights-management technologies -- want to see a world in which copyrighted works are reasonably well-protected. Yet if you ask an Tech Faction member what it thinks of the Content Faction's agenda for the digital world, you invariably get something similar to the Emery Simon's judgment of the scheme: "We are strongly antipiracy, but we think mandating these protections is an abysmally stupid idea." (BSA is an anti-piracy trade group whose members include the major players of the Tech Faction, from Adobe to Microsoft to Intel to IBM.)

You can't overestimate the extent to which the two factions are both pro-copyright -- their shared view of the importance of protecting copyrighted works online makes them awfully uncomfortable to be on opposite sides now. One thing the Tech Faction and the Content Faction have in common is that they both supported the passage of the Digital Millennium Copyright Act in 1998 -- both sides like the DMCA pretty much as it is. That act, which was framed as the implementation legislation for the World Intellectual Property Organization's Internet treaties, prohibited the creation, dissemination, and use of tools that circumvent digital-rights-management technologies.

Where the two sides differ is on the issue of whether the DMCA is enough. BSA's Simon views the DMCA as a well-crafted piece of legislation, but thinks that efforts that would build DRM into every digital device are overreaching, at best. And in taped remarks presented at a Dec. 4 business-technology conference in Washington, DC, Intel CEO Craig Barrett spoke out against legislation like the Hollings bill, which would have the government mandating a copyright-protection standard to adopted by the entire IT industry. Yet the Content Faction, as represented by their lawyers and lobbyists in Washington, as well as by their West Coast technologists, say that failure to standardize on a universally built-in digital-rights-management technology will, in effect, lead to the destruction of the digital-content industries.

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