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The outer limits of fair use

Sep 1, 2005 12:00 PM, By Craig Birkmaier

The '60s. What a time to be growing up in America! It was the golden age of TV, when families gathered around the electronic hearth and a new medium took control of our lives. They controlled the horizontal and the vertical. They could change the focus to a soft blur or sharpen it to crystal clarity. They decided what we could see in the not-so-vast wasteland of a three-commercial-network universe.

We listened to music on AM radio and scratchy vinyl discs. We watched movies in theaters. There was no need to manage how we consumed entertainment media. There were no VCRs, CDs, DVDs, video games, car theater systems, PCs, Tivos or iPods.

Rights? You don't need no stinkin' rights. They are in control.

It's like dejá vu

Four decades later, the issue of control has come back to haunt us. During those decades, we have seen our entertainment choices proliferate. Families rarely gather around the TV set in the living room anymore. The TVs have multiplied in our homes like rabbits, as have the devices and services that can be used to feed them. The TV audience has fragmented like an imploding CRT.

Along the way we acquired something called fair use rights, granting us the rights to control when we want to watch a TV program by recording it for time-shifted viewing, to make copies of entertainment media for our personal use, and to move this content from one device to another so that it can be enjoyed anywhere, anytime.

We have seen the entertainment industry expand and then consolidate, creating conglomerates with awesome power to influence the flow of entertainment and information. We have seen the influence on our culture and our political institutions. We have watched as politicians have used the media to consolidate their power.

Now we, their customers and constituents, have become a threat — a rowdy band of pirates — using emerging technologies to control the ways in which we choose to be entertained and informed.

The insecurity complex

This revolution has many fronts, many incestuous relationships. The symbiotic relationship between the media and consumer electronics conglomerates erupts into open warfare each time a new technology threatens to give consumers more control over the way they consume entertainment and information.

Both view the computer industry as a threat, as PCs and laptops are transformed into media centers and portable media players. And cross ownership between industries makes it nearly impossible to determine what the real agendas are.

Rights management is now a major concern for every company and product that touches any form of digital media content. The rapidly growing world of rights management extends well beyond the world of entertainment. Determining who can access any digital file on any network is a rights management issue that touches everyone. Recent revelations of computer system breaches, compromising the financial records of millions of consumers, underscore the importance of rights management.

The asset management systems used at every level of the entertainment industry must deal with rights management at multiple levels. Within organizations, the issue of who can view media files and who can modify them is a rights management issue. For a major cable or TV network, even a local TV station, the need to track the rights to broadcast a program is critical.

In the narrow context of this column, however, the focus is on the consumer and what must be done to prevent the abuse of whatever fair use rights a content owner may choose to allow. In July, I used this column to examine an aspect for this subject: the broadcast flag, which is intended to prevent the copying and redistribution of DTV broadcasts. The FCC issued an order for all downstream devices to honor the flag; however, a federal appeals court ruled that the FCC had overstepped its authority, having no jurisdiction over downstream devices.

Congress could pass legislation authorizing the FCC to regulate these downstream devices. At this time, there is no draft legislation to authorize the flag. However, at least one attempt to attach the rule to a budget bill has been derailed. It now appears likely that, perhaps before the end of the year, Congress will pass a bill setting a date certain for the end of the DTV transition on Jan. 1, 2009. The major issue yet to be resolved involves the possibility of government subsidies for set-top boxes. (For more information, see “The broadcast protection racket” in “Web links.”)

It is not likely that Hollywood will give up in its campaign to limit consumer fair use rights for their best content — especially anything at HDTV resolution. The industry is trying to make certain that the new HD DVD formats are well-protected. HD DVDs will be protected by a renewable security system called the advanced access content system (AACS). AACS employs encryption keys in both the player and on replicated discs. If a key is compromised, access can be revoked. (For more information, see “Web links.”)

Hollywood would like for all new players to have some form of back channel connections that would allow them to revoke keys after they have been compromised. This raises the real possibility that a legally purchased disc could stop working if it was compromised or that a hacker could compromise the security system and shut down large numbers of players in a manner similar to the way that viruses now take out PCs.

Given the potential for yet another consumer format war, and the industry's desire to limit the fair use rights for this content, it is relatively easy to predict consumer response to HD DVDs. When the media conglomerates push the outer limits to control consumer behavior, consumers can just say no!

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

Send questions and comments to: craig_birkmaier@primediabusiness.com