EFF: RI/MPAA replacing Fair Use with "customary historic use"

(I have lots on my plate right now, so haven't been transmitting
like usual, but this is important.  -- Seth)

-------- Original Message --------
Subject: pho: EFF: RI/MPAA replacing Fair Use with "customary
historic use"
Date: Sun, 22 Jan 2006 11:17:09 -0500
From: Campbell Vertesi <[email protected]>
Reply-To: [email protected]
To: Pho <[email protected]>

http://arstechnica.com/news.ars/post/20060121-6025.html

Big Content would like to outlaw things no one has even thought
of yet

1/21/2006 1:06:35 AM, by Hannibal

The EFF's Deeplinks section has a pretty alarming post about the
RIAAand MPAA's attempts to freeze the progress of consumer
electronicstechnology and then start turning back the clock on
all of us. Fairuse, meet your successor: "customary historic
use."

The post points to broadcast flag draft legislation sponsored
bySenator Gordon Smith (R-Ore.) that contains provisions which
appear tolimit digital broadcast media reception devices to
"customary historicuse of broadcast content by consumers to the
extent such use isconsistent with applicable law and that
prevents redistribution ofcopyrighted content over digital
networks." In other words, if it doesanything heretofore unheard
of with the digital content that itreceives, then it's illegal.
And if it does anything "customary" thatcould also possibly lead
to unauthorized redistribution, then it'salso illegal. So all the
bases are covered!

Can it really be that bad? We already knew that the proposed HD
radioprovisions are just awful and absurdly draconian, but can
Big Contentreally be trying to put a blanket freeze on innovation
and outlaw anypossible novel use at all of copyrighted digital
broadcast content? Idownloaded the PDF and read through it, and
it does indeed look thatway. There are a few relevant sections,
so let's take a look at them.

Here's the first major section in which the phrase "customary
historicuse" is used:

(2) CRITERIA FOR CONTENT OF REGULATIONS – In achieving the goal
ofpreventing the indiscriminate unauthorized copying and
redistributionof certain digital audio content over digital
networks, any proposedregulations to govern digital audio
broadcast transmissions anddigital audio receiving devices shall
–

   (a) require Commission licensees that transmit digital
audiobroadcast signals or that manufacture digital audio
receiving devicesto implement a Broadcast Flag technology to
protect digital audiocontent;

   (b) permit customary historic use of broadcast content by
consumersto the extent such use is consistent with applicable
law;

   (c) not interfere with the deployment and spread of digital
audiobroadcasting to the maximum extent possible; and,

   (d) to the extent that such regulations cover devices, cover
onlydevices that are capable, without any hardware alterations
oradditions, of receiving digital audio signals when such devices
aresold by a manufacturer.

   (e) not interfere with the monitoring of or gaining access
tomusical works contained in broadcasts by performing
rightsorganizations for the purpose of collecting or distributing
royalties.

This sounds vaguely ominous, but not truly earth-shattering,
mostlybecause it's phrased positively. Unfortunately, by the time
you'redone with the document you understand that it's worse than
it looks atfirst.

At issue in the legislation are two types of
implementation-agnostic"technologies": 1) a "broadcast flag"
technology that's embedded inthe digital signal by the sender and
that tells the receiver what itcan and cannot do with the digital
content; and 2) a "secure movingtechnology" that the draft
legislation defines as follows:

(b) "Secure Moving Technology" is a technology that permits
contentcovered by the Broadcast Flag to be transferred from a
broadcastreceiver to another device for rendering in accordance
with customaryhistoric use of broadcast content by consumers to
the extent such useis consistent with applicable law and that
prevents redistribution ofcopyrighted content over digital
networks."

There's the nub of it. The broadcast flag alone isn't enough,
becausewhat happens when you want to actually listen to the audio
that thedevice has received? Unless you've got headphones
attached directly toyour digital radio, you're going to want to
move the signal from thedigital radio to a stereo receiver (for
"rendering" as the draft putsit), even if you're not necessarily
planning on ripping the music anduploading it to eDonkey. 
This where the "secure moving technology"kicks in.

The "secure moving technology" ensures that whatever you do with
thesignal that leaves the digital broadcast receiver, it
definitely won'tbe anything you can't already do right now.
Furthermore, even somethings that you can currently do will be
outlawed if those thingscould facilitate piracy. This probably
means that such devices won'thave much in the way of hi-fi analog
outs.

After you read the above definition of "secure moving technology"
andthen go further back and look at the first section that I
quotedabove, that first "customary historic use" passage starts
to make moresense and to look more insidious. From reading the
whole draft, itappears that the "customary historic use"
stipulation governs playbackon any device, whether it's an
attached device or the receiver itself.The broadcast flag is
embedded in the signal like a special tag thatdefines the
content's terms of use, while the secure moving technologyacts as
a sort of DRM wrapper/sandbox for the content that ensuresthat
any (compliant) playback device not only respects therestrictions
dictated by the broadcast flag but also does absolutelynothing
novel or unexpected with the content that the broadcast
flag'sterms did not or could not anticipate.

So, if you were planning to launch a startup and make millions
off thecoming digital broadcast media revolution by inventing the
next iPodor by combining digital radio with Web 2.0 and VoIP and
Skype and RSSand WiFi mesh networks, then forget about it. When
digital broadcastnirvana finally arrives, the only people who'll
be legally authorizedto make money off of music and movies are
the middlemen at the RIAAand the MPAA.

But I hate to end a post on a sour note, so here's a thought to
cheeryou up. This "customary historic use" thing reminds me of
something Ionce read in a history of Japan that I picked up on
sale at Borders.(I'd give the title, but I'm not at home so I
don't have the bookhandy. It wasn't very good anyway.) At the
height of their culturalpower, the samurai were authorized to
kill peasants for an insanenumber of reasons, including "acting
in an other than expectedmanner." So look on the bright side: at
least we don't live in feudalJapan... yet.

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