[Infowarrior] - Under the Broadcast Flag

[Richard Forno]

Under the Broadcast Flag
Intellectual Property is Intellectual Theft ... at Gun Point

By MICHAEL J. SMITH

http://www.counterpunch.org/smith06302006.html

There's nothing more wonkish than intellectual-property regulation. But
intellectual-property enforcement may well turn out to be the lever for
government intrusions into private life every bit as profound and extensive
as the better-known secret-police initiatives of the Patriot Act.

You know all those old myths and stories about dead folk who just won't stay
dead -- zombies, vampires, Richard Nixon? Well, there are ideas like that
too -- ideas that won't stop clawing their way out of the grave and back
into the light of day. One such idea is the "broadcast flag," recently
returned aboveground, for the Nth time, tucked into an enormous
telecommunications bill (S. 2686), now before the U.S. Senate.

"Broadcast flag"? Before your eyes glaze over, give me a few seconds to get
you good and scared. Because this one is a real flesh-eating zombie of an
idea, and it just won't stay dead.

"Broadcast flag" is shorthand for two different but interconnected things.
One of them is a flag or tag or attribute, or whatever you want to call it,
embedded in a digital audio or video stream, that says "don't copy me
without permission." This is the "broadcast flag" in the literal sense.

Which might seem harmless. It's like an electronic version of the copyright
notice on a book, or that goofy thing about the FBI that leads off every
video you rent. But if the government ever got serious about enforcing
it.... that's where the Inquisition would come tiptoeing into your TV room,
and maybe right onto your lap, as we will see a little later.

Well, guess what: Big Media does want the government to enforce the
broadcast flag, and the government, ever solicitous for the rights of
large-scale property, is eager to oblige.

The broadcast-flag initiative now before the Senate resuscitates an attempt
by the FCC, back in 2003, to mandate broadcast flag compliance by all
digital media devices. That regulation, known to aficionados as FCC 03-273,
was subsequently buried with a stake through its heart by a Federal court.
Now the Senate is digging it up again, with near-universal participation by
Republicans and Democrats alike. The Flag just sailed through the Senate's
commerce committee without a recorded vote, a pretty sure sign of bipartisan
ownage by the relevant lobby; the frogs and the mice will not be fighting
over this one. The only dissenter, so far, is Senator John Sununu of New
Hampshire, who seems to have some real libertarian principles, not just a
libertarian line of chat like most of his colleagues.

The 2003 FCC rule, written to order for the Motion Picture Association of
American (MPAA), Recording Industry Association of America (RIAA), the
National Football League and other copyright rentiers, is a thicket of
obscure, rebarbative language, vague definitions, cross-references, and
cabbalistic terms of art. But if you stare at it for a while, the crux
becomes pretty clear: "demodulators" must comply with the broadcast flag.
And what is a demodulator? It is any device or component that takes a
digital TV or audio signal and turns that signal into a stream of bits that
can be written to a CD, or shown on a screen, or downloaded to your iPod.

Sounds like some kind of electronic gizmo, right? A thing with transistors,
and wires, and maybe some pretty blinking lights. Indeed, a demodulator can
be just that. And maybe it doesn't seem so terribly tyrannical to mandate
certain kinds of behavior on the part of a gizmo. There are plenty of
precedents -- cars have to have seatbelts, for example.

But here's the rub: a demodulator can also be just a piece of software, or
part of a larger piece of software. Computers, including your 14-year-old's
laptop, are rapidly becoming so powerful that it's only a matter of time
before your 14-year-old can download a demodulator, or a program that
includes a demodulator, from some other 14-year-old in Finland -- or write
his own, for that matter.

Now what happens when that wicked Finn, or your wicked offspring, decides to
ignore the Broadcast Flag? Well, the FCC doesn't come right out and say.
They don't explicitly include such "software demodulators" in the scope of
their regulation, but they don't explicitly exclude them either, and the
definition of "demodulator" is certainly broad enough to cover them. And the
FCC haven't overlooked the possibility of software demodulators -- they
write:

    "... critics note that ... non-compliant hardware or software
demodulators could be produced with relative ease by individuals with some
degree of technical sophistication...."

They go on to say, ominously, I think:

    "... we seek further comment on the interplay between a flag
redistribution control system and the development of open source software
applications, including software demodulators, for digital broadcast
television."

'Interplay' is good, isn't it? Interplay nice, kids. But think for a minute
about the implications of all this. Obviously, you won't be able to buy a
digital TV, or any other digital media device, whose manufacturers haven't
certified to the Feds that it honors the Flag. Perhaps they will have to
give the Feds the schematics, or the source code for their "firmware" -- the
embedded programming that enables the device to operate. And if you want to
get around this restriction, and load software onto your laptop that ignores
the Flag, then technically, that software is probably contraband and you
will have probably committed a federal crime. But will the law be enforced
in such cases?

I think, sooner or later, it will. Not tomorrow. For tomorrow, and next
week, software demodulators will be a very geekish hobby, too small-scale to
bother the MPAA and the RIAA. But we have all seen how quickly geekish
hobbies can infect the millions. And when that happens with software
demodulators, there'll be a crime wave, and the MPAA and RIAA will sit up
and take notice.

They'll want to find all these bad actors who have loaded non-compliant
software onto their laptops. But that's not so easy. There's no way a
"content provider" can tell, from his end of the wire, what software the
recipient of his digital media stream is running.

Ultimately, warrants will have to be issued. Fibbies in flak jackets will
charge into your house and confiscate your 14-year-old's computer. Aha! He's
running Linux! And he's been visiting Web sites in Finland! Twenty years for
the little Commie song pirate!

Does this sound unlikely? It shouldn't -- we've already seen it before, with
the FBI breaking into houses and the RIAA filing thousands of lawsuits
against people accused of "file sharing."

Intellectual property enforcement, in other words, will lead to a kind of de
facto government software regulation. The software police won't entirely
succeed in suppressing contraband software -- we'll have an eternal war, a
little like the Drug War, which suits the police just fine, of course. But
certainly they will succeed to some extent; the prospect of a midnight raid
will keep all but the bold and heedless safely inside the sheepfold of
approved software, produced by Microsoft or Apple or Sony or some other
large corporation.

You know what the next step will be. The approved software manufacturers
will be approached, just the way the NSA recently approached the telephone
companies. Kiddie porn -- terrorism -- video piracy -- bad things, right?
Surely you'll help us defeat terrorism and put child molesters behind bars?
Your techies have probably left some back doors into that movie software,
right? Tell us more. What's that? You're hesitating? You're not a, uh, child
molester yourself -- are you? Y'know, your ex-wife tells some strange
stories....

Paranoid, you say? Well, a few years ago it would been paranoid to predict
that cops would be searching people's knapsacks in the New York subways, or
that the NSA would be monitoring your grandmother's phone calls.

There's been a vast expansion, in recent years, of the idea of "intellectual
property." You can patent most anything -- Microsoft, I hear, owns all the
transcendental numbers except pi, and they're suing Euclid's estate over
that. (Just kidding. Sort of.) Copyright is forever, or as near as dammit.
Fair use is narrower and narrower, and there are even public parks where
it's a copyright violation to take pictures.

And this is taking place at the same time that technology is making
intellectual property a laughably obsolete idea. Once you've got a stream of
bits on your hard drive, there is no power on earth that can stop you from
copying it -- except the oldest power, the power of armed men to break your
door down and take you away.

Michael J. Smith is a computer programmer by day. By night, he conspires to
destroy the Democratic Party on his blog, stopmebeforeivoteagain.org.