Another nail in the coffin of Fair Use

by Matthew M. Lug - Tech News Reporter

Last week, I ended my DeCSS article with the following:

"You already can't legally make a backup of a DVD movie you legally purchased. What additional restrictions will the future bring?"

Well, it didn't take long to get an answer to that question. The FCC has just decided to require that consumer electronics manufacturers include copy protection capabilities in equipment used to receive digital television content. Consumer electronics manufacturers probably aren't thrilled at the prospect of having to redesign their digital equipment and spend the time and money that such a redesign would cost. People like me probably aren't thrilled with the idea that the restrictions associated with DVDs could soon be expanded to all digital video content and hardware.

What does this mean to the average consumer? It means that existing digital television equipment could be incompatible with digital television content in the near future. It also could cause an increase in the price of digital television equipment (at least in the short term) once (if) this copy protection is built in. Most average consumers probably don't care about either of these problems, since most average consumers don't particularly care about digital television. However, they had better start caring, since all cable television content is likely to go digital within a few years.

More important than the impact on digital hardware is the impact on the soon-to-be old-fashioned analog television hardware. If this copy protection scheme is implemented, cable television subscribers could find themselves being forced to buy new television sets and VCRs. When faced with the inevitability of an all-digital television system, I had assumed that consumer electronics manufacturers would produce set-top boxes that would convert the digital content to analog content, removing the need for everyone to buy new hardware when analog television signals become extinct. Copy protection completely changes this - it is unlikely that a loophole of allowing copy protected digital signals to be converted to unprotected analog signals would be created. This means that no analog equipment would be able to view any copy protected digital content.

Why do we even need this copy protection? When Sony first produced its Betamax VCRs, the courts eventually decided that there was nothing illegal with allowing people to record television signals for their own use. Now that it is possible to kill VCRs without going through the courts, it has somehow become wrong to copy anything that the content provider doesn't want you to copy. With DVDs, you still have the option of using a VHS version to make copies (although that is an added cost that shouldn't be required just to do what is allowed under fair use). Will analog and digital cable signals coexist on the same system? This would make absolutely no sense (just think of all the hardware involved, add in incompatibilities, and sprinkle liberally with tech support calls from confused cable subscribers), so I don't see why anyone would try to do this for any extended period of time - cable will be all digital, eventually. This would mean that if HBO doesn't want you recording a movie at 2AM and watching it when you are awake, you couldn't do it. Can't sit through all 6 hours of the Academy Awards? You'd better hope they let you tape it.

The possible abuses of this kind of system from the content provider far outweigh any possible abuses by the user. Maybe I'm just out of touch with society, but how many people distribute cassette tapes or digital copies of movies from HBO or Pay-Per-View? How many people on the receiving end of this distribution would have spent money on these movies if that were the only option? My guess would be that this would be a very small number of people, but I could be wrong. On the other end though, the implementation of this copy protection system could be misused to give networks complete control over information they broadcast. Fast-forwarding through commercials - or removing them entirely - could be gone forever. This is already an annoyance with DVD rentals. Widespread copy protection could be used to generate sales of DVD versions of your favorite television shows. If you can't record it yourself, your only option is to buy a copy that the network has recorded for you - in a format that you also can't legally duplicate. Forget about fair use, copy protection means profits for content providers.

Of course, copy protection might not be abused too severely - some networks may even choose to allow copying of everything they broadcast. It may be decided that copy protection of this type is a bad idea, and it may end up not being used. By the same reasoning, consumers also may not abuse their right to copy broadcasted content for their own use. What do you do when all of this is uncertain? Do you err on the side of the consumer, against restrictions (some would say for freedom), or do you err on the side of broadcasters, for the "protection" of information (at the expense of fair use)? I think it is obvious which side I favor, but then again I don't think people should be punished without committing a crime. People who want to distribute television content in violation of the law will still find a way. The rest of us will be stuck with less freedom, waiting to be relieved of even more if someone can profit in the process.

Back to Stuff I've Written
Created and maintained by Matthew M. Lug (Contact Matthew M. Lug)