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Earlier this week, I wrote about my belief that the FCC's true reasons for supporting the broadcast flag are not the purported reasons used to justify that support (The Broadcast Flag is Well-Designed Regulation). As Donna notes below (Plus Dessert), there have been two good follow-ups to my original post. First, on Freedom to Tinker (Dare To Be Naive) and, later, on Furdlog (Cynical or NaÔve?). Read on for my responses ...
Ed Felten makes a point I completely agree with. When making policy arguments, one should challenge opposing arguments head on and explain why they're flawed. One should "pretend that the other side actually believes what they say they believe" and challenge their arguments on that basis. Absolutely. If you can't beat the arguments head on you're probably battling a lost cause or you're simply wrong. However, I do think that when the other side's supposed ends are incongruous with the means and the means are consistent with another end, it can be useful to point that out.
Even where means and ends are related in this way, however, it is not necessarily evidence of cynicism. It might simply be error. However, when the apparent end in also consistent with the self-interest of your opponents, then the charge of a cynicism may be raised and, indeed, should be raised as part of the policy debate. Of course it should certainly not be the sole argument.
Frank Field makes an excellent point that when an opponent's arguments seem illogical, it frequently is the result of one side or the other being blinded by ideology. Frank rightly cautions against attributing nefarious or evil motivations to those who are simply blinded by ideology: "They arenít evil or stupid; theyíre just confused and frustrated."
True. However, I must point out that my argument did not postulate that the FCC was either evil or stupid. What I said was,
I can only conclude that the FCC is acting quite cynically in support of an important constituency of theirs, the broadcasters *cough*regulatorycapture*cough*.
I was arguing that the FCC was acting either cynically or stupidly. There is a significant difference between calling someone cynical and calling them evil. Believing that someone is acting cynically is to be skeptical of their purported motives. It is believing that they are acting in self-interest rather than on principle. While we may think less of those who hide their true purposes, acting cynically is not necessarily evil or wicked.
Furthermore, we should not fear calling into question the opposition's motives where we believe the evidence warrants it. Indeed, it is the only way to have an open and honest debate if you truly believe the other side is being misleading. Of course, such charges should be well-supported and one should apply the same standards to both sides, something I try to do. For example, I have been similarly skeptical at times of EFF's arguments. See, for example, Some Questions and Concerns Regarding EFF's Filesharing Policy.
I also note that my discussion of cynicism was also in the context of "regulatory capture." What is regulatory capture? A standard definition is:
Regulatory capture: This is an economic term describing a situation where one operator (or group of operators) in the market uses its influence or resources to extract a regulatory decision, or lack of decision, for their own benefit rather than the benefit of society as a whole. It is associated with patterns of behaviour on the part of a regulatory body in one, or a combination, of the following situations:
Strangely, the FCC is frequently cited as a textbook example of regulatory capture. Now, regulatory capture and cynicism aren't identical twins, but they aren't strangers either; maybe they're more like brother and sister. I believe that the broadcast flag is a clear example of regulatory capture. Perhaps I'm wrong, but I don't recall any major supporters of the broadcast flag outside the content industries and the FCC. But what is my evidence of cynicism on the part of the FCC?
- the regulatory body is tending to further producer interests over consumer interests.
- the regulatory body has become overly protective towards the regulated entities.
- the regulatory body is tending to adopt objectives that are very close to those of the entities it is supposed to regulate.
Indecency Cynicism in the FCC
First, I must admit that my view of the cynicism level at the FCC has been colored by recent events. Those who've been reading my personal blog, The Importance Of..., know that I've been closely following the indecency mess at the FCC (though no where near as comprehensively as Jeff Jarvis).
I am afraid that it seems to me that the recent FCC crackdown on the broadcast of indecent and profane speech is highly cynical, perhaps with the exception of
decency nazgul Commissioner Michael Copps.
Item number one: Until the recent indecency brouhaha, Chairman Michael Powell used to be a strong proponent of free speech in broadcast. Read, for example (there are many more), this portion of a speech by then-Commissioner Powell in 1998:
I want to also say of the First Amendment standard that I personally believe there is only one of them. I do not believe that the growing convergence of technology will allow us to continue to maintain two First Amendment standards, one for broadcasting and one for every other communications medium. I sincerely question how long we can continue to maintain in the face of technological convergence that broadcasting is uniquely undeserving of full First Amendment protection. Technology has evaporated any meaningful distinctions among distribution medium, making it unsustainable for the courts to segregate broadcasting from other medium for First Amendment purposes. It is just fantastic to maintain that the First Amendment changes as you click through the channels on your television set.
Today, Powell is a strong proponent of indecency regulation of broadcast. Indeed, he has presided over an unprecedented expansion of the definition of what is indecent and profane. Until Powell's chairmanship, the FCC had never found a broadcast to be "profane" before. Powell praised this application of the prohibition on "profane" speech, which seems highly incongrous with regard to his previous beliefs.
Powell hasn't provided an explanation for his recent change of heart when the indecency issue came to the political front burner. Perhaps I am a poor judge of character, but it certainly seems to me that the most likely explanation is that his recent statements are politically calculated to please a particular constituency (and save his job and/or political future) at the expense of his principles. I could be wrong. Powell may very well believe that we should have multiple First Amendemnt standards, or that technology has shifted once again to create meaningful distinctions between mediums, or that he was simply mistaken in the first place. But I doubt it.
Until Powell is more forthcoming about the reasons for his politically convenient shift of viewpoint, I can only conclude that he is acting cynically with regard to indecency regulation. Heck, even many of those who support the FCC's crackdown on indecent speech believe that Powell is acting insincerely. This doesn't mean Powell is evil. After all, I postulate he is only trying to save his job. However, it does mean that he is being disingenuous.
I don't know what ideology you can call this except "cynical politics." Hey, sometimes cynical politics is the best of a bad set of choices, but let's call it what it is. I also think it shows that Frank goes too far when he declares that "it is only the true sociopath who can actively pursue destructive ends while declaring the opposite and remain functional." I don't think Powell is a sociopath, but I do think he is acting cynically. He may even have rationalizations ("by supporting this indecency crackdown I can prevent more damage to the First Amendment in the future"), but that doesn't mean he isn't primarily operating in his self-interest of not getting fired.
And, if Powell is capable of acting so clearly cynical in one area, it is more likely that he is acting cynically in others.
Of course, Powell isn't the only source of cynicism at the FCC. The organization as a whole is acting cynically with regard to its policy on regulation of profane speech. The FCC defines (Obscene, Profane & Indecent Broadcasts) "profane" as:
including language that denot[es] certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.
The FCC has provided only one example of what is profane: that the use of the word "fucking" as in "fucking brilliant" is profane.
I'm not being deliberately obtuse, but I honestly don't know what is acceptable and what is prohibited under that definition and single example. See, FCC Revives Notion of the Profane and Howard Stern Should Ask FCC: What is Profane?. The FCC's official position, however, is that its definition is clear enough for broadcasters to be able to tell what is profane and what is not profane with little difficulty.
Call me skeptical, but I just can't believe that any reasonable person actual believes that the FCC's definition of "profane" provides clear guidelines. I also doubt the FCC's motives in claiming that their definition of profane is clear enough to require no further guidance. This is just a wild-ass guess, but I think the FCC isn't providing further guidance for their definition, not because their existing definition is a paragon of clarity, but because the FCC doesn't want to make further trouble for themselves (an example of self-interest). In other words, I believe the FCC is acting cynically with regard to their definition of "profane."
So, if I've recently become more skeptical of the FCC's claimed motivations, I think I have some justification.
Misleading Rhetoric, Cynicism and the Broadcast Flag
In my original post on this topic, I (and Felten) pointed out how the means of the broadcast flag don't seem to match well with its purported purpose. As evidence of cynicism, I noted how the means seem to fit another, self-interested set of motives better. But this is not the only evidence of cynicism on the part of the FCC.
One can also look at how the FCC promotes and describes the broadcast flag. The problem is that the FCC's arguments are full of misleading rhetoric, which only increases my skepticism with regard to their motives. It seems to me that if the FCC were truly convinced of the justice of their arguments they would have little need to misrepresent their position. Either the FCC believes its arguments aren't compelling, or they don't really believe in their own arguments at all. Both positions tend to support a finding of cynicism.
Let's take a look at the FCC's broadcast flag press release: FCC Adopts Anti-Piracy Protection for Digital TV [PDF]. For one example of misleading rhetoric, let's consider the subtitle and a sentence from the document:
Broadcast Flag Prevents Mass Internet Distribution; Consumer Copying Not Affected
The FCC said that consumersí ability to make digital copies will not be affected; the broadcast flag seeks only to prevent mass distribution over the Internet.
Well, let's see, under the broadcast flag, consumers will not be able to make a copy of a broadcast and take it to their friend's house. I won't be able to record a show for my brother and then hand him the copy to use at his home. Yeah, so I can see how consumers' ability to make digital copies has not been affected. Oh, and what was that thing about consumer copying for fair use commentary, criticism and education? Apparently, that too is similarly unaffected. Or, maybe, the FCC doesn't believe that consumers engage in those forms of copying.
What if the FCC had more candidly said, "consumer copying affected to only a limited degree." Instead of claiming that consumer copying is unaffected, the FCC would make it clear that consumer copying was affected, but in their wisdom, the benefits outweigh the costs?
What about the claim that "the broadcast flag seeks only to prevent mass distribution"? Please. Why couldn't the FCC say without prevarication that "the broadcast flag seeks only to prevent distribution outside the home"?
I also find it telling that the FCC promotes the broadcast flag in order to promote consumers' interests. Normally, when the government promotes consumer interests' it does so by controlling the action of those who would harm consumers, such as unscrupulous companies. However, in this case, it is the consumers who are creating the harm. If similar logic applied to other areas of regulation, you would see headlines such as, "Auto Safety Standards Raised for the Benefit of Auto Manufacturers" and "Baby Rattle Recall Issued to Protect Toy Companies." Since, apparently, the consumers must be protected from themselves, why can't the FCC say so?
In conclusion, both Frank and Ed make great points about using the charge of cynicism in public debate. Still, I believe that the charge is justified in this case.
"Well, let's see, under the broadcast flag, consumers will not be able to make a copy of a broadcast and take it to their friend's house. I won't be able to record a show for my brother and then hand him the copy to use at his home."
This is just wrong. The regulation does not prohibit either of these things. There's no conspiracy here, just a lack of understanding about what the rules actually say.
"If similar logic applied to other areas of regulation, you would see headlines such as, 'Auto Safety Standards Raised for the Benefit of Auto Manufacturers' and 'Baby Rattle Recall Issued to Protect Toy Companies.'" How about, "Seat Belt Laws Passed to Save Auto Passengers' Lives"? Content protection benefits consumers by ensuring that high-quality content will continue to be made available via free over-the-air broadcast. It's not that difficult a concept.
Hmmm, it doesn't prevent giving a copy to a friend? Really? Well, that is very interesting. If I can give a copy to a friend, then what is going to stop me from giving a copy to a dozen of my friends ... or a hundred or a thousand? Pretty soon you are getting into unlimited redistribution.
Um, and where is it in the regulations that the broadcast flag ensures that high-quality content will continue to be made available via over-the-air broadcast? Seems to me that the FCC promises the broadcast flag in return from some vague reassurances from the broadcasters. They aren't required to do anything.Permalink to Comment
As far as redistribution, maybe they'll have something like the Apple store, where you can make only a limited number of copies.
Regarding government requiring certain content to be available, that's not necessary. Everyone benefits from high-quality content (ie. HDTV movies) being made available OTA. (Well, everyone except the 86% of Americans who get their TV via cable or satellite.) Consumers benefit because they get good-looking movies. Broadcasters benefit because they'll get more viewers. And movie companies benefit because they have a new market for their movies.Permalink to Comment
From reading the proposed standards it doesn't seem like they are contemplating anything except sharing within the home, for example, bedroom machine to living room machine. Even if they do permit limited redistribution, it almost certainly will not required. If they grant it at all, it will be due to their beneficence and can be revoked at anytime.
Everyone benefits from high-quality content being made available? That doesn't seem clear to me. I can think of many reasons to show low-def TV even when hi-def is available. For example, you can simulcast several low-def channels in the space required for one hi-def channel. Frequently, this will gain more revenue than a single hi-def broadcast. So, if you are a broadcaster, you get the broadcast flag AND you can still broadcast in low-def. Bonus.
I can also imagine even further price discrimination through time. Broadcast the lo-def version first ... get people to pay for the hi-def DVD ... then late show the hi-def version when the DVDs haven't been selling. Yeah, that is really worth having the FCC regulate technology.
In any case, if you are correct that the high-quality content benefits everyone, that really doesn't answer the question of why the broadcasters would withold it if there were no broadcast flag. Even assuming that the broadcast flag increased their revenues (something with which I disagree), why would they withhold their high-quality content if there is no broadcast flag? Everyone still benefits, the broadcasters just benefit less. In order to show a rational reason, you would have to show that all this benefit is outweighed by whatever "harm" lack of a broadcast flag creates.Permalink to Comment
If you really want to sit at your DVD recorder burning 1000 DVDs to distribute, nothing in the Flag regulation (as opposed to copyright law) prevents that. But odds are you're not going to want to do that. The physical labor and cost of media involved acts as its own speed bump. Electronic retransmission removes that speed bump. Hence, the regulation is designed to put brakes on retransmission. See 47 CFR 73.9003(b)(2) and .9004(b)(2). All that is required is that the demodulation product use an "authorized recording method." No one -- literally no one -- has proposed criteria for authorized recording methods that would prohibit recording to removable media. Ergo, the regulation will not prevent recording to removable media.
Re: my hypo on the seat belt law, your response is inapposite. Where is the requirement in the seat belt law that lives actually be saved? There isn't one -- but it's a reasonable result to expect from the law. Same with the Flag. Without it, it's reasonable to expect that unprotected content will move somewhere else.
Your logic is based on misapprehension of how DRM works. Ergo, your logic is flawed and I am correct. Let's take your DVD example. Using a standard DVD burner any files I burn will not be encrypted. Thus, if the burner records unencrypted DVDs, I can take the DVD to my brother's house. I will also be able to copy it onto the internet. So, that can't be how they do it.
Okay, okay, so we will encrypt the DVD. Fine. Just remember that you can't use CSS. One, that has already been cracked, so it is unlikely Hollywood would support use of a system already cracked (if they do, then we know that they aren't really serious about preventing retransmission, merely with inhibiting consumer control). Two, it won't happen because to be CSS compatible you need a blank DVD-R with certain sectors that can be written to that are normally pre-written on blank consumer DVDs. You can't burn an exact copy of a commercial CSS-encrypted DVD because the blank DVD-Rs they sell at the local Fry's have certain sectors pre-written where some of the CSS code goes. I don't think that Hollywood would like consumer blank DVDs floating around that could also be used to make exact copies of DVDs with CSS. So using CSS is not an option.
Okay, so we use a new system that will encrypt the data on the DVD without using those particular sectors. There are a number of problems with this. First, every authorized media recorder is going to have both the encrypting and decrypting algorithms, making it extremely easy to crack the DRM. Second, how will machine A encrypt something such that authorized machine B can read it but not authorized machine C or authorized machine D? If you don't do that, then every machine can read whatever it is that machine A encrypted. So, for example, I burn the DVD on machine A, encrypted, then upload the encrypted file to the internet. Everyone downloads the file, burns a DVD and their machine will play that encrypted DVD because there is no way for the encryption to recognize which machine it was intended to be played on.
On the other hand, it would be relatively trivial to design an encryption scheme that allowed machine A to burn DVDs that only machine A could read.
Now you could have machine A burn a DVD that only machine B could read, but that would require the ability to enter some sort of serial number into machine A when it was burning the DVD. That, of course, would make the DVD unplayable on machine A, which would be inconvenient. It also would not be very effective. What happens once the DRM is cracked is that I burn a DVD on machine A using a known serial number and upload that encrypted file to the internet. The owner of machine B downloads the file, if she knows the serial number the file was encrypted with, machine B's serial number, and has the DRM algorithm, it would be trivial to download the file un-encode it using machine A's known serial number, re-encode it using machine B's serial number, burn it to DVD and then play it. It sounds complicated, but the cracking/burning program would do this transparently once the user has entered their own serial number, once.
So, perhaps this is what the DRM makers will do. Seems like an awful lot of effort for something that won't work very effectively. Me, personally, I would stick with making it so that machine A can only burn DVDs that machine A can read.
Re: Your hypo on the seat belt law. Actually, it isn't reasonable to expect that without the broadcast flag "high value" content will move somewhere else. Every movie on DVD is available on the internet via P2P. Yet, strangely enough, Hollywood keeps on producing DVDs. Currently, there is no broadcast flag yet, strangely enough, many popular shows are already produced in HDTV. If the broadcasters feel that they can make more money by shifting high quality content to pay services, they are going to do so, regardless of the presence of the broadcast flag. You can't simply assume that DRM adds value over pay services. So, in other words, your assumption simply isn't reasonable.
Oh, and I apparently forgot to mention that the FCC wants to allow "down-converting" to be legal in order to speed the transition to digital broadcasting. Here's a quote about "down-converting" from TV Predictions:
"[U]nder the Ferree proposal, which is expected to receive Powell's blessing, the switch [to digital] would occur in any market when 85 percent of households have the capacity to watch digital signals. To achieve that objective, Ferree's plan would allow cable operators to "down-convert" a digital signal so all analog sets could receive it.
In other words, many consumers would never need to buy a Digital TV. However, they also would never actually see a real digital picture. They would get something in between that's a little better than analog but not nearly as good as digital.
To make matters worse, under the Ferree plan, cable operators might "down-convert" the digital signals for all TVs to save bandwidth. (This would give cable ops extra bandwidth for more channels and services.) So, even if you purchase an expensive Digital TV, which the federal government will still encourage you to do, you might not get digital signals.
The FCC is likely to approve the Ferree proposal because it doesn't have the political will to try to force people to buy Digital TVs."
So, even if I accept your analogy (which I don't) we pay for seat belts, but they don't actually get installed in the car.Permalink to Comment
Well, let's save the debate about who understands less about what for another time. Instead, let's focus on specifics:
I started off by challenging your statement that the Flag regulation prohibits watching copies made on one machine on another machine. Your response is that no recording method that does not prohibit switching machines will be effective. Regardless of whether this is true, you have not shown how the regulation prohibits taking removable media from one house to another house -- and you can't, because it doesn't.
Instead, you raise the question of whether current DVD recorders offer sufficient protection to be an authorized recording method. They don't, but you miss the point that they don't have to -- most DVD recorders are not integrated with DTV receivers, and have only analog video inputs. And in any event, let's remember that the Broadcast Flag will have no impact on the functionality of current equipment -- it is transparent to current equipment, which is the primary reason the FCC went this route as opposed to encryption at the source. So your current DVD recorder will continue to record programs that you can take to your brother's.
As for future recording methods for removable media (which you'll need to record 720p or 1080i content, because DVDs can't handle it), you say that the fact that "every authorized media recorder is going to have both the encrypting and decrypting algorithms, making it extremely easy to crack the DRM." I understand you to be making the claim that any protection method that requires both encryption and decryption algorithms to be widely implemented in consumer devices is so inherently unsafe as to not even be worth the effort. I think this will come as news to the many consumer electronics and computer manufacturing companies that have proposed exactly such solutions. If you have anything in the way of a paper written by reputable scientists to back up your claim (postings on Slashdot don't count), please cite them here.
If your implication is that, because (in your opinion) such a scheme is ineffective, such recording methods will never be authorized by the FCC, at least 3 such schemes have been proposed for removable media in the current interim proceedings before the FCC (see MB Docket Nos. 04-60, 04-62, and 04-68), and none have been proposed that implement what you claim to be the only "safe" way to implement encryption, that is, limiting decryption to the very same device. The fact is, the Flag regulation simply will not prohibit the copying you said it would. It prevents unauthorized redistribution of digital content not by limiting where physical media can travel, but by limiting the digital outputs such content can travel over once decrypted.
Moving along, my selt belt analogy was in response to your implication that no law that benefits someone will limit that person's behavior. I pointed out that seat belt laws do exactly that. Your response is that in the case of the Flag, the regulation is not necessary. I take it you have conceded the more general point that laws that impose limits sometimes benefit some of the very people who are limited.
On whether the regulation is necessary, you cite the current boom in DVD sales, and the fact that some stations are broadcasting in HDTV. DeCSS is, of course, illegal, and this has had no small impact in limiting its spread and use. As for HDTV broadcasts, the current phenomenon of unprotected digital broadcasts is not a stable situation, as even a moment's reflection will reveal. The threat to television programming is growing rapidly and will soon pass a catastrophic threshold. Technology continues to improve on many fronts at once. Broadband availability is increasing, not only in terms of the number of homes but also in terms of bandwidth. Compression techniques get better every year, and storage capacity continues to increase. I've always found it odd that many of the same people that ordinarily celebrate technology's habit of improving by leaps and bounds suddenly claim that it will come to a screeching halt when it comes to the threat it poses to content owners. You can't have it both ways.
Your discussion of down-conversion by cable operators is, as far as I can tell, a red herring; regardless of how fast it comes, the digital transition is coming eventually, which is why the Flag is needed.
I concede. The broadcast flag doesn't prohibit use of removable media. Silly me. I was assuming that the FCC's broadcast regulation was meant to be effective at keeping HDTV broadcasts off the internet. Obviously, if you don't really intend to keep HDTV broadcasts off the internet, but are in reality interested in the other purposes of DRM (see my "Why Use DRM That Doesn't Work? post), then, of course, you can permit use of removable media. Especially if the systems proposed require new hardware and new media formats.
In any case, that doesn't undermine my argument that consumer copying is not "unaffected" as the FCC claims.
Yes, I am arguing that "any protection method that requires both encryption and decryption algorithms to be widely implemented in consumer devices is so inherently unsafe as to not even be worth the effort" - if your intention is to prevent content from migrating onto the internet. DRM has many other uses for which it is effective. Preventing mass distributed consumer content from getting on the internet is not one of them. See, in general, Schneier, Felten.
Frankly, I don't think this will come as a surprise to any of the manufacturers proposing various DRM implementation. But why should they care? The FCC has mandated the use of this technology whether or not it is effective with regard to the purported goal. The manufacturers only have to propose an implementation that passes muster with the FCC and then they may be able to get part of the market that the FCC has created. If you were to ask any of the manufacturers whether they can guarantee that their technology will never be cracked, they would say, "no." Indeed, many of the proposed implementation assume that there will be some cracking of their code so they include protocols such as key revocation.
With regard to your seatbelt analogy, I deny that the broadcast flage provides any significant benefit to consumers. Instead, I believe that there is large benefit to the content industry. My point is that, yes, requiring auto manufacturers to include safety belts is beneficial to the auto manufacturers (more of their customers live), but you would never promote a law requiring seat belts claiming that it was for the benefit of the auto manufacturers. You would promote the law on the basis of its main beneficiaries, the automobile passengers. In this case the main beneficiaries are the content companies, not the consumers. So, the broadcast flag should be promoted as benefiting the content companies.
As for your final points, I will address them in more depth in a main posting, except to note that I am well aware of the wonderful advances in technology. If you were familiar with my work you would realize that I'm not trying to have it both ways - I merely think that DRM is a bad way to solve the problem.Permalink to Comment
If you really want to sit at your DVD recorder burning 1000 DVDs to distribute, nothing in the Flag regulation (as opposed to copyright law) prevents that. But odds are you're not going to want to do that. The physical labor and cost of media involved acts as its own speed bump. Electronic retransmission removes that speed bump. Hence, the regulation is designed to put brakes on retransmission. See 47 CFR 73.9003(b)(2) and .9004(b)(2). All that is required is that the demodulation product use an "authorized recording method." No one - - literally no one -- has proposed criteria for authorized recording methods that would prohibit recording to removable media. Ergo, the regulation will not prevent recording to removable media.Permalink to Comment
I believe that the broadcast flag will just kill digital TV, just like the limits on digital audio tape killed DAT sound recording. And itís going to mean a lot of lost money, lost sales and other disagreeable consequences Ė none of which the movie industry will have to bear.
"Well, let's see, under the broadcast flag, consumers will not be able to make a copy of a broadcast and take it to their friend's house. I won't be able to record a show for my brother and then hand him the copy to use at his home."Permalink to Comment
Tracked on May 7, 2004 05:44 AM
Tracked on May 7, 2004 01:09 PM
Tracked on June 27, 2004 01:32 PM