Remember the “Hollings bill” back from 2002? It was a bill that would essentially put a copyright cop in your consumer electronics and PCs–to ensure you didn't do anything with content that wasn't authorized by the content industry. The bill put copyright owners in control of innovation.
Here's the US Senate Draft of the “Digital Content Protection Act of 2006.” Look familiar? It may go about it differently–but the DCPA is essentially the Hollings bill, only in pieces-parts. Instead of saying “one mandate to rule them all,” the controls split into different proceedings at the FCC:
One that requires the FCC to adopt the broadcast flag, and amend it in anyway it sees fit (including total reconsideration and rewrite of the rules!!!)
Another that requires the FCC to adopt a radio flag for both over the air and satellite digital radio transmissions…”to prevent the indiscriminate unauthorized copying of copyrighted digital audio content transmitted by its licensees and the redistribution of such copyrighted content over digital networks.”
We all understand the implications of the regular digital TV broadcast flag, but what about this version of a radio flag? At first glimpse, it may seem like there are aspects to like about it:
(d) to the extent that such regulations cover devices, cover only devices that are capable, without any hardware alterations or additions, of receiving digital audio signals when such devices are sold by a manufacturer.
(b) [Regulations shall] permit customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law;
And, thankfully, “public interest organizations” are permitted to submit proposals.
But, reading those parts alone does not give you the full picture. There's a little slight-of-hand going on here.
First, the bill says that the FCC regulations are only to cover devices that are capable of receiving digital audio signals. But if that's the case, why does the FCC need to develop “Secure Moving Technology”? Read here:
(B) objective criteria for approval by the Commission of methods of recording and Secure Moving Technology for material covered by the Broadcast Flag;
and here in the definitions section:
b) “Secure Moving Technology” is a technology that permits content covered by the Broadcast Flag to be transferred from a broadcast receiver to another device for rendering in accordance with customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law and that prevents redistribution of copyrighted content over digital networks.
So which is it? Is the FCC only permitted to regulate digital radio receiving devices, or do they get to regulate every device that touches a digital radio receiving device? Why does it matter? Well, it's the difference between the regulations only changing the design over digital radios, versus regulating iPods, PSPs, computers, cell phones. Am I missing something, or does this regulation gives FCC control over anything “that permits content…to be transferred…to another device”? My reading of that might even include the crude recording method of putting a microphone up to speakers (note the “Secure Moving Technology” doesn't include the word “digital”).
Second, the bill says that the FCC's regulation had to “permit customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law;“. But isn't that given–it's that pretty much one of the FCC's roles in protecting the public airwaves? When PK's and numerous public comments asked the FCC to protect our fair use rights, the FCC declined to design the broadcast flag to respect copyright law. Unfortunately, there's little in this bill to ensure that our fair use rights aren't cast aside.
What's not in this bill compared to Hollings '02? Closing the analog hole. Well, don't worry, that's already been introduced over in the House.
The fact remains that the main issue here is not about piracy, it's about control. The content industry needs a congressional mandate to control the functionality of consumer electronics and PCs, and in turn, what consumers can do with the devices and content they legally obtain.