Today, the Senate Judiciary Committee held a hearing considering the “problem” of the analog hole. Public Knowledge President Gigi Sohn was the last witness, and the 3 Senators in attendance seemed to react well to her message and the concerns of our allies in the tech sector.
First, let's cover some technical and legal background. (Skip ahead if you just want the digs on the hearing. Also, here are Gigi's oral and written (pdf) testimony.)
The analog hole is the process of converting digital content to an analog signal and re-digitizing it. (This process is called “reconversion”.) It's the last major, workable solution by which end users can copy protected digital media content. For instance, if I want to use my DVD collection of Hitchcock movies in order to make a video montage illustrating the director's lighting choices (which would probably be fair use), I have no good choices.
I can hack the encryption on my commercially released DVDs and make perfect digital copies, but that's illegal (a fact bemoaned by professors at Penn (pdf)). I can use the analog output from my DVD player, but that's cumbersome and I lose a lot of quality. If I'm really desperate, I can videotape the picture from my TV or computer monitor, but that's even more cumbersome, and output quality is a joke. (This method would make my montage pointless, because lighting choices would be indistinguishable.)
If I don't want to break the law, I have to use an analog hole solution–options 2 or 3 above. Now, the studios are really upset about the analog hole because it gives consumers and other users (e.g., media literacy groups) the technical capacity to do things with content that the studio did not specifically authorize.
(Now about the hearing.)
Enter H.R. 4569, a bill mandating that all analog-to-digital converters respect a content protection scheme hand-chosen by the motion picture industry. Any encoder would have to recognize and obey CGMS-A, an encryption technology, and VEIL, a watermarking technology.
CGMS-A is an established but rare technology that can get lost in the transmission between connected devices. Combined with VEIL, however (which is much harder to lose, accidentally or deliberately), it becomes much more robust. If VEIL is present and CGMS-A is not, then a compliant device will know that the CGMS-A signal has been stripped along the way.
Gigi, as well as witnesses Gary Shapiro (Consumer Electronics Association) and Matt Zinn (TiVo) did a solid job explaining why this bill is a terrible idea. They eloquently demonstrated the following:
- Except for videocameras in movie theaters, a problem that was just addressed by recent legislation, the analog hole has not been shown to be a cause for any substantial degree of copyright infringement. Consumers reconverting analog outputs are generally making legal uses of media content.
- It's premature and probably foolish to mandate the implementation of CGMS-A plus VEIL. These technologies have never been implemented together in the marketplace. So far, VEIL has only been used in toys that interact with Batman cartoons, and an industry group swiftly rejected the combination of the two technologies as beneath serious consideration.
- The Patent and Trademark Office, which would implement the regulations, is not qualified to do so and is already so overworked as to create a patent backlog of historic proportions.
- Implementing this “solution” would make millions of consumer devices obsolete. If your TV is noncompliant and you buy a new, compliant TiVo, your TiVo may not record the signal from your TV.
- The bill would further erode the public's right to make fair uses of digital video content. The content industry would get to tell you what you can and cannot record, and you'll never be able to copy it more than once. (That Hitchcock montage is now not impossible to create without breaking the law, because producing an edited product requires at least 2 copies.)
The hearing went really well. Judiciary Chairman Arlen Specter (R-PA), Sen. Orrin Hatch (R-UT), and Sen. Patrick Leahy (D-VT) attended, and they all asked the studios to do a better job of documenting and quantifying the alleged widespread infringement resulting from analog reconversion. None of them seemed particularly convinced that there is a real problem here.
Leahy was particularly skeptical of the proposed legislation. He invoked the VCR as an important example of innovation that Congress did not squash, to the benefit of all involved.
Even Hatch got in on the act, asking the studios to address the concern that the House bill would cover an incomprehensible number of devices with analog converters, from F-16s to toaster ovens.
Specter also expressed a desire for less far-reaching legislation. Further, he was concerned by the major disagreement among panelists over exactly what the technology and legislation would do. With this much “confusion” on the part of panelists, Specter insisted that this was another sign that the time is not right for legislation. If the most qualified people in the country could not agree, then how could we explain this law to consumers?
If you care about fair use, today's hearing was a win.