RSSFCC to consider MPAA proposal to lift DVR control ban
By Scott M. Fulton, III | Published June 9, 2008, 11:55 AM
A new round of petitioning by movie studios to the FCC has triggered a renewed debate over whether studios and content providers have the right to send signals to consumers' DVRs, disabling their ability to record certain programs.
As a result of public debate that took place in early 2004, the US Federal Communications Commission under then-Chairman Michael Powell adopted a set of rules that prohibited the carriers of digital TV programming from adopting any kind of control over viewers' rights to record those programs, or to reduce the quality of programs they might happen to have the ability or means to record. Now those regulations are under review as the result of a petition from the Motion Picture Association of America, which argues that such controls would be vitally necessary to the existence of the successor service to "premium cable."
FCC rules today -- specifically, Title 47, Section 76.1903 of the Code of Federal Regulations (PDF available here) -- specifically prohibit the use of what are now being called selectable output control (SOC) devices. That paragraph reads as follows: "A covered entity shall not attach or embed data or information with commercial audiovisual content, or otherwise apply to, associate with, or allow such data to persist in or remain associated with such content, so as to prevent its output through any analog or digital output authorized or permitted under license, law or regulation governing such covered product." ("Covered entity" in this case means, a licensed provider of digital programming bound to FCC rules. Recently, the FCC has referred to such entities as multi-channel video programming distributors (MVPD).)
Debate over the rule began in April 2003, with the rule banning SOCs adopted in September. The following month, however, commissioners brought the matter of the ban to public debate, arguing it was necessary for the maintenance of viewers' rights. At that time, the Commission suggested the drafting of a Memorandum of Understanding (MOU) between program distributors and the Commission, in order to get MVPDs on the record as agreeing to the fundamental principles of the prohibition order.
"Bans on both the current use of selectable output control and the down-resolution of broadcast programming will further the DTV transition and ensure that consumer expectations regarding the functionality of their digital cable ready televisions and products are met," reads the October 2003 proposal (PDF available here). "In addition, enacting limits on the amount of copy protection that may be applied to different categories of programming strikes a measured balance between the desire of content providers and MVPDs to prevent the unauthorized redistribution or copying of content distributed by MVPDs and the preservation of consumer expectations regarding the time shifting of programming for home viewing and other permitted uses of such material."
At the time, the FCC was also considering petitions from some CE manufacturers who argued that consumers might not invest in a digital platform if they did not have faith in being able to record any program that came into their home. (This prior to the start of the format war between HD DVD and Blu-ray.) Meanwhile, DirecTV made its support of SOCs a part of the public record, claiming as far back as early 2003 that the ability of MVPDs to competitively bid for the right to air certain content under premium conditions mandates that MVPDs have facilities available to them for restricting viewing ability.
In other words, for instance, should an HBO service want to put together a premium package for a hit film -- say, the latest Indiana Jones release -- it may need to demonstrate to Viacom that it could present the film to a select group of high-paying DirecTV subscribers, rather than to the whole lot of subscribers all in one lump.
Last Thursday, the Commission under Chairman Kevin Martin announced a period of public comment, ending June 25, for responses to the MPAA's petition that this rule be stricken from the books. Central to the Association's argument is the notion that the ability to preclude individuals from recording, or perhaps even viewing, some programs at particular times represents a public service.
As last Thursday's notice reads, "Specifically, MPAA requests that the Commission waive its prohibition on the use of selectable output control...for set-top boxes in order to facilitate partnerships between Petitioners and multi-channel video programming distributors...to provide copy-protected, high definition feature films directly to subscribers prior to the films' prerecorded media release dates. According to MPAA, the new service will benefit the public by expanding the timeliness and quality of consumers' in-home viewing choices while aiding the digital transition by providing more incentives to purchase new high definition televisions. MPAA contends that allowing customers to view high-value, recently released films via unprotected outputs would create an unacceptably high risk of unlawful copying and redistribution. Therefore, the proposed service could be offered only if the SOC prohibition is waived. Further, MPAA argues that the Commission recognized the potential benefits of SOC when it adopted the rule and left open the possibility of waivers that would be 'advantageous to consumers."'
In the most recent draft of their petition dated May 9 and filed last Friday (PDF available here), MPAA members cite certain parts of the 2003 debate where commissioners apparently said they would be willing to revisit the issue should new business models arise. Now, members say such an event is coming:
"Specifically, the Petitioners are interested in exploring opportunities to provide consumers with the ability to order recently released theatrical, high-definition movies directly through their MVPD (the 'Services'). These new Services are exactly the type of 'new business models' that the Commission contemplated when it adopted the encoding rules. While each studio would have its own independent business model developed through private negotiations with existing and potentially new partners, the purpose of this Petition is to remove a general regulatory impediment that prevents implementation of content protection required in the specific case of the Services.
"In order to make this extremely high value content available for general in-home viewing at such an early release window, protections are necessary to ensure it is not exposed to unauthorized copying or redistribution," the MPAA petition continues. "Enabling SOC in this instance will provide the Petitioners with vital protections by allowing their high value content to flow only over secure and protected digital outputs. Absent sufficient protections, the Petitioners' theatrical movies are simply too valuable in this early distribution window to expose them to uninhibited copying or redistribution."
In other words, studios want to create a new window for distributing their own content first through their own exclusive channels (one of the original purposes of the Internet link, as Blu-ray and HD DVD consoles were originally conceived). Such channels would bypass premium services such as HBO and potentially DirecTV, creating a "super-premium" distribution window that postpones those of the independent MVPDs. And if you noticed a thin veil, it's probably there on purpose: Studios are actually suggesting that they may not release their content over existing digital channels at all, rather than risk piracy.
I don't see why they need this exception. Time Warner Cable already has movies on its OnDemand service that are released concurrently with their theatrical release. These are all independent flicks, but the risk of piracy through OnDemand services is pretty low since you need a locked-down Time Warner DVR to watch it.
The MPAA knows they don't need this ban lifted to do what they're asking for.
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|United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued February 22, 2005 Decided May 6, 2005 No. 04-1037
AMERICAN LIBRARY ASSOCIATION, ET AL., PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS
MOTION PICTURE ASSOCIATION OF AMERICA, INC., ET AL. INTERVENORS
On Petition for Review of an Order of the Federal Communications Commission
http://pacer.cadc.uscour...ons/200505/04-1037b.pdf
34
III. CONCLUSION
The FCC argues that the Commission has “discretion” to
exercise “broad authority” over equipment used in connection
with radio and wire transmissions, “when the need arises, even
if it has not previously regulated in a particular area.” FCC Br.
at 17. This is an extraordinary proposition. “The
[Commission’s] position in this case amounts to the bare
suggestion that it possesses plenary authority to act within a
given area simply because Congress has endowed it with some
authority to act in that area. We categorically reject that
suggestion. Agencies owe their capacity to act to the delegation
of authority” from Congress. See Ry. Labor Executives’ Ass’n,
29 F.3d at 670. The FCC, like other federal agencies, “literally
has no power to act . . . unless and until Congress confers power
upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374
(1986). [line breaks inserted for emphasis]
In this case, all relevant materials concerning the FCC’s
jurisdiction – including the words of the Communications Act
of 1934, its legislative history, subsequent legislation, relevant
case law, and Commission practice – confirm that the FCC has
no authority to regulate consumer electronic devices that can be
used for receipt of wire or radio communication when those
devices are not engaged in the process of radio or wire
transmission.
Because the Commission exceeded the scope of its
delegated authority, we grant the petition for review, and reverse
and vacate the Flag Order insofar as it requires demodulator
products manufactured on or after July 1, 2005 to recognize and
give effect to the broadcast flag.
So ordered.
If the FCC has no authority for the Broadcast Flag, they have no authority to authorize SOC.either. One could probably argue they have no authority to deny the use of either as well. However you'd think the copyright holder would be at risk for exceeding the rights granted by Congress, and whatever peril that might entail. It is Congress that the MPAA should be petitioning, not the FCC. My guess is that the strengthening copyright law at the expense of the balance to the public good is the equivalent (ACTA aside) of playing with green Kryptonite politically. The MPAA was a party to the above case, they should know better.
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|I'm getting tired of all this constant MPAA/RIAA BS. Luckily I don't live in the United States, but unfortunately the crap these organizations pull affects me nonetheless. These giant corporations rake in billions and billions of dollars each year, shattering records from the previous year, yet it's never enough. They always want more, and always find someone to blame for not getting more. If it's not the physical pirates then it's the online pirates. Of course they can't do much about either of those groups, so they're gonna screw their own paying customers. No wonder everyone hates these organizations. Well guess what, pirate or paying customer, we will ALWAYS find a way to do what we want with our content. Myself and my whole family have been cable subscribers for as long as I can remember. We don't just pay for basic cable either, we get most of the premium channels. As soon as they do something that stops me from using my DVR the way I want to is the day I cancel my cable subscription and start downloading all my shows from the net. I have a feeling a lot of other people may do (or already have done) the same.
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|They will also stop from doing that by putting caps on your internet. Either way you look at it they will win which is to bad.
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|even if it does happen there will be a group of coders that can break any encryption out there. it will be just as easy as the pirates do to get free TV
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|Nothing the MPAA or RIAA do hurts or even slows down illegal distribution. I've never seen one story saying that their legal or technological blockades have ever stopped a song / movie from being illegally distributed. All it has done is hurt the average consumer that wants to listen to their songs on their MP3 player or time/place-s*** a movie/tv-show -- media that they've paid to be able to listen to / watch. The people that steal media don't care if there's a flag there or not -- they're going to steal it no matter what. The media companies are only alienating their paying customers when they do stuff like this.
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|I have been saying this now for over 2 years. the entire DTV movement has NOTHING NOTHING to do with getting the public better service. It has EVERYTHING to do with removing ALL consumer fair use rights that was granted under betamax, which the industry has been sore about losing and wanted rid of forever...
Even paying a subscription to Cable give a consumer No right to record content for archiving and personal time s***ing in the eyes of the MPAA. Indeed Even buying a DVD is not enough cause you can not put that purchased content on to any medium, you as a consumer, choose to watch it on legally. Meaning iPod Archos whatever.
This is yet another step in getting full Broadcast flag control of ALL content preventing the use of DVRs, DVD+-Rs, stream recoders, and VCRs. No matter what you pay as a subscriber to your Cable or satellite provider.
Thus Timeshifting, Personal Archiving, and general legal recording of any kind is soon to be a thing of the past. And the public remains IGNORANT of this FACT!
The fact is We the public Own the airwaves not the industry that produces content. Thats why the FCC exists in the first place, to protect the public trust that our taxes are not misused in the governance of public use frequencies. And that Consumer Rights are preserved in that public trust. This is something that the FCC has forgotten or twisted through the years to mean protect the content providers interest first, THEN maybe think about the public interests. IE the lacks in standards and practices across the board.
And the worst thing of all is that WE the US and EU consumers are not the worst of the problem by any standard, even if you count the millions upon millions of p2p stream users that get their television that way every day in the western world.
The real criminals are those profiteering off piracy. I mean in the eastern world, if its first run on the US screens, that same day you can go on the streets of India, or Japan, or Korea, Russia, China, Just about anyplace in the eastern world, and find that film for a few dollars US. Hell just check Ebay. They have IRONMAN Right now up there for $5. THIS is Piracy!!! NOT Recording a program in your own home for your own use, that you have paid for through subscription. Not downloading a show from P2p or Hulu because you missed seeing it on the day of broadcast. NOT using a DVR to record your favorate TV shows cause you don't want to be locked into THEIR times to watch things and would prefer to watch them when you want too. That is called FAIR USE.
PIRACY is just that, Profiteering! and in no way is what the industry been focusing on in the past decade been anything close to eliminating Piracy. All they been doing is restricting Fair use. Wanna get rid of the real piracy? Start blocking internet access in the western world to all Eastern IPs. Stop making media at all.
Trade embargo's on all countries allowing rampant piracy to happen in the open on their streets. Stop giving THEM who pirate the worst the cheapest prices on legal media, and preserve that bargin rate for countries that actually purchase content.
Make DVD with built in doublers that only function in Western equipment. Have such equipment MADE in the west only, for the WEST ONLY. The eastern countries do that with their people... they make equipment that is ONLY for eastern peoples (because they play anything on any format with no restrictions), I am just saying the West should do the same.
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|"According to MPAA, the new service will benefit the public"
Of course it will. We, as Americans, have learned over the last 6-1/2 years that taking away our rights in small increments is always a public benefit.
We should all just hand our lives over to oil and media companies and be done with it. After all, they own (or control) every aspect of our lives . . . including our government.
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|Or, company what makes a certain brand of DVR
doesn't pay the right royalties and all of a
sudden it won't record anything.
I say if they do get to flag content they must
pay for all service calls caused by.
Mostly, who has time to watch a movie all the
way thru in one go?--Back when I had ten bucks
I could, but now? I don't try to watch anything
"live."
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|Yep, all content is still owned by the label. All your paying is a license fee to use it, with certain restrictions, of course: no public viewing, unauthorized copying, blah blah blah. Really these flags they want to push into digital TV streams is not much different but this time your forced to abide.
We all know what happens when your 'forced' into something you don't like. Remember Sony's botched attempt to enforce the copying restriction. I see the same backlash happening here. Although there won't be rootkits involved. Nobody likes to be told what you can or cannot do with the content you view or listen. I thought the MPAA would take a page from the recent DRM free MP3 tracks that are hitting Yahoo, iTunes, etc.. I guess they'll haveto learn the hard way themselves.
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|"send signals to consumers' DVRs, disabling their ability to record certain programs."
..now theres a real PR winner for the Motion Picture Association of America.
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|"YOU OWN NOTHING" according to all the small print!
Go ahead, read it on the back of that DVD, CD, GAME, VHS TAPE, CASSETTE, 8-TRACK. According to all that, you own NADA, you are just renting it!
Even the place you work, they make you sign a paper, most job have it that is essentially says "Any Technologies that you invent / discover while working for (Company Name Here) is property of (Company Name Here)."
Its weird, for not being able to own nothing, we sure get taxed alot for not having squat.
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|Newsflash to studios:
Your movies are already pirated, often the same day they hit the big screens *or earlier* by people working in your own chain of distribution.
You know this. We know you know this. DVRs don't even enter the piracy equation. I don't recall having ever heard a single person say "Oh, I want to see that movie! Can I borrow your DVR?!".
Seriously, this is a very weak reason to retry the broadcast flag discussion.
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|Oh BTW. I recenty got to go up in a projection booth at Carmike cinimas that have these new DLP projectors... The Digital Light Processing projectors are top of the line... they have tech that can detect cameras in the theater and white out the recording. bravo I say. but gee what about in the projection booth itself?
Imagine my shock and awe at the existence of 3 wire component out on these Projectors. At the same time the movie is playing on screen, someone with a laptop or DVR can sit there in the projection booth and record the movie right from the projector itself in flawless detail.
Now tell me that is not just ASKING for it to be done... Seriously... These underpaid Prob not even out of high school employees running this stuff, and opportunity is right there for the taking. Like sitting down porn in front of a teenage boy. Its going to be looked at. The studios and publics ecstasy over Digital everything does NOTHING for the public really. but further restrict their rights as a consumer while making it Easier for those that usurps the system to do things they are not suppose to do for their own reasons. In the end making We the public guilty and accepting punishment for what a handful of people do that have access to the very equipment they are hired to operate. That handful results in millions of copies world wide. It gets even worse with the Digital Screeners they give out to the press. HELLO!!! Your giving early release DVDs to a bunch of scum newspaper and media people that would just as soon spit in your eye anyway studios... STOP DOING IT AT ALL!!
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|Don't tell any of the professional pirates or any of those teenagers that have a job working in one of those Carmike cinemas about the new Hauppauge component capture device that encodes it's input in h.264.
Movie piracy would take on a whole new meaning.
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|They already know most probably. :P
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|**** OFF MPAA.
You dont want to piss us off anymore...
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