FCC’s DRM ban may derail distribution of new-release films on cable TV

by on August 5, 2008 · 44 comments

There’s been a lot of FUD floating around about the MPAA’s plan to offer new release films for cable subscribers to watch at home on pay-per-view channels. Currently, movies come out on DVD about four months after their theatrical release, and are typically available on pay-per-view a month or two thereafter. As box office receipts have waned, Hollywood has warmed to the idea of letting consumers watch movies at home just a few weeks after being released in theaters.

Due to piracy concerns, new movies would be subject to an extra layer of copy protection. The movie studios want to use a technology called Selectable Output Control (SOC) to prevent new release films from being viewed on analog outputs. SOC makes it possible to seal the “analog hole” by disabling all unprotected paths.

Consumers are willing to pay to watch new movies at home, and content producers are willing to transmit them, but government is standing in the way. FCC regulations forbid multi-channel video programming distributors from activating SOC, but firms may apply for a waiver from these rules if they can demonstrate that consumers stand to benefit. The MPAA has applied for a waiver, arguing that “These new Services are exactly the type of ‘new business models’ that the Commission contemplated when it adopted the encoding rules.”

Under Section 304 of the Telecommunications Act of 1996, the FCC is tasked with “assuring commercial consumer availability of equipment used to access services provided by multichannel video programming distributors.” FCC regulations, therefore, mandate that all video transmitted on cable TV must be viewable on all outputs, including legacy analog connectors like RCA and S-Video. In a 2003 Notice of Proposed Rulemaking, the FCC stated that, “we are concerned that selectable output control would harm those ‘early adopters’ whose DTV equipment only has component analog inputs for high definition display, placing these consumers at risk of being completely shut off from the high-definition content they expect to receive.”

But it’s expected that early adopters will sometimes encounter technical hurdles. Why should Selective Output Control be any different? Just as HD-DVD players are effectively obsolete, and K56flex modems are no longer supported by most dial-up ISPs, people who bought HDTVs several years ago prior to the adoption of HDCP might have to live without the ability to watch new release movies at home.

HDCP—which stands for High Definition Copy Protection, a digital encryption standard built in to nearly all newer HDTVs—lets consumers watch high-def programming in full 1080p glory over digital, encrypted outputs (DVI and HDMI). The trouble is that some consumers own high-definition displays that aren’t HDCP capable, as the standard wasn’t widely implemented until early 2006. But that’s hardly a reason why those who do own HDCP-enabled devices should lose out on the opportunity to view high-value content that content producers are uncomfortable releasing on mediums vulnerable to piracy.

New-release films are a major target for pirates, so MPAA’s worries about copyright infringement make sense. Typically, high-quality versions of new release films do not become widely available on the usual piracy venues until the film is out on Blu-Ray and DVD. Transmitting brand new movies in high-def on analog component outputs would allow pirates to distribute high resolution releases captured with off-the-shelf equipment.

With a growing number of IP-based video options coming to the scene, the market will punish overly aggressive DRM technologies. Consumers enjoy an increasing menu of alternatives to cable for viewing high-def movies at home. This fall, Xbox 360 owners will be able to stream Netflix movies straight to their console. If cable companies offer an inferior product—say, one that “breaks” commonly used outputs—subscribers will simply switch to competing video services

Concerns about cable subscribers paying for movies only to receive a black screen are overblown. Why would any cable company make such a bone-headed move? Hollywood has voluntarily chosen not to activate the Image Constraint Token (which “downrezzes” 1080p content to 540p when played through an analog output) for fear of alienating users. Facing fierce competition, cable companies have a strong incentive to avoid angering their subscribers.

Several groups have argued that the FCC should reject the MPAA’s waiver on fair use grounds. But content owners aren’t required to ensure that all movies can be easily timeshifted and archived. There is no consumer right to unfettered, analog video programming. Fair use is an important exception to copyright law, but that doesn’t mean government should mandate crippled DRM just so consumers can exercise fair use. If movie studios wish to relegate certain films to being viewed only on encrypted outputs, then it’s up to the marketplace to devise methods to allow for timeshifting of protected content.

The real impediment to fair use isn’t Selectable Output Control, but the DMCA’s chilling anti-circumvention clause. Software capable of breaking DRM shouldn’t be banned, but robust DRM shouldn’t be illegal, either. Consumers will shun content that’s encumbered with intrusive DRM, and market forces will reward copy-protection schemes that balance transparency with robustness. In the ongoing battle over DRM, the best course for government is to stay out entirely.

If there’s a market for new release movies delivered straight to the home, it should be allowed to emerge, unfettered by federal regulation. Content owners should not be required to ask for the FCC’s permission to activate DRM technology. If the FCC rejects the MPAA waiver, Hollywood may simply decide that nobody will get a chance to watch new release films at home.

  • Adam Thierer

    Ryan… You’ve got it exactly right and really nail the key point in your last paragraph. In essence, FCC regulation is currently limiting the development of a new business model, and one that I am dying to see come to market: direct-to-home, same-day-as-cinema releases. As a father of two young kids, it is extraordinarily difficult for the wife and me to get to the movies as much as we used to. I would gladly pay MORE than theater ticket price to watch “The Dark Knight” in high-def in my home right now.

    But the studios just aren’t going to make that plunge without some comfort level being attained first. If that means crippling some functionality over other outputs, so be it. Again, the alternative is no first-run movies to the home. And if you don’t like the sound of that, then just don’t order the first-run movies to the home!! For God’s sake, no one has an inalienable right to movies.

    Thus, those opposing this petition bear the burden of explaining why we shouldn’t relax these silly FCC regs and allow new media delivery models to develop. To be clear, we are talking about the REMOVAL of regulations here to allow a new business model to development, not the imposition of new rules or regulations.

    Finally, some will no doubt point out that crippling functionality or trying to enforce various DRM schemes will not work or are actually bad for business. SO WHAT? Then let the models fail and let the businesses who employ those methods fail. But don’t preemptively deny them right to at least give this model a shot. That just makes no sense whatsoever.

  • eric

    You say the regs are silly. But I do not, to my knowledge, have a single HDMI compliant piece of equipment. No soup for me.

    And the dictum, “No one has an unalienable right to movies,” applies equally to folks clamoring for first run box office hits streamed to their home the day of release. It is difficult for you to get away for an evening to go to the cinema, granted. That’s the price you pay in having a family.

    “The needs of the many outweigh the needs of the few.” Who are we to argue with an esteemed philosopher like Mr. Spock? I believe the FCC has weighed the needs of the few and the many, and made the correct choice.

  • Adam Thierer

    Eric… Well, assuming one agrees with the crass utilitarianism / untrammeled majoritarianism of the statement, “The needs of the many outweigh the needs of the few,” the question is, Who are “the many” in this case? I’d argue that the majority in this case would be the millions of Americans who — for whatever reason — either can’t, or don’t want to, go to movies in a theater. Why shouldn’t they have the opportunity to have this new business model made available to them? There’s a very good chance that these FCC rules will discourage that. Why would you want such rules to stand if they discouraged such innovation?

  • Adam Thierer

    Moreover, Eric, you say that your current devices do not have a single HDMI compliant piece of equipment and therefore you would miss out on these new offerings. So let me see if I understand your logic: If I don’t have the right technology to take advantage of a new service, then NO ONE should else should have the right to gain access to that new service. Is that what you are saying? Well, that’s just not right. As Ryan says above: “that’s hardly a reason why those who do own HDCP-enabled devices should lose out on the opportunity to view high-value content.”

    Moreover, just about every new piece of video hardware being delivered to market today has an HDMI jack. If you order digital service from a cable, telco or satellite operator today, you almost certainly will be getting HDMI / HDCP-compliant interfaces on the back.

  • http://www.techliberation.com Adam Thierer

    Ryan… You’ve got it exactly right and really nail the key point in your last paragraph. In essence, FCC regulation is currently limiting the development of a new business model, and one that I am dying to see come to market: direct-to-home, same-day-as-cinema releases. As a father of two young kids, it is extraordinarily difficult for the wife and me to get to the movies as much as we used to. I would gladly pay MORE than theater ticket price to watch “The Dark Knight” in high-def in my home right now.

    But the studios just aren’t going to make that plunge without some comfort level being attained first. If that means crippling some functionality over other outputs, so be it. Again, the alternative is no first-run movies to the home. And if you don’t like the sound of that, then just don’t order the first-run movies to the home!! For God’s sake, no one has an inalienable right to movies.

    Thus, those opposing this petition bear the burden of explaining why we shouldn’t relax these silly FCC regs and allow new media delivery models to develop. To be clear, we are talking about the REMOVAL of regulations here to allow a new business model to development, not the imposition of new rules or regulations.

    Finally, some will no doubt point out that crippling functionality or trying to enforce various DRM schemes will not work or are actually bad for business. SO WHAT? Then let the models fail and let the businesses who employ those methods fail. But don’t preemptively deny them right to at least give this model a shot. That just makes no sense whatsoever.

  • Ryan Radia

    Eric, if you don’t own any HDCP-compliant equipment, then granting the SOC waiver wouldn’t affect you. Sure, you may not be able to watch new-release films at home, but that is no different than the status-quo.

    The latest and greatest isn’t always available to those without advanced equipment. Just as you can’t play Super Mario Galaxy on a GameCube, and you can’t watch high-def content on a plain old TV set, what’s the big deal if consumers with older televisions are excluded from watching certain types of high-value content?

    Right now, nobody can (legally) watch HD new-release films at home. I fail to see why government should ban DRM because it discriminates against certain devices. A Zune cannot play a FairPlay AAC file, but plenty of iPod owners buy songs from iTunes anyway. HDCP gives content owners the peace of mind to offer consumers choices they’ve never had before, like new-release movies for pay-per-view rental.

  • eric

    You say the regs are silly. But I do not, to my knowledge, have a single HDMI compliant piece of equipment. No soup for me.

    And the dictum, “No one has an unalienable right to movies,” applies equally to folks clamoring for first run box office hits streamed to their home the day of release. It is difficult for you to get away for an evening to go to the cinema, granted. That’s the price you pay in having a family.

    “The needs of the many outweigh the needs of the few.” Who are we to argue with an esteemed philosopher like Mr. Spock? I believe the FCC has weighed the needs of the few and the many, and made the correct choice.

  • http://www.techliberation.com Adam Thierer

    Eric… Well, assuming one agrees with the crass utilitarianism / untrammeled majoritarianism of the statement, “The needs of the many outweigh the needs of the few,” the question is, Who are “the many” in this case? I’d argue that the majority in this case would be the millions of Americans who — for whatever reason — either can’t, or don’t want to, go to movies in a theater. Why shouldn’t they have the opportunity to have this new business model made available to them? There’s a very good chance that these FCC rules will discourage that. Why would you want such rules to stand if they discouraged such innovation?

  • Bob Schwartz

    You miss a little detail in the MPAA Petition — as they acknowledge in their Reply Comments (p. 12, second full par.), they seek the power to turn off any PROTECTED digital interface as well, irrespective of any threat to its security. In addition to confusing consumers, this will give them the power to play tech entrepreneurs off against each other, about either the interface technologies or the protection technologies; turn off any that support home recording on other than the operator-supplied set-top; and leverage the tech companies to put trap doors or responses into technologies, products, and interfaces that have nothing to do with cable. There are competitors to HDMI and HDCP, and companies that have invested in them.

    MPAA also did not rise to the challenge to demonstrate any HARM from the analog hole — just as they couldn’t the last time they went to congress on the subject.

  • http://www.techliberation.com Adam Thierer

    Moreover, Eric, you say that your current devices do not have a single HDMI compliant piece of equipment and therefore you would miss out on these new offerings. So let me see if I understand your logic: If I don’t have the right technology to take advantage of a new service, then NO ONE should else should have the right to gain access to that new service. Is that what you are saying? Well, that’s just not right. As Ryan says above: “that’s hardly a reason why those who do own HDCP-enabled devices should lose out on the opportunity to view high-value content.”

    Moreover, just about every new piece of video hardware being delivered to market today has an HDMI jack. If you order digital service from a cable, telco or satellite operator today, you almost certainly will be getting HDMI / HDCP-compliant interfaces on the back.

  • ryanradia

    Eric, if you don’t own any HDCP-compliant equipment, then granting the SOC waiver wouldn’t affect you. Sure, you may not be able to watch new-release films at home, but that is no different than the status-quo.

    The latest and greatest isn’t always available to those without advanced equipment. Just as you can’t play Super Mario Galaxy on a GameCube, and you can’t watch high-def content on a plain old TV set, what’s the big deal if consumers with older televisions are excluded from watching certain types of high-value content?

    Right now, nobody can (legally) watch HD new-release films at home. I fail to see why government should ban DRM because it discriminates against certain devices. A Zune cannot play a FairPlay AAC file, but plenty of iPod owners buy songs from iTunes anyway. HDCP gives content owners the peace of mind to offer consumers choices they’ve never had before, like new-release movies for pay-per-view rental.

  • Jon

    Ryan,

    It’s great to see that you made a post on this especially after the conversation we had. I’m glad to see the other perspective get some airtime — I’m often dubious at the public knee-jerk bashing that the MPAA/RIAA gets and how quickly people jump on the bandwagon. I mean, there’s no love lost between me and them, but let’s be honest — each issue should be evaluated fairly and independently.

    I’d make to make three comments briefly from memory. Apologies if I get some of the details wrong.

    First, I think I’m uncomfortable with the assumption that the content providers or the MVPDs wouldn’t do something because it would be boneheaded. See, Comcast’s throttling and blocking of legally transmittable materials; Sony’s rootkit scandal.

    Second, I’m also uncomfortable with the abject vagueness of the waiver petition. Does it apply to HD only or SD? Does it limit itself to analog outputs, or also digital outputs? What about protected vs. nonprotected outputs? The tru2way/CableCARD 2.0 spec actually allows for turning off any output, even protected digital ones like HDMI. I’m not positive that the petition specifically says that HDCP-protected outputs and data streams would be left alone. While the context suggests a very specific purpose and narrowly limited and defined implementation, it isn’t binding.

    Last, just because an MVPD or content provider threatens to withhold content but for a concession, it doesn’t mean that they won’t release it anyway. See, Viacom in re broadcast flag and DTV content; movie studios in re pre-recorded video casettes in the 1970′s.

    I personally find myself objecting less to SOC than some other possible source-defined constraints like DRM in general. But on the basis of the specifics (or lack thereof) delineated in what they’re asking for? I can’t stand behind that.

    note: All opinions herein expressed are my own and not representative of my employer, ex-employer, or any entity I may have been associated with.

    [1] I am not citing this. Unfortunately. I could be wrong. ;) But there IS only one studio per movie.

  • Chadlee

    The real impediment to fair use isn’t Selectable Output Control, but the DMCA’s chilling anti-circumvention clause. Software capable of breaking DRM shouldn’t be banned, but robust DRM shouldn’t be illegal, either.

    Perhaps the content industry would give up anti-circumvention for SOC?

    I say give them SOC, but only because it will further demonstrate the worthlessness of DRM. The groups that capture broadcast and cablecast content can easily capture from the HDCP protected pathway. And as is always the case, it only takes one capture. These early release titles will be online in full quality just hours after the first cablecast.

    As enthusiast owners of the Hauppauge HDPVR-1212 know, there are already dongles available the emulate some registered HDCP device, and allow component output from HDCP protected HDMI input.

  • Jon

    @Adam,

    I agree with your first post. I would also pay more than a ticket to watch TDK at home, on my nice TV, with my nice snacks, and my nice toilet. (Invariably if I’d had dinner, I have to get up in middle of a movie to pee. I have no idea why. My solution is a little preplanning — don’t eat dinner. Sigh!)

    However, keep in mind two things.

    There is no reason why studios can’t and don’t do that now.

    1. There are studios and independent production houses that do day-date releases already. See, PK’s filing in the SOC docket, 08-82.

    2. The delay on Dark Knight’s leak to the internet was 38 hours.

    3. iTunes is successful for the reason that it’s easy to use, relatively cheap, and allows the consumer to break up the traditional album format, not because of DRM. (Also because it has a lame marketing powerhouse behind it pushing in not-so-subtle ways, but that’s a whole ‘nother story.)

  • Adam Thierer

    Jon… Thanks for your thoughtful comments. And I am glad to see you point out what I didn’t want to claim to be #1 annoyance about going to movie theaters: Potty breaks and no pause button! (I always seem to need to pee at the critical moment in the on-screen action.) And then there are the jerks who answer their phones during the show, or worse yet, bring their babies in the theater. I hope there is a special ring in hell reserved for these morons.

    Anyway, regarding your point about how studios could do it now but don’t… We’ll, regardless of the reason, the fact is that they (at least the majors) just won’t. Perhaps this is an irrational fear, but I have a hard time believing that they will every accept that argument.

    So, let’s imagine that SOC regulatory relief is the equivalent a deregulatory bribe to get the studios to make the plunge. Isn’t it worth it?

    Look, I am not a big believer in the efficacy of DRM. How can anyone be given its miserable failure in so many other cases. But there are times when a little security blanket — or perhaps even the illusion of a security blanket — encourages content owners to make the plunge and try a risky new business model. Don’t forget, the studios are at war with the cinema owners over this issue since they are none to happy about all this talk of moving first-run movies to the home. So, there are multiple battles going on here and I’m not even sure if this will happen if the FCC does grant relief. But I don’t see how it could hurt to remove any unnatural legal barriers that might hold back the experiment.

  • Bob Schwartz

    You miss a little detail in the MPAA Petition — as they acknowledge in their Reply Comments (p. 12, second full par.), they seek the power to turn off any PROTECTED digital interface as well, irrespective of any threat to its security. In addition to confusing consumers, this will give them the power to play tech entrepreneurs off against each other, about either the interface technologies or the protection technologies; turn off any that support home recording on other than the operator-supplied set-top; and leverage the tech companies to put trap doors or responses into technologies, products, and interfaces that have nothing to do with cable. There are competitors to HDMI and HDCP, and companies that have invested in them.

    MPAA also did not rise to the challenge to demonstrate any HARM from the analog hole — just as they couldn’t the last time they went to congress on the subject.

  • Jon

    Ryan,

    It’s great to see that you made a post on this especially after the conversation we had. I’m glad to see the other perspective get some airtime — I’m often dubious at the public knee-jerk bashing that the MPAA/RIAA gets and how quickly people jump on the bandwagon. I mean, there’s no love lost between me and them, but let’s be honest — each issue should be evaluated fairly and independently.

    I’d make to make three comments briefly from memory. Apologies if I get some of the details wrong.

    First, I think I’m uncomfortable with the assumption that the content providers or the MVPDs wouldn’t do something because it would be boneheaded. See, Comcast’s throttling and blocking of legally transmittable materials; Sony’s rootkit scandal.

    Second, I’m also uncomfortable with the abject vagueness of the waiver petition. Does it apply to HD only or SD? Does it limit itself to analog outputs, or also digital outputs? What about protected vs. nonprotected outputs? The tru2way/CableCARD 2.0 spec actually allows for turning off any output, even protected digital ones like HDMI. I’m not positive that the petition specifically says that HDCP-protected outputs and data streams would be left alone. While the context suggests a very specific purpose and narrowly limited and defined implementation, it isn’t binding.

    Last, just because an MVPD or content provider threatens to withhold content but for a concession, it doesn’t mean that they won’t release it anyway. See, Viacom in re broadcast flag and DTV content; movie studios in re pre-recorded video casettes in the 1970′s.

    I personally find myself objecting less to SOC than some other possible source-defined constraints like DRM in general. But on the basis of the specifics (or lack thereof) delineated in what they’re asking for? I can’t stand behind that.

    note: All opinions herein expressed are my own and not representative of my employer, ex-employer, or any entity I may have been associated with.

    [1] I am not citing this. Unfortunately. I could be wrong. ;) But there IS only one studio per movie.

  • Chadlee

    The real impediment to fair use isn’t Selectable Output Control, but the DMCA’s chilling anti-circumvention clause. Software capable of breaking DRM shouldn’t be banned, but robust DRM shouldn’t be illegal, either.

    Perhaps the content industry would give up anti-circumvention for SOC?

    I say give them SOC, but only because it will further demonstrate the worthlessness of DRM. The groups that capture broadcast and cablecast content can easily capture from the HDCP protected pathway. And as is always the case, it only takes one capture. These early release titles will be online in full quality just hours after the first cablecast.

    As enthusiast owners of the Hauppauge HDPVR-1212 know, there are already dongles available the emulate some registered HDCP device, and allow component output from HDCP protected HDMI input.

  • Jon

    @Adam,

    I agree with your first post. I would also pay more than a ticket to watch TDK at home, on my nice TV, with my nice snacks, and my nice toilet. (Invariably if I’d had dinner, I have to get up in middle of a movie to pee. I have no idea why. My solution is a little preplanning — don’t eat dinner. Sigh!)

    However, keep in mind two things.

    There is no reason why studios can’t and don’t do that now.

    1. There are studios and independent production houses that do day-date releases already. See, PK’s filing in the SOC docket, 08-82.

    2. The delay on Dark Knight’s leak to the internet was 38 hours.

    3. iTunes is successful for the reason that it’s easy to use, relatively cheap, and allows the consumer to break up the traditional album format, not because of DRM. (Also because it has a lame marketing powerhouse behind it pushing in not-so-subtle ways, but that’s a whole ‘nother story.)

  • http://www.techliberation.com Adam Thierer

    Jon… Thanks for your thoughtful comments. And I am glad to see you point out what I didn’t want to claim to be #1 annoyance about going to movie theaters: Potty breaks and no pause button! (I always seem to need to pee at the critical moment in the on-screen action.) And then there are the jerks who answer their phones during the show, or worse yet, bring their babies in the theater. I hope there is a special ring in hell reserved for these morons.

    Anyway, regarding your point about how studios could do it now but don’t… We’ll, regardless of the reason, the fact is that they (at least the majors) just won’t. Perhaps this is an irrational fear, but I have a hard time believing that they will every accept that argument.

    So, let’s imagine that SOC regulatory relief is the equivalent a deregulatory bribe to get the studios to make the plunge. Isn’t it worth it?

    Look, I am not a big believer in the efficacy of DRM. How can anyone be given its miserable failure in so many other cases. But there are times when a little security blanket — or perhaps even the illusion of a security blanket — encourages content owners to make the plunge and try a risky new business model. Don’t forget, the studios are at war with the cinema owners over this issue since they are none to happy about all this talk of moving first-run movies to the home. So, there are multiple battles going on here and I’m not even sure if this will happen if the FCC does grant relief. But I don’t see how it could hurt to remove any unnatural legal barriers that might hold back the experiment.

  • http://blog.xflames.com Peter

    “Intellectual Property” is neither intellectual nor property. It’s not a scarce resource that has to rationed somehow so we all get a chance to get some. It is a concept to encourage people to produce content and ideas that could otherwise be copied proving no benefit to the originator, and therefore possibly produced in lessor quantities.

    If I copy a song from a CD, this does not take anything from the copyright holder, other than the nebulous potential that I might have paid again for another copy.

    So, since we allow copyright holders a limited monopoly over their creation for the net benefit of all, the question becomes where is the best place to draw a line on the limits of that monopoly.

    It is legal for me to copy my CD onto my MP3 player, but it is not legal for me to own a product capable of copying a DRM-protected track onto my MP3 player. That’s the problem right there, my otherwise legal actions are restricted by a combination of technology and weird laws.

    In the end I agree with Ryan that the problem is not that companies want to put DRM into their content, that’s something the market should be allowed to sort out, but the problem is that actions that are legal (copies of legal “originals” for personal use) are made difficult to perform *legally* due to the restrictions on DRM-breaking products. It is not a problem to attempt to make it difficult *practically*, that part the market can sort out.

    I don’t agree that government can stay out entirely, since IP is a creation of government, but they should err on the side of minimality. Perhaps I agree in practise, with a slightly nuanced perspective.

  • http://blog.xflames.com Peter

    “Intellectual Property” is neither intellectual nor property. It’s not a scarce resource that has to rationed somehow so we all get a chance to get some. It is a concept to encourage people to produce content and ideas that could otherwise be copied proving no benefit to the originator, and therefore possibly produced in lessor quantities.

    If I copy a song from a CD, this does not take anything from the copyright holder, other than the nebulous potential that I might have paid again for another copy.

    So, since we allow copyright holders a limited monopoly over their creation for the net benefit of all, the question becomes where is the best place to draw a line on the limits of that monopoly.

    It is legal for me to copy my CD onto my MP3 player, but it is not legal for me to own a product capable of copying a DRM-protected track onto my MP3 player. That’s the problem right there, my otherwise legal actions are restricted by a combination of technology and weird laws.

    In the end I agree with Ryan that the problem is not that companies want to put DRM into their content, that’s something the market should be allowed to sort out, but the problem is that actions that are legal (copies of legal “originals” for personal use) are made difficult to perform *legally* due to the restrictions on DRM-breaking products. It is not a problem to attempt to make it difficult *practically*, that part the market can sort out.

    I don’t agree that government can stay out entirely, since IP is a creation of government, but they should err on the side of minimality. Perhaps I agree in practise, with a slightly nuanced perspective.

  • Rekrul

    First, please fire your web designer. The alternating light and dark stripes make the text incredibly hard to read unless I press CTRL-A to highlight it all.

    I oppose the use of SOC for a couple of reasons.

    The most important reason being that using it for pre-DVD movie releases is just the tip of the iceberg. If the MPAA is granted this waiver, don’t you think that Showtime is going to be next in line claiming that first-run episodes of Weeds are too valuable to allow subscribers to rcord and possibly distribute them? And what about sports games and network specials? The movie studios and TV networks have wanted to put a stop to home recording for years. SOC opens the door to eventually do just that.

    I find this quote from your article especially annoying;

    “If movie studios wish to relegate certain films to being viewed only on encrypted outputs, then it’s up to the marketplace to devise methods to allow for timeshifting of protected content.”

    That would be true if, as you noted, the DMCA didn’t make circumventing the DRM illegal. Allowing the MPAA to use SOC would be giving them complete control and there’s not a damn thing the marketplace would be able to do about it.

    Another reason I oppose the use of SOC is that there is absolutely no need to release movies to on-demand months ahead of the DVD release. So I can’t legally watch The Dark Knight at home RIGHT NOW. Does the movie have an expiration date on it? Will it have spoiled by the time it hits DVD? What about all the movies that were released on DVD just this month? In all the fuss about getting new movies NOW, you ignore the fact that there are tons of new movies available NOW. True, they may not have been in the theater just last week, but does that make them any less watchable?

    Lastly, as others have pointed out, pirates already have the ability to record from so-called “protected” digital outputs. All it will take is for one person to record and then upload a copy of any given movie and then all this nonsense was for nothing. All they will have done is to prevent honest viewers who don’t have the latest equipment from viewing their movies.

    Macrovision was supposed to prevent copying video tapes. It failed. CSS was supposed to prevent copying DVDs. It failed. AACS was supposed to prevent copying HD-DVDs and Blu-Ray. It failed. Virtually every computer game has DRM to prevent copying. They’ve all failed.

    In light of the above, remind me again why the MPAA needs to be given this new power to supposedly prevent copying?

  • Rekrul

    First, please fire your web designer. The alternating light and dark stripes make the text incredibly hard to read unless I press CTRL-A to highlight it all.

    I oppose the use of SOC for a couple of reasons.

    The most important reason being that using it for pre-DVD movie releases is just the tip of the iceberg. If the MPAA is granted this waiver, don’t you think that Showtime is going to be next in line claiming that first-run episodes of Weeds are too valuable to allow subscribers to rcord and possibly distribute them? And what about sports games and network specials? The movie studios and TV networks have wanted to put a stop to home recording for years. SOC opens the door to eventually do just that.

    I find this quote from your article especially annoying;

    “If movie studios wish to relegate certain films to being viewed only on encrypted outputs, then it’s up to the marketplace to devise methods to allow for timeshifting of protected content.”

    That would be true if, as you noted, the DMCA didn’t make circumventing the DRM illegal. Allowing the MPAA to use SOC would be giving them complete control and there’s not a damn thing the marketplace would be able to do about it.

    Another reason I oppose the use of SOC is that there is absolutely no need to release movies to on-demand months ahead of the DVD release. So I can’t legally watch The Dark Knight at home RIGHT NOW. Does the movie have an expiration date on it? Will it have spoiled by the time it hits DVD? What about all the movies that were released on DVD just this month? In all the fuss about getting new movies NOW, you ignore the fact that there are tons of new movies available NOW. True, they may not have been in the theater just last week, but does that make them any less watchable?

    Lastly, as others have pointed out, pirates already have the ability to record from so-called “protected” digital outputs. All it will take is for one person to record and then upload a copy of any given movie and then all this nonsense was for nothing. All they will have done is to prevent honest viewers who don’t have the latest equipment from viewing their movies.

    Macrovision was supposed to prevent copying video tapes. It failed. CSS was supposed to prevent copying DVDs. It failed. AACS was supposed to prevent copying HD-DVDs and Blu-Ray. It failed. Virtually every computer game has DRM to prevent copying. They’ve all failed.

    In light of the above, remind me again why the MPAA needs to be given this new power to supposedly prevent copying?

  • Ryan Radia

    Mr. Schwartz–You correctly point out that the SOC waiver petition is fairly broad in that it would theoretically permit the MPAA to restrict protected outputs. But since virtually no consumers own TVs with digital inputs that are competing with HDMI, using new release films to push a new standard wouldn’t do much good. And since when is the potential for customer confusion a reason to block DRM? HDCP, AACS, SecureCOM are all examples of DRM technologies that have arguably created some confusion, but in the long run they have been connected with innovative products that consumers now enjoy.

    Regarding the analog hole–in general, firms aren’t required to demonstrate harms prior to implementing copy protection. iTunes never had to prove that FairPlay was necessary to combat piracy. Why should MPAA be held to a higher standard simply because they want to transmit content via MVPDs?

  • Bob Schwartz

    SOC is not copy protection, it is transmission shutdown for all purposes, including viewing. MPAA’s desire for power to shut down or THREATEN to shut down interfaces or protection technologies is admitted, not theoretical. And if progress is the goal, since when should the market be satisfied with existing technologies rather than those on the way? DTCP over IP is a technology much discussed at this very moment and is already accepted in cable industry license agreements, and there are additional accepted technologies as well. You will likely see Ethernet ports on many future products.

  • Ryan Radia

    Jon, thanks for your comment. I share many of your reservations, and that’s why I don’t plan on ordering new-release films on my cable box until I know more about the MPAA’s plan. But I can decide for myself whether who simply want to watch movies, the more users will dealing with silly DRM is an acceptable price to pay for avoiding the hassle and expense of going to a movie theater.

    And I certainly wouldn’t put it past the cable companies do make an idiotic move. But companies make mistakes all the time, and they are punished by competitors. The more control the MPAA tries to exert over its customers, the more people will simply resort to illicit alternatives. As Adam pointed out, if the MPAA’s model ends up sucking, then let it crash and burn. No need for government to protect us from a product that we don’t have to buy.

  • Ryan Radia

    Peter, forgive me if my understanding of Title 17, 1201 is incorrect, but it is legal to circumvent DRM if you are engaging in a non-infringing activity such as fair use. The biggest problem is that it’s illegal to manufacture or distribute DRM circumvention technologies. Fortunately, however, plenty of foreign nations have far less restrictive copyright regimes than the U.S. That’s why it is trivial to download software like DVD Decrypter which is illegal to distribute in the US. I don’t know of any cases in which an individual has suffered civil penalties for merely circumventing DRM for personal, non-infringing use. Again, I may be wrong here–I know very little about the legal territory surrounding the Copyright Act.

    The anti-circumvention clause mainly hurts people who lack the technical skills to acquire illicit DRM-circumvention tools. But even with DMCA on the books, lots of Americans rip DVDs every day without adverse consequences. Rather than enforcing FCC regulations that might mitigate the problems created by the DMCA at the expense of content owners’ right to protect their intellectual works, we ought to repeal the anti-circumvention clause and let the market provide DRM-cracking tools for non-infringing uses.

  • ryanradia

    Mr. Schwartz–You correctly point out that the SOC waiver petition is fairly broad in that it would theoretically permit the MPAA to restrict protected outputs. But since virtually no consumers own TVs with digital inputs that are competing with HDMI, using new release films to push a new standard wouldn’t do much good. And since when is the potential for customer confusion a reason to block DRM? HDCP, AACS, SecureCOM are all examples of DRM technologies that have arguably created some confusion, but in the long run they have been connected with innovative products that consumers now enjoy.

    Regarding the analog hole–in general, firms aren’t required to demonstrate harms prior to implementing copy protection. iTunes never had to prove that FairPlay was necessary to combat piracy. Why should MPAA be held to a higher standard simply because they want to transmit content via MVPDs?

  • Bob Schwartz

    SOC is not copy protection, it is transmission shutdown for all purposes, including viewing. MPAA’s desire for power to shut down or THREATEN to shut down interfaces or protection technologies is admitted, not theoretical. And if progress is the goal, since when should the market be satisfied with existing technologies rather than those on the way? DTCP over IP is a technology much discussed at this very moment and is already accepted in cable industry license agreements, and there are additional accepted technologies as well. You will likely see Ethernet ports on many future products.

  • ryanradia

    Jon, thanks for your comment. I share many of your reservations, and that’s why I don’t plan on ordering new-release films on my cable box until I know more about the MPAA’s plan. But I can decide for myself whether who simply want to watch movies, the more users will dealing with silly DRM is an acceptable price to pay for avoiding the hassle and expense of going to a movie theater.

    And I certainly wouldn’t put it past the cable companies do make an idiotic move. But companies make mistakes all the time, and they are punished by competitors. The more control the MPAA tries to exert over its customers, the more people will simply resort to illicit alternatives. As Adam pointed out, if the MPAA’s model ends up sucking, then let it crash and burn. No need for government to protect us from a product that we don’t have to buy.

  • ryanradia

    Peter, forgive me if my understanding of Title 17, 1201 is incorrect, but it is legal to circumvent DRM if you are engaging in a non-infringing activity such as fair use. The biggest problem is that it’s illegal to manufacture or distribute DRM circumvention technologies. Fortunately, however, plenty of foreign nations have far less restrictive copyright regimes than the U.S. That’s why it is trivial to download software like DVD Decrypter which is illegal to distribute in the US. I don’t know of any cases in which an individual has suffered civil penalties for merely circumventing DRM for personal, non-infringing use. Again, I may be wrong here–I know very little about the legal territory surrounding the Copyright Act.

    The anti-circumvention clause mainly hurts people who lack the technical skills to acquire illicit DRM-circumvention tools. But even with DMCA on the books, lots of Americans rip DVDs every day without adverse consequences. Rather than enforcing FCC regulations that might mitigate the problems created by the DMCA at the expense of content owners’ right to protect their intellectual works, we ought to repeal the anti-circumvention clause and let the market provide DRM-cracking tools for non-infringing uses.

  • tt

    Who records off an HDMI output anyway? All HDCP does is to create a slew of devices that dont work, especially Blu-ray players that enforce HDCP and off brand tv's that have non HDCP compliant inputs that wont talk to your Blu-ray player, giving you a blank screen/black, blue, green, or purple, or some retarded message saying the tv doesn't support this. Yes, there are HDMI inputs that are NOT HDCP compliant. HDCP wont stop ripping directly off the Blu-ray disc either. The only way the movie studios could slow this down is by keeping the Blu-ray burners and blank media expensive.

  • bb

    Thanks to our old friend, the DMCA, such devices such as the ones Chadlee mentioned, are illegal. Macrovision corporation is even succeeding in making plain old CGMS/Macro removal boxes disappear from off the market, and that isn't even for high definition content. I saw one time an innovative Samsung two tray recorder available once, but due to DMCA, the device was too limited in what it could dub. Lack of interest in the device due to all the restrictions it had to obey killed the product. Having non compliant HDMI inputs isn't helping either. The DMCA doesn't allow a solution. Without a two tray Blu-ray recorder allowing at least a single fair use copy, the new format will have a hard time catching on fast enough. Hollywood, are you listening? If you dont allow or market such a device, then it will only appear in hidden form, via a computer drive, with no royalties going to you which you would have received from the sales of those two tray recorders.

  • tt

    Who records off an HDMI output anyway? All HDCP does is to create a slew of devices that dont work, especially Blu-ray players that enforce HDCP and off brand tv's that have non HDCP compliant inputs that wont talk to your Blu-ray player, giving you a blank screen/black, blue, green, or purple, or some retarded message saying the tv doesn't support this. Yes, there are HDMI inputs that are NOT HDCP compliant. HDCP wont stop ripping directly off the Blu-ray disc either. The only way the movie studios could slow this down is by keeping the Blu-ray burners and blank media expensive.

  • bb

    Thanks to our old friend, the DMCA, such devices such as the ones Chadlee mentioned, are illegal. Macrovision corporation is even succeeding in making plain old CGMS/Macro removal boxes disappear from off the market, and that isn't even for high definition content. I saw one time an innovative Samsung two tray recorder available once, but due to DMCA, the device was too limited in what it could dub. Lack of interest in the device due to all the restrictions it had to obey killed the product. Having non compliant HDMI inputs isn't helping either. The DMCA doesn't allow a solution. Without a two tray Blu-ray recorder allowing at least a single fair use copy, the new format will have a hard time catching on fast enough. Hollywood, are you listening? If you dont allow or market such a device, then it will only appear in hidden form, via a computer drive, with no royalties going to you which you would have received from the sales of those two tray recorders.

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  • jhn

    sorry to post in a dead thread.

    but the fcc's “drm ban” should be understood in the context of the dmca. bypassing SOC would be illegal for the user to do.

    i hardly see a proposal that criminalizes what modifications you may make your own TV as being pro-freedom.

  • Shirley Velazquez

    I completely support the access of in-home new released movies for PPV. Let me make the choice if I want to give up my option to watch movies in Hi-D. Let me make the decision if I want to purchase or accept equipment from my cable, Fios, or Sat company that will enable the use of New Released Movies for in-home use. I completely understand that this will not be a function that everyone will have access to because their TV is not meeting the requirements necessary to watch the movies. I say this in retort to people who have that frame of mind…Can you play PS3 games on your XBOX360 console? Yeah just what I thought…NO! See I choose to use an XBOX360 console because it's my personal choice. I have both options, the option to buy the PS3 or the option to buy an XBOX360. And seriously if I wanted I could have both. The the consumer make the choice to choose what they want to accept & use in their home. Personally I've had enough of the outragous prices that movie theaters charge to see one movie. While you're there you have to be extra early to insure you get a ticket (because new releases almost always sell out) and then you have to wait in horribly long line just to get into the theater viewing room. Oh did I mention you have to race to get a decent seat. While you're there you have to deal with other people…teenagers to be exact who when away from mom and dad act like they have absolutely no home training or regard for other people. Simply said, let the consumer make the choice to either buy the necessary equipment that will be needed to view these movies or to choose not too.

  • Shirley Velazquez

    I completely support the access of in-home new released movies for PPV. Let me make the choice if I want to give up my option to watch movies in Hi-D. Let me make the decision if I want to purchase or accept equipment from my cable, Fios, or Sat company that will enable the use of New Released Movies for in-home use. I completely understand that this will not be a function that everyone will have access to because their TV is not meeting the requirements necessary to watch the movies. I say this in retort to people who have that frame of mind…Can you play PS3 games on your XBOX360 console? Yeah just what I thought…NO! See I choose to use an XBOX360 console because it's my personal choice. I have both options, the option to buy the PS3 or the option to buy an XBOX360. And seriously if I wanted I could have both. The the consumer make the choice to choose what they want to accept & use in their home. Personally I've had enough of the outragous prices that movie theaters charge to see one movie. While you're there you have to be extra early to insure you get a ticket (because new releases almost always sell out) and then you have to wait in horribly long line just to get into the theater viewing room. Oh did I mention you have to race to get a decent seat. While you're there you have to deal with other people…teenagers to be exact who when away from mom and dad act like they have absolutely no home training or regard for other people. Simply said, let the consumer make the choice to either buy the necessary equipment that will be needed to view these movies or to choose not too.

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