Over the last few years, I've had a great time playing around with digital cameras, digital camcorders, and the software that lets me edit, alter, and organize my images and movies. As the father of young children, my kids are the subject of most of my projects.
A few weeks ago, good ol' Dad thought it would be fun to take one of the kids' favorite cartoon videos, digitize a few segments, and then edit snippets from the cartoon together with family videos to have the kids and the cartoon characters interacting. I told my children what we were going to do, and they were eager to star in their first animated feature film.
After filming the kids in our backyard, we all came inside and gathered around the television to select our cartoon segments. I loaded the cartoon video—made by a major American movie studio—into my RCA VCR and hooked it up to my Canon digital camcorder. We cued the video to the appropriate spot and then pressed Play on the VCR and Record on the digital camcorder. I knew this would work because I had previously made DV copies of some of our old family videos on VHS. After starting the camcorder, our eyes turned to the television screen where we watched the images that were moving from the video to the digital tape—for about three seconds. That was when the camcorder shut down.
A note appeared on the camcorder's tiny LCD screen informing me that a built-in copyright protection system had been triggered. (Funny, but that "feature" wasn't mentioned in the owner's manual or the product's promotional materials.)
As a lawyer who routinely deals with intellectual property matters, I'd be remiss if I didn't jump in here with a quick defense of my actions. I owned the videotape in question. I wasn't copying the whole thing, only a few segments, and my use was going to be transformative, as select frames would augment my family's video, not take anything away from the studio's artistic work. While I think the world of my children, I also know that there's no commercial market for hack videos of my family goofing around with well-known cartoon characters. This new creation of mine was to be solely for my family's personal entertainment in our own home. I was reasonably confident that what I was planning to do would be a fair use of the copyright owner's intellectual property.
As it turns out, however, my video equipment had a mind of its own.
Flag Waving
While the precise mechanism behind copy protection schemes varies, the basic concept is the same: Ensure that products designed to play back audio or video, and the products designed to copy audio or video speak a common language. To do this, the products use a system of flags.
For example, as I recently discovered, analog video products, like the videotape I tried to copy, use something called the Analog Protection System (APS). It's an optional technology that videotape manufacturers can use, or not, as they see fit. In APS, a signal on the videotape lets the copyright owner set one of three flags: never copy, copy once, or no restrictions on copying. The never-copy and no-restrictions flags are self-explanatory. The copy-once flag is more interesting. A user can make a duplicate, but the flag on the copy will then be set to "never copy."
Why three flags and not just two? Apparently, someone in the flag-creation standards process was looking out for consumers. "Copy once" permits a purchaser to make more flexible uses of the product, including making backups.
The flag on my cartoon videotape, however, was set to "never copy." That seems to be the case, in fact, with most commercial videotapes released by the major motion picture studios. Reasonable uses, even uses that would be fair uses under any legal definition in copyright law, are expressly forbidden. The restriction is hard-wired.
The technology for getting two devices to communicate with each other using flags may be easy to understand, at least at the level I'm talking about now, but the confluence of cooperation that allows it all to work together is a little more difficult. Those are human issues, not technical ones.
Pledge Allegiance
A videotape manufacturer can make a product with flags, but the flags will do no good if the systems on which the videotape is played disregard them. The only thing that keeps the flags effective is an agreement by manufacturers of recording devices to look for them, read them, and then treat the flags as authoritative on what kind of copying is permissible.
Building a copyright protection system can be a long and tortuous process. In my case, the videotape manufacturers first had to agree on the flag they would use for their products. It's one thing to ask the makers of recording devices to screen for one standard, but something else entirely to expect that they'll screen for multiple proprietary flags from every major motion picture studio. Just as in any standards-setting process, agreeing on a copy protection scheme isn't easy.
Once the industry comes to terms on the kind of flag it wants to use with its copyrighted material, the next step is to convince the makers of recording devices to screen for the flags and implement a defined set of rules in response to them. Some makers of consumer recording devices have interests in film studios themselves, so convincing them to read and obey copyright flags might not be too difficult.
Increasingly though, mass copyright owners and their licensees (such as movie studios and record companies) aren't relying on carrots to entice equipment manufacturers to play nice with their copyright toys; they're using sticks, and even stones.
The most certain path to creating device-to-device allegiance is to convince Congress that consumer equipment manufactured or sold in the United States must be programmed to read and abide by the flags that copyright owners set. It wasn't always the case that content creators ran to Congress for protection. Increasingly, however, it's the place they turn first, because their efforts yield consistently predictable results. Congress overwhelmingly supports strong protection for copyright interests, even at the expense of the public's fair use.
If Congress doesn't work out though, or the legislative process appears to be taking too long to reach the desired result, the other alternative is to work with manufacturing bodies to convince them to support a new flag standard "voluntarily." I use the word loosely.
No one who wants copyright flags relies on the goodwill of hardware manufacturers. What you aren't likely to see when copyright owners and device manufacturers decide to cooperate is the back-alley threat behind it all. Content owners contend that if a flag is available on media containing copyrighted content and the manufacturer of a device designed to play back that media knowingly declines to adapt to the flag standard, then the device manufacturer has done something wrong. The content owner may threaten to sue the device manufacturer for contributory infringement if the content is ever pirated on a significant scale.
Forget for a moment that a contributory infringement cause of action may be only a marginally successful threat. The cost- benefit analysis that the manufacturer goes through is whether the cost of implementing the copy protection scheme is less than the cost of fighting the RIAA or MPAA in a drawn-out legal battle with an uncertain result. Consumers don't factor into the analysis at all. After all, who is more likely to sue you? A well-funded coalition of copyright owners complaining about billions of dollars of lost revenue due to piracy, or an under-funded consumer-interest group complaining that consumers have been denied fair use of intellectual property?
And when the flags are planted and the hardware is rigged, the much-vilified Digital Millennium Copyright Act (DMCA) comes into play. Before the DMCA, if you didn't like the rules that your own equipment was playing by, you could hack into your devices and make them bend to your will. The DMCA contains an anti-circumvention provision, however, that now makes that kind of behavior criminal. See how the pieces fit together?
Planting the Flag
As this article goes to press, the Federal Communications Commission (FCC) has issued a request for public comments on a proposed new rule that will allow television broadcasters to place copyright flags on the television programs that are carried over the airwaves (and mirrored over cable television and digital satellite systems). The FCC says that's all it wants to do: simply allow the networks to plant flags on the signals that come into our homes.
Unlike videotapes and CDs, however, content owners need permission from the FCC before they change the signals they send over the airwaves. Because broadcast spectrum is a limited resource, the government regulates it as a kind of public trust. For once, you would think, the public's interest in its rights of fair use will be considered.
I'm not so sure it's going to turn out that way though.
The reason the networks want to plant copyright flags in the public commons of the broadcast spectrum is due to rampant, uncontrolled digital copying of their copyrighted content. They call it piracy. You and I might call it time- shifting, or TiVo.
You can see where this is heading. Just like the conquistadors of yesteryear, you don't plant a flag in new territory unless you're staking a claim. A copyright flag in the middle of the public's broadcast spectrum is the same as planting a flag in the New World. It's a claim of right.
Once the flag is planted, you already know where this process is heading. The next move is to Congress, the courts, or private negotiations to ensure that manufacturers of recording devices watch for the flags and then recognize the exclusive claims of right the flags represent.
How will television recorders handle the flags? Will they prevent recording? Will they prevent skipping commercials during copyrighted broadcasts? Or will they be copy-once flags, designed to allow time-shifting but prevent swapping television programs over the Internet? All of these are possibilities. The last few years have shown, however, that the big media companies that so often drive policy on new technologies typically favor the most restrictive uses possible—like preventing a father from hacking together a scrapbook of film images for his family.
If you haven't already had your own surprise with a copyright protection system, you will sooner or later. New flags are being planted every day. Just last year, in fact, new legislation was introduced in Congress that's designed to require computer and hard drive manufacturers to watch for copyright flags and, if told not to copy something, refuse to write a file to your disk. The legislation failed to get out of committee, but you can reasonably expect it to be introduced again next year.
The real problem with a system of flagged media and flag-subservient technology is that the user's intent is completely disregarded. We're all assumed to be pirates. I could probably accept that if my devices truly had minds of their own. I'm pretty sure my hardware would listen to reason. But when they contain copyright flags, the minds in my devices are really the minds of the big media companies. And reason is out of the question.
Bret is an intellectual property and Internet attorney with Hancock, Rothert & Bunshoft. You can reach him at [email protected].
