Will Digital TV Trample Fair Use?

WASHINGTON -- The rise in digital television adds a new and urgent twist to the tug-of-war between digital copyright and customer use. While media industries are eager to nurture the digital market, they want to stop pirates early. But consumer advocates worry that copy protection measures won't ensure fair-use rights.

A 2006 deadline for transition to digital TV (DTV) is an ongoing topic of discussion between lawmakers and industry representatives. The Federal Communications Commission set that date for broadcasters to convert to high-definition digital signals.

Industry representatives and members of Congress seem to concur on one thing: This is a private-sector matter and Congress's role, if any, should be marginal. But consumer advocates might welcome legislative action that ensures customer rights.

Gunning for Pirates

DTV is the only major digital distribution method that does not have adequate copy protection, Peter Chernin, president of News Corporation, told a Congressional committee last week. He advocates a new technology known as the "broadcast flag" that imposes controls. The flag is a switch in the digital signal that tells a CD or DVD recorder to not record uncopyrighted material. While DTV processing equipment could detect the broadcast flag, people could still make fair-use copies of television shows, Chernin said. Protecting digital content has dominated debate, noted Fred Upton (R-Michigan), chair of the telecommunications and Internet subcommittee. The question of how to secure digital information from piracy must be answered before DTV can fully take off, Upton says.

Other subcommittee members expressed support for the industry's efforts to fight piracy, which media companies say robs them of billions of dollars every year. But Congress would prefer the industry determine the solution, noted Representative W.J. "Billy" Tauzin (R-Louisiana), as well as Upton. Tauzin and colleague John Dingell (D-Michigan) are sponsors of a much-debated broadband access bill that is intended to promote the technology by making it easier for the Baby Bells to enter what is now a restricted market.

Government should play a role in digital content protection regulation only if absolutely necessary, said Paul Liao, chief technology officer of Panasonic, and Larry Jacobson, president of RealNetworks.

Tech Traps Considered

The industry is crafting several technological solutions. For example, another challenge is how to plug the "analog hole," according to Richard Parsons, chief executive-designate of AOL. Currently, analog outputs from PC speakers, for example, can be easily recorded because analog data cannot be tracked. Parsons described a watermark encryption system, essentially an identifying "marking" system, intended to safeguard against such forms of piracy.

The industry is working on a solution that would keep the connection between a computer and the monitor digitally encrypted, Parsons said.

A third barrier to digital content protection is peer-to-peer file sharing, which, according to Liao, is currently "difficult to resolve." No technological solutions are pending.

Industry groups are preparing a report on digital content protection proposals for the telecommunications and Internet subcommittee, which is under the House Energy and Commerce committee. They expect to submit it on May 17, including a resolution on the broadcast flag, Liao says.

And that makes consumer advocates nervous--especially because consumers aren't represented in that group.

Balance Sought

Technologies like the broadcast flag and watermark encryption are a direct threat to consumer rights, warn Larry Blanford, chief executive officer of Philips Consumer Electronics, and Joe Kraus, cofounder of the new watchdog organization DigitalConsumer.org.

"We respect intellectual property, but also fair-use rights," Blanford told the subcommittee last week. "We come before you today with a call to action, one that is important if collectively we are to achieve a balance of rights in the emerging digital age."

Philips supports the broadcast flag, Blanford said, but wonders what happens after the flag is identified: To what extent will DTV be constrained inside the home?

Blanford also assailed the Broadcast Protection Discussion Group, which is a lobbying group composed of both media and electronics companies. With no consumer representation, decisions are made with "a few companies through private contractual relationships," Blanford said.

Kraus backed up Blanford's disapproval of the industry coalition. Not only is it a closed forum, but its provisions do not guarantee fair use, Kraus said.

"While fair-use rights may be 'baggage' to the entertainment industry, those rights are cherished by citizens," Kraus said. "And citizens expect Congress to act in their defense."