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Perspective: Hollywood raising a victory flag

CNET News.com's Washington watcher Declan McCullagh says the FCC is considering a copyright-protection plan for digital TV that, if adopted, could lead to increased government regulation of technology and reduced fair use rights.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read
WASHINGTON--Hollywood appears to be nearing a victory in its latest maneuvers in the copyright wars.

The Federal Communications Commission is weighing a plan to forcibly implant copy-protection technology in digital television receivers. Comments on the proposal are due Friday.

This is a worrisome plan that, if adopted by the FCC, could lead to increased government regulation of technology and reduced fair use rights. The idea is that digital TV transmissions will include a "broadcast flag" designating shows that may not be copied freely.

Here's the rub: To accomplish this, manufacturing TVs and tuners that do not recognize the broadcast flag must be verboten. Because no sane person would buy crippled hardware--probably at a higher cost--if given a choice, new laws or regulations will be necessary.

In August, the FCC voted unanimously to begin the regulation-drafting process. W. Kenneth Ferree, the head of the FCC's Media Bureau, said at the time that without such legal prohibitions, "near-perfect copies of digital content can be distributed in violation of copyright laws."

There are a few problems with this argument. First, near-perfect copies of digital content are already available on CDs and DVDs. Second, anyone with a pirate receiver that ignores the broadcast flag can distribute the program freely: It only takes one person making a file available on Kazaa for the file to leak permanently.

Third, depending on how the regulation is written, it could limit the public's ability to use the broadcasts in legitimate, non-infringing ways. Fourth, as computers and TVs continue to converge, this approach will inevitably lead to greater regulations imposed on PC companies and perhaps even operating system makers.

It's true that Hollywood and the TV studios have legitimate concerns about piracy, and widespread copyright infringement via the Internet appears to be growing. But it's hardly clear whether this is the wisest approach.

To let the FCC know what you think, go to their Web site to file comments for proceeding 02-230. Keep in mind that the FCC is under tremendous pressure from Democrats and Republicans in Congress to do this.

As of last week, only 158 comments have been submitted. What are you waiting for?

Armey update: Last month, I wrote a column bidding farewell to Rep. Dick Armey, R-Texas. I said that while I wouldn't miss the retiring House majority leader's strict social conservatism, Armey had become "one of the finest champions of privacy" in Washington.

Whoops. I spoke too soon.

Not long afterward, Armey shepherded the massive Department of Homeland Security bill to the House floor for a vote. In a disappointing move, Armey and the rest of the House Republican leadership surreptitiously inserted a proposal to expand Internet surveillance in it. Then they rushed it to the House floor for a vote, gave their colleagues just hours to read their 484-page creation, and then prevented anyone from amending the legislation once it came to a vote.

Rep. Ron Paul, R-Texas, said at the time: "The text of the bill has not been made readily available to most members, meaning this Congress is prepared to create a massive new federal agency without even knowing the details. This is a dangerous and irresponsible practice."

The new law, signed by President Bush last week, says police can conduct Internet surveillance without a court order in more situations than before. One of those circumstances involves "an ongoing attack" on a computer connected to a network.

Another change is that an Internet service provider now may disclose stored customer communications such as e-mail messages to any "governmental entity"--such as the Department of Homeland Security--if there's a serious crime in progress. Previously, ISPs could only turn such information over to law enforcement.

Both of those may be reasonable modifications to wiretapping law--though I'm never a fan of eavesdropping done without a judge's approval. And it's true that the House had already debated, and approved, a similar measure.

But by including those sections in the Homeland Security bill, Armey managed to get it enacted by the Senate without any debate. That's no way for someone who considers themselves a privacy advocate to behave.

Unsupported allegations: Did you catch Amnesty International's accusations last week, blaming U.S. technology firms for China's Internet censorship?

With a remarkably straight face, the group named Sun Microsystems, Cisco Systems, Microsoft, Nortel Networks and filtering software supplier Websense as suppliers of technology used in China's crackdown on Internet speech.

I don't recall Amnesty International slamming Microsoft, Sun, Nortel, and so on for selling software to the Justice Department that can be used for the Carnivore Internet surveillance. In this cases, at least, Amnesty appears to have realized that blame for wrongdoing should rest on the shoulders of the government.

I don't mean to say that corporations are never complicit, but it seems only reasonable that there should be a high threshold to meet--and that doesn't seem to be the case here. Amnesty has offered no proof beyond hand-waving allegations.

If China orders a few thousand copies of Windows, how is Microsoft to know where they'll be used? It can't, of course, and to suggest otherwise is silly. Amnesty should know better, and focus its otherwise good work on the true culprits: The Chinese government.