In the Know - May 31, 2005

a bimonthly Public Knowledge update

Contents:

• Revenge of the Myth
• Boucher Backed in Letter to Hill
• DTV Hearings Start
• Stay In the Know with PK’s RSS Feeds

Revenge of the Myth

Some lessons take a while to learn. Some myths take a while to be disproved.

On March 19, Reuters reported that the new Star Wars movie, “Revenge of the Sith,” had been leaked onto the file-sharing networks a few hours before the film was supposed to open across the country.

It didn’t take long for the Motion Picture Association of America (MPAA) to invoke the myth of the effect of file-sharing networks on movies. MPAA President Dan Glickman said: “There is no better example of how theft dims the magic of movies for everyone than this report today regarding BitTorrent providing users with illegal copies of Revenge of the Sith.” Noting that fans have been lined up for days to see the movie (who thinks there are people in the crowds who also know how to use BitTorrent?), Glickman said: “To preserve the quality of movies for fans like these and so many others, we must stop these Internet thieves from illegally trading valuable copyrighted materials online.”

That, of course, is the myth. The reality, as we know, came out a bit differently. As our own Mike Godwin discussed, the version of the movie on the P2P networks is a pre-release version of the movie, with time codes and watermarks. This means that (as is often the case with movies that appear on P2P networks), somebody associated with the movie studios supplied the film. The distractions are, as Mike reported in his blog, “not the sort of thing that would please any fan of the film.” It’s nothing like the real, surround-sound, movie-going experience.

BitTorrent aside, the numbers don’t lie, with the movie taking in a record four-day opening of $158.4 million. Among the other financial milestones: the opening day record, $50 million; best three-day debut, $124.1 million; record for worldwide international gross, $303.2 million. We could go on, but you get the idea.

Don’t think that even if the ticket sales are strong, that the downloading will affect later DVD sales. A quick sampling of the fan base online shows that with this dedicated a fan base, they will still buy the DVD, anticipating later director’s cuts, etc. However, none of that stopped the FBI from seizing the server of the Elite Torrents network that made the file available.

Here’s the story on the BitTorrent availability:
http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=8546118

Dan Glickman’s take at MPAA is here:
http://www.mpaa.org/MPAAPress/2005/2005_05_19.doc

Here’s the screen shot of the disruptive displays on the BitTorrent version:
http://www.boingboing.net/2005/05/19/star_wars_iii_online.html

The raid is here:
http://news.yahoo.com/s/ap/20050526/ap_en_mo/movie_downloading

One forum’s comments:
http://www.waxy.org/archive/2005/05/19/star_war.shtml

Boucher Bill Defended

Critics of a bill to create fair-use protections for technology got their facts wrong.

A letter from “The Copyright Assembly,” sent to Congress on May 11, criticized HR 1201, the bill sponsored by Reps. Rick Boucher (D-Va.), John Doolittle (R-Cal.) and Joe Barton (R-Tex.), the chairman of the House Energy and Commerce Committee.

Among the arguments in the letter were (1) that the legislation would “legalize hacking tools” and that (2) the bill misinterprets the 1984 U.S. Supreme Court Betamax decision. The letter was signed by a number of content organizations and companies, and three consumer electronics firms.

PK and others who are behind the Boucher-Doolittle bill believe otherwise, in part because the bill to which the Copyright Assembly was quoting was last year’s version of the bill, H.R. 107. This year’s bill is different in a couple of respects. First, while the “fair use” provisions of the bill would permit consumers, researchers, librarians, and others, to circumvent technological protection measures on digital content for the purpose of exercising their fair use rights, unlike H.R. 107, it would not legalize the manufacture, sale or other public provision of circumvention (or so-called “hacking”) tools. Second, the new bill would explicitly codify the Supreme Court’s Betamax decision using words straight from that decision — that except for cases of direct infringement, “it shall not be a violation of the Copyright Act to manufacture or distribute a hardware or software product capable of substantial noninfringing uses.”

We also find it odd that the Assembly members would object to codifying the Betamax language, when many of them have said they support the central holding of Betamax, even if their interpretation differs from ours. There is no reason not to codify the 21-year-old Court ruling, which has resulted in great technological innovation and consumer benefits.

Broadcast Flag Fight Enters DTV Deliberations

The broadcast flag issue made a brief appearance in a May 26 hearing of the House Telecom Subcommittee on the transition of TV broadcasting from analog to digital. The core issue is consideration of the conditions under which broadcasters will turn off their current, over-the-air analog signal and replace it with a digital one. For those getting TV over-the-air, which doesn’t cover cable and satellite services, the transition will mean that without a converter box or other technological change, their TV sets would no longer work.

This is an important issue because the spectrum currently occupied by broadcasters for their analog signal could be put to better use in creating a new and better means of providing broadband Internet access and for giving more spectrum to public safety.

However, as we’ve noted before, Hollywood hasn’t given up its fight to get the FCC the authority to impose content controls for digital television through the so-called “broadcast flag.” Simply, the “flag” is the software instruction sent as part of the digital TV signal that will tell consumer devices what can be copied or transmitted, and under what terms.

You may have read something in this space about a big court case we and our allies in the consumer and public-interest sector won when the U.S. Appeals Court for the District of Columbia threw out the FCC’s broadcast flag scheme, saying the agency exceeded its authority in ordering the scheme.

Those favoring the flag are now hunting around Congress looking for some legislation in which to place language giving the FCC the power the court said the agency didn’t have. One potential target is proposed DTV legislation. Rep. Joe Barton, (R-Tex) has offered a “discussion draft” of a DTV transition bill that does not include a flag provision.

At a hearing on draft DTV legislation May 26, Reps. Jay Inslee (D-Wash.), Ed Towns and Eliot Engel (both D-N.Y), raised the flag issue. They said, as does Hollywood, that without the flag, content providers will withhold their best programs from TV, and shift it to cable.

We disagree. Hollywood has threatened since 2002 to withhold content from broadcast TV without adequate protection. Viacom, owner of CBS, said in a Dec. 2002 filing with the FCC that it “believes that DTV [digital television] sales and broadband subscriptions have reached the ‘tipping point’ at which it [Viacom] can no longer afford to expose its content to piracy.”

Aside from the false threat of withholding programming, we think the flag is a bad idea because it would cost consumers hundreds of dollars to make certain all their TV sets, digital recorders and other devices would be flag-compatible. Any device which isn’t would have to be replaced. Most importantly, we don’t want the FCC to be the judge of which devices and software are acceptable and which aren’t.

Most of the hearing testimony dealt with whether consumer should have some sort of government support to make certain their analog sets will work to receive over-the-air signals after the proposed cut-off date of Dec. 31, 2008.

Here’s a PowerPoint presentation Mike Godwin gave which explains the anti-consumer effects of the broadcast flag:
http://www.publicknowledge.org/content/presentations/bflagpff.ppt

Briefly: The United States is 16th in the world in terms of broadband subscribers per 100 people, according to the latest statistics from the Organization for Economic Cooperation and Development (OECD). Here are the top 15 countries from the report, released May 24: Korea, Netherlands, Denmark, Iceland, Canada, Switzerland, Belgium, Japan, Finland, Norway, Sweden, U.S., France, United Kingdom, and Austria. Here’s the report:
http://www.oecd.org/document/60/0,2340,en_2649_37409_2496764_1_1_1_37409,00.html

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For the best in blogging: www.Godwinslaw.org, by PK Legal Director Mike Godwin. From ruminations on Tarzan, to plots against America, to experiments with BitTorrent, it’s all here.