In the Know - May 31, 2005

Most recent activity:

a bimonthly Public Knowledge update

Contents:

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

And now a word from our sponsors: The work PK is doing to protect
the free flow of information and sharing of knowledge is vital to
a free democracy. You can help in two ways. First, consider
becoming a member of PK. Check out our membership page (with the
cool premiums for joining) at:
https://members.publicknowledge.org/pk_membership
 Or, you can donate to PK, at:
http://www.publicknowledge.org/donate
 Both are quick and easy and well worth it.

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

Public Knowledge keeps you up to date
with RSS. We have a number of different feeds to add to your
favorite news aggregator:

Breaking News:
http://www.publicknowledge.org/news/breaking/feed.rdf
Open Access:
http://www.earlham.edu/~peters/fos/atom.xml
Press Releases:
http://www.publicknowledge.org/pressroom/releases/rssBody
Events:
http://www.publicknowledge.org/news/events/rssBody

To find out more about RSS and other feeds we offer, follow the link
below:
http://www.publicknowledge.org/about/feeds

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.