Because copyright law is concerned, as its name indicates, with the right to make copies, and because digital tools making copying copyrighted works with with 100% fidelity a lot easier, many people assume that digital content is more copyable. They couldn't be more wrong.

Although digital content is embodied in computer bits and bytes, and analog content exists either in material form (like words on paper or pigment on canvas) or as wave forms (like analog television and radio broadcasts). But content that is originally in either form can be easily translated into computer bits and bytes and perfectly duplicated by computers and other digital tools.

This is a fact that has escaped many policymakers. For example, in its broadcast-flag proceedings, the Federal Communications Commission assumed that "digital media, unlike its analog counterpart, is susceptible to piracy because an unlimited number of high quality copies can be made and distributed in violation of copyright laws."

The assumption made by the Commission in the passage quoted, supra, can be restated as follows: "Because digital content does not degrade as subsequent digital copies are made from digital copies of the original, this poses a special threat of large scale infringement."

The Commission's assumption is incorrect because the Commission overlooks an important technological consideration -- namely, that digital copies of analog content do not degrade in subsequent copying either. It is already the case that digitization of analog TV content also leads to high-quality digital copies that do not lead to degradation of quality as subsequent copies are made.

Moreover, high-quality conversion of digital to analog form and from analog content into digital form is trivial and can be done at low cost on a number of inexpensive consumer devices, as well as consumer-grade personal computers. What apparently misled the Commission here is that analog copies (e.g., analog VHS or audiotape copies) show degradation of quality in subsequent generations (i.e., copying from copies). As audiophiles long have known, this is true even if the analog copy is made from a digital source, such as a music CD; an analog audiotape recording of a music CD will result in degradation of quality and loss of information if subsequent copies are made from the audiotape.

Similarly, if someone receives digital cable content and records it through a connected VCR to a VHS tape (which may itself result in a high-quality copy; see next paragraph), and that tape, in turn, is used as a source for subsequent VHS tape-to-tape (analog) duplication, the quality of that content will degrade even though it is digital in origin.

While it is true that the conversion of analog content to digital form is theoretically accompanied by some loss of information, it is also true that the loss of any information in a high-quality conversion may be below any level that is perceptible to the ordinary viewer. In effect, with existing consumer electronics and personal-computer equipment, available to and useable by ordinary TV viewers and computer users, digital copying of analog-source content can be just as good, for all practical purposes, as digital copying of digital content.

What this discussion underscores is that, contrary to the NPRM's assumption (widely shared in some policy circles, but generally dismissed by independent technologists) it is not the source (digital or analog) or the original form of the content that makes it susceptible to digital infringement. Instead, it is the irreducible fact that digital devices of all sorts routinely and reliably make perfect copies of digital information, regardless of whether the original source of that information is digital or analog. The ubiquity of digital devices that do this is one of the outgrowths of the microcomputer revolution that began in the mid-1970s.