Streaming, Sports, SOC, and Stuff.December 18, 2009
Although overshadowed by Joe Biden's big party for his Copyright buddies, the good folks at the House Judiciary Committee staged their own holiday party for Hollywood. Since “p2p” is now passe, the Judiciary's Secret Santa brought Hollywood a whole new villain to attack in the name of piracy, streaming media. (Hey everyone, remember when 'streaming media' was the good way to get content online because it could be protected unlike that evil peer-2-peer stuff so Hollywood pretended they loved streaming media so they could outlaw peer-2-peer? Boy, we were so young back then . . .) For entertainment, they invited Justin.TV CEO Michael Sibel to take part in a little Xmass Pageant where he got to play the Christian Martyr while ESPN, MLB, and Ultimate Fighting Championship (the folks who have rights to Las Vegas fights) got to play the lions.
To avoid the appearance favoring big business interest, the Committee also heard from Professor Christopher Yoo of the University of Pennsylvania Law School. Yoo's testimony and responses to the Committee questions recommended things familiar to folks who follow the field, and his scholarship on this subject. The DMCA doesn't go far enough and should be reopened. We need to change the rules on “notice and take down” to make ISPs more responsive. Anyone accused of “piracy” ought to be subject to extraordinary rendition, etc.
But what caught my particular attention was the report in Communications Daily (no link). According to Comm Daily, Professor Yoo figured that while he was sitting on Santa's knee (for an interview, not at the Judiciary Committee), he should put in a plug for Hollywood's current favorite Xmass present, SOC.
Allowing a waiver of the FCC's selectable output control rules, would also help curb the problem, Yoo said in the interview. He told the committee that the analog component video ports on set-top boxes are typically the first step in distributing unauthorized live programming online. Analog copy protection systems are “generally relatively easy to evade,” and digital content protection systems used in connection with HDMI and DVI ports are more effective, he said.
What makes this interesting is that whenever we at PK or the folks from the Consumers Electronic Association or anyone of the more than 2500 other indviduals, businesses, groups and trade associations opposed to granting the SOC waiver bring up this “slippery slope” argument, we get dismissed as whacko info-commies with all sorts of crazy conspiracy theories. The MPAA and the FCC staff keep repeating to us over and over that this is just a narrowly tailored waiver request so that stuff not on TV will get on TV earlier. No one would ever ask to extend it to something already on TV, and — of course — the good folks at the Media Bureau can't imagine that they would ever grant such a waiver.
Well, apparently we're not the only ones with whacky delusions about how powerful content providers might belly up to the bar to get a SOC waiver. And if the FCC accepts the current “piracy happens, so it makes sense it comes out of the analog outputs, so it makes sense for us to allow content providers to protect themselves by shutting off the analog outputs,” I'm not sure what legal precedent they are suddenly going to rely on to deny ESPN or MLB when they file based on grant of the MPAA's SOC waiver.
That's the problem with making law by waiver by granting waivers that impact the entire industry — even if you don't see the harm. No matter how sincerely you think you can stop, it's damn difficult to refuse the next waiver, that pushes the bar down further. And a few years from now, we're standing around in the place you promised we'd never be, sighing helplessly that, well, really, you can't do anything about it because you granted all those waivers to other people so how do you turn the next one down?
Here's a clue. You avoid getting there by not starting down the slope in the first place. Take a lesson from Chris Yoo's unsolicited advice to grant a more extensive SOC waiver, look where this is going, and stop before it gets too late.
About Harold Feld
Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” (Public Knowledge & Roosevelt Institute 2019) a guide on what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[...] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Circuit Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”