Will Entertainment Industry Send Technological Innovation the Way of Dodo Bird?
Ever heard of any of the following: the DVD X-Copy (DVD archiving program)? Advanced eBook Processor
(Adobe e-book decrypter)? Replay TV 4000 (personal Video Recorder)? Streambox VCR (Recorder for Real Audio)? Napster (of course you have)?
What do they all have in common? They all were promising new technological innovations “that Hollywood and the record companies hunted down, hobbled, or killed…in infancy or adolescence to ensure they wouldn’t grow up to threaten the status quo” according to the Electronic Frontier Foundation’s Endangered Gizmos campaign.
Perhaps you’re saying right about now: “I haven’t heard of any of these products…so what does this have to do with me and why is it of any importance?” Well, you have heard of the iPod and TiVO, right? Perhaps, you’ve even found one of them or both almost indispensable to your personal life. Now, imagine you’d never seen one or even heard of one because they never even existed.
The EFF’s Endangered Gizmos campaign seeks to throw a monkey wrench into:
the entertainment industry’s plan to control the next generation of TiVos and iPods. [The industry’s] arsenal includes government-backed technology mandates, lawsuits, international treaties, and behind-the-scenes negotiations in obscure technology standards groups. The result is a world in which only industry-approved devices and technologies survive in the marketplace.
This is bad news for innovation and free competition, but it also threatens a wide range of activities the entertainment conglomerates have no use for — from [copying] TV or movie clips for a classroom presentation, to creating your own “Daily Show”-style video to make a political statement, to simply copying an MP3 file so you can take your music with you.
Other entertainment devices under threat of extinction or radical alteration to suit the entertainment industry’s dictates include: the Morpheus filesharing system, firewire drives, open WiFi access points, CD burner, Total Recorder (Virtual soundcards) and the HD 3000 (HDTV Tuner card). The industry has proposed legislation that would foreclose the development of these technological innovations.
Now, let me point out a few entertainment products which never would’ve seen the light of day if copyright attorneys representing the entertainment industry had had their way: the VCR, garage door opener and refurbished computer equipment (like toner cartridges).
If they succeed, we would not only lose the products themselves, we’d also lose whatever technological innovations would’ve derived from them. You have to remember that technology doesn’t develop in a vacuum. Rather it develops in the context of innovations that’ve preceded it. When you abruptly stifle such development you impoverish society by depriving it of the entrepreneurship opportunities and innovation that would’ve ensued.
MGM v. Grokster
EFF developed the Endangered Gizmos project to highlight an important case which came up recently for argument before the Supreme Court: MGM v. Grokster (As Piracy Battle Nears Supreme Court, the Messages Grow Manic). EFF represents one of the defendants in the case. Basically, the entertainment industry seeks to force filesharing networks like Grokster and Streamcast to police their own users to ensure they are not violating copyright law through illegal downloading. Even though the courts have not found the filesharing networks guilty as long as they merely point downloaders to each other’s computers, now the industry seeks to lay the responsibility for individual users’ so-called breaches of copyright at the doorstep of the networks. While I am not a copyright attorney, this seems a pretty big stretch and I find it doubtful that the Court will buy it.
FCC’s ‘Broadcast Flag’ Mandate
In another case of media conglomerates using the government to do their dirty work, Public Knowledge has brought a case against the FCC for introducing a new rule forcing TV manufacturers to equip every new set with the capacity to recognize “broadcast flags” (Federal Effort to Head Off TV Piracy Is Challenged) The flags serve the same function as the digital rights management (DRM) encoding system used by Microsoft and Apple to prevent their customers from sharing widely the music files they buy from their sites.
What makes the FCC ruling so unusual is that it is one of the first instances in which the Commission specified how a product should be made and what technology it should contain. It has done such things based on Congressional mandate (closed captioning). But not of its own volition. The Public Knowledge brief suggests that the FCC can only take such action with a Congressional mandate. Essentially, the government is forcing manufacturers to make their equipment the government’s way. This not only stifles innovation it puts government squarely in a place it doesn’t belong: in the engineering lab and on the factory floor. Who needs or wants the feds telling us what to make and how to make it? Stalin and Mao tried that. Remember those blessed Five-Year Plans? Remember the utter national disasters that ensued? Is that even remotely what we want from our own government?
Another argument against the FCC’s ruling is that it has proposed (at the instigation of the entertainment industry) a fix for a problem that does not exist. The industry worries that at date uncertain people will be able to copy, download and share TV programs as easily as they can now download music. Currently, it is quite difficult, time-consuming and labor-intensive to do this. When HDTV takes hold, it will become even more so as the file sizes for TV shows will grow exponentially. So the question is: why do this sweetheart deal for the industry when the problem barely exists?
UPDATE: I’m pleased to report that in a hearing yesterday, a Federal Appeals court judge said the FCC overstepped its authority in mandating broadcast flags for all televisions sold in the U.S. However, this was not the formal ruling which should come in a few months time.
I congratulate EFF and Public Knowledge for taking these important issues on and hope they win.