Section 10.6. Technology Mandates

10.6. Technology Mandates

The final layer of copyright's expansion, so far, is to technology mandates, where an entire technology is redesigned by government fiat in the name of copyright protection. Senator Ernest "Fritz" Hollings proposed one of these in 2002 that would have required every "digital media device," including the personal computer, to be redesigned to protect copyrighted content. While the "Fritz chip" never came to be, a smaller version has been foisted upon us in the form of the Broadcast Flag, an FCC rule set to take effect July 1, 2005.

With the government eager to get broadcasters off the valuable analog spectrum and onto digital transmissions, movies studios threatened that they wouldn't allow their content to be broadcast digitally in the clear, and warned that there would be no transition without their "high-value" content. The FCC didn't want to abandon the notion of unencrypted over-the-air television broadcasts, but it did want to give the studios their "protection," so it put the restrictions into the hardware. At the studios' recommendation, the FCC adopted a rule that adds a "flag" to these unencrypted broadcasts and then requires every receiver to watch for the flag and output flagged content only to "compliant" devices or in low resolution. Only devices that can implement DRM in a manner "robust against user modification" will be deemed compliant.

The Broadcast Flag rule enforces copyright on communications through the devices that receive them:

We conclude that in order for a flag-based content protection system to be effective, demodulators integrated within, or produced for use in, DTV reception devices ("Demodulator Products") must recognize and give effect to the ATSC flag pursuant to the compliance and robustness rules....This necessarily includes PC and IT products that are used for off-air DTV reception.

Instead of focusing on infringing uses of TV broadcasts (taping a show and selling copies, for example), this new kind of regulation puts the government in the business of redesigning products that might be used to infringe. In the process, it locks out many noninfringing uses, innovative technologies, competitive products, and open source developers. Building a device for time-shifting, pausing live TV, remotely scheduling recordings, and watching shows at double speed doesn't infringe copyright, but because the hardware/software to enable those capabilities isn't "robust," it is sacrificed to illusory copyright protection. Because these collateral harms are unavoidable, technology mandates should be a last resort, not a predictive strike against hypothetical danger.

The result of this rule is restriction on open source even greater than encryption would have been. Open source can implement encryption, but it can't offer "robust[ness] against user modification." Pre-flag, you could get an HDTV tuner card for a PC, pair it with open source software such as MythTV, and build your own digital video recorder to compete with TiVo. Post-flag, TiVo must use government-approved "robust" technologies to lock down its hardware and software, and open source will be shut out from access to the high-definition signals entirely.

Under the Broadcast Flag regime, market participants, bound up in the welter of licensing and preapproval requirements, can't offer the products users want. Where the market fails to provide fair-use-enabling technologies, the robustness rules prevent end users from correcting the problem. Absent technology mandates, users dissatisfied with commercial options can and do write their own software alternatives and often share them in open source. In a world of restricted, robust hardware, users are limited to the options the commercial market provides: the fully capable hardware HD tuner card can't be manufactured. Consumer-driven innovation is cut off when users can't tinker with existing technologies or develop new ones that challenge market leaders.