An analog armageddon?

Hollywood movies are replete with bad guys nefariously plotting to control the world, but these days, music and movie industry associations are looking awfully like power-hungry villains themselves as they attempt to assert control over the devices that play and record their content. Proposals currently making the rounds on Capitol Hill aim to ban a whole class of devices–from microphones to video cameras–giving content creators unprecedented control over technological development.

For years, copyright holders, led by the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), have nagged the federal government to require playback hardware manufacturers to load their devices with broadcast flag readers that would prevent unauthorized transmission and copying of digital media files, ostensibly preventing digital piracy.

This would give the content industries near-total power to decide the who, what, and where of content playback, loading hardware companies with a host of onerous restrictions and consumers with few options for making backup copies for personal use. Hardware makers, unsurprisingly, have fought such restrictions as unduly restrictive and anti-consumer. Still, the Federal Communications Commission (FCC) recently attempted to implement a set of broadcast flag guidelines, but these were struck down by a federal appeals court which determined that the regulations exceeded FCC authority.

Yet despite the court’s ruling, the idea has returned. Some in Congress are thinking of specifically giving the FCC authority to institute broadcast flag rules. These proposals would take the restrictions a step further by banning the sale or importation of devices that convert digital recordings to analog, stripping them of the broadcast flag and opening them up to redistribution outside Hollywood’s clutches. Industry insiders call this “plugging the analog hole”–but a better phrase would be “Analog Armageddon,” as the law could effectively ban all analog recording technology.

Broadcast flag regulations have always threatened to give Hollywood unprecedented control over digital playback devices. But this new proposal, in addition to imposing restrictions on computers and DVD players, would potentially outlaw everything from the audio cassette recorders used by journalists to the 35mm cameras used to film most Hollywood productions, not to mention a whole host of professional and consumer devices that use analog recording technology. Each of these devices could be used to make copies unhindered by flag restrictions. Hollywood, it seems, is so gung-ho about protecting its copyrights that it would pester the government to ban some of its own equipment.

More generally, the flag regulations would give the MPAA what amounts to veto power over digital playback devices–effectively putting the entertainment industry at the helm of hardware development. No other industry gets to use Congressional muscle to exert this kind of control over another industry’s development process, and there is no reason why this should be an exception.

Further, the broadcast flag could produce a chilling effect on technological development, causing hardware companies to avoid investing in devices that could potentially run afoul of broadcast flag guidelines. Research and development costs for new technologies are no small burden, and few companies are willing to expend their time and money on products that another industry could easily veto.

“Analog hole” proposals also have serious consequences for consumers, as they would essentially turn many media purchases into limited rights leases, with Hollywood guarding the gates of playback. The flag allows copyright holders to program usage restrictions into any given program and could conceivably allow them to revoke such rights as well.

Such a law would also be costly for taxpayers, since it would allow the entertainment industry to foist much of the cost of copyright enforcement on to the taxpayer-funded FCC. Retailers have to pay for their security in the form of theft prevention technologies and private security guards. Hollywood studios, on the other hand, seem to think their enforcement costs should be shouldered by taxpayers. Broadcast flag legislation would turn the FCC into the Federal Copyright Cops.

RIAA President Mitch Bainwol recently claimed that the issue at stake isn’t technological mandates but copyright protection, saying that he was “agnostic on the cure” as long as the issues are addressed. But if this were true, he would be seeking real solutions for enforcing copyrights rather than asking, rather than bullying Congress to grant Hollywood far-reaching authority over another industry. The government-enforced technological control that the RIAA and MPAA seek may be couched in the language of protecting copyright, but it is as insidious as any plot dreamed up by movie scriptwriters.

Peter Suderman is assistant editorial director at the Competitive Enterprise Institute.

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