Deeplinks Blogs related to Digital Video
YouTube Responds to McCain Campaign's Letter
Legal Analysis by Michael KwunYesterday, we wrote about the McCain-Palin campaign's letter to YouTube, highlighting how DMCA takedown notices can make online speech disappear from the Internet, even when the claims of infringement plainly lack any merit.
Today, we bring you YouTube's response. YouTube's response points out, much like we did yesterday, that the McCain-Palin campaign's proposed solution (human review of DMCA takedown notices targeting videos posted by political candidates and campaigns) favors speech from one particular class of users. YouTube says that it "tri[es] to be careful not to favor one category of content on [its] site over others, and to treat all of [its] users fairly, regardless of whether they are an individual, a large corporation, or a candidate for public office."
At the end of the day, we agree with YouTube that "[t]he real problem here is individuals and entities that abuse the DMCA takedown process." And we commend YouTube for taking action in some cases where it has identified false takedown notices.
Nonetheless, although YouTube may not be the source of the problem, that doesn't mean it can't do more to be part of the solution. YouTube notes that it can't always be certain whether a video qualifies as fair use, and that it can't know whether the poster has a license to the content. That's all true.
But just because YouTube can't always identify sham takedown notices doesn't mean it can't sometimes know the answer. Using a short excerpt from a news broadcast and commenting on it in a political commercial is clearly fair use. And there are many other examples of clear fair uses, as well.
We'd love to see YouTube take further action, so that takedown notices directed at clearly non-infringing videos can't be used to silence speech. As we said yesterday, stay tuned for more on this topic from us soon.
McCain Campaign Feels DMCA Sting
Legal Analysis by Fred von LohmannYesterday, the McCain-Palin campaign sent a letter to YouTube describing the troubles it has been having with bogus DMCA takedowns targeting its videos:
[O]verreaching copyright claims have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech. Numerous times during the course of the campaign, our advertisements or web videos have been the subject of DMCA takedown notices regarding uses that are clearly privileged under the fair use doctrine. The uses at issue have been the inclusion of fewer than ten seconds of footage from news broadcasts in campaign ads or videos, as a basis for commentary on the issues presented in the news reports, or on the reports themselves. These are paradigmatic examples of fair use...
It's heartening to see a presidential campaign recognize the importance of fair use and "remix culture" (the Obama-Biden campaign has also been the victim of frivolous takedowns from big media companies, so this is a bipartisan problem). EFF, the ACLU, Harvard's Citizen's Media Law Project, and Stanford's Fair Use Project have been making the same point for several years now. EFF has also been providing direct legal assistance to victims of DMCA abuse.
Unfortunately, the solution proposed by the McCain campaign addresses only the tip of the iceberg:
[W]e believe that it would consume few resources--and provide enormous benefit--for YouTube to commit to a full legal review of all takedown notices on videos posted from accounts controlled by (at least) political candidates and campaigns.
The obvious problem with this solution? It assumes that YouTube should prioritize the campaigns' fair use rights, rather than those of the rest of us. That seems precisely backwards, since the most exciting new possibilities on YouTube are for amateur political expression by the voters themselves. After all, the campaigns have no trouble getting the same ads out on television and radio, options not available to most YouTubers.
Let's start by identifying the real villains here: the major news media outlets. They are the ones censoring these political ads, based on the use of a few seconds of their footage. The networks need to back off and give fair use a wide berth. So let's start by shaming the bad guys here. In addition, lawsuits might help. Under the DMCA, both the campaigns themselves and YouTube have standing to sue those who send clearly bogus takedown notices. (EFF has represented video creators in a number of these cases, including against Viacom.)
There are other possible solutions, as well. Stay tuned for our specific ideas on what YouTube can do to protect fair use while staying within the bounds of its DMCA safe harbor protection (hint: as the McCain-Palin letter points out, you don't need a safe harbor if the video isn't infringing, something that human review by YouTube should be able to determine).
UPDATE: The McCain-Palin campaign has identified the news outlets behind the YouTube removals: CBS, Fox News, and the Christian Broadcasting Network. We noted above that NBC has targeted an Obama-Biden video for removal. That's four news entities that should know better.
Why Hollywood Hates RealDVD
Legal Analysis by Fred von LohmannWhy does Hollywood hate RealDVD so much? Here's a hint: it has nothing to do with piracy and everything to do with controlling innovation.
Earlier this week, a district court in San Francisco extended the temporary restraining order (TRO) blocking RealNetworks' distribution of its RealDVD software, at least until a full-dress preliminary injunction hearing can be held sometime in late November. Although reporters have done a good job reporting on the hearing, they have not answered a more basic question: why does Hollywood care so much about RealDVD in the first place?
It's not about piracy. After all, those who want to copy DVDs have plenty of free, widely available, easy-to-use software to choose from (e.g., Handbrake, DVD Shrink, Mac The Ripper). And those who want to skip the tedium of DVD ripping altogether can easily download movies from unauthorized sources like The Pirate Bay. In short, Hollywood can't possibly believe that the $30, DRM-hobbled RealDVD software represents a piracy threat in an environment rife with easier options.
So why unleash all the expensive lawyers to kill RealDVD? Answer: to send a message about what happens to those who innovate without permission in a post-DMCA world.
As we've said for years, DRM systems like the Content Scramble System (CSS) used on DVDs are not principally about preventing piracy. Rather, DRM is the legal "hook" that forces technology companies to enter into license agreements before they build products that can play movies (Hollywood lawyers candidly admit this "hook IP" strategy). Those license agreements, in turn, define what the devices can and can't do, thereby protecting Hollywood business models from disruptive innovation.
This arrangement reverses the previous innovation status quo. Where non-DRM'd content (e.g., books, broadcast TV, the CD) is concerned, innovators do not have to ask permission before building new products that can copy and play copyrighted works (e.g., the photocopier, the VCR, the iPod). But where DRM'd content like DVDs are concerned, Hollywood intended the DMCA's anti-circumvention provisions to slam the door on that kind of disruptive innovation. After the DMCA, technology vendors would have to ask permission, sign licenses, and make concessions, if they were going to build things to play DRM'd Hollywood movies.
So it's not that Hollywood implacably hates personal use format-shifting and space-shifting -- rather, Hollywood wants to make sure those new features happen on Hollywood's terms ("pay us again"), on Hollywood's timetable ("later"), and only after valuable concessions have been wrung from technology companies ("watermark detection, compliance & robustness requirements, down-rezzing").
That's why RealDVD is such a threat. By reading the existing CSS license carefully, Real (and Kaleidescape before it) found a way to create a new product category without first getting permission from (and paying obeisance to) the Hollywood studios. Real's defection represents a threat to several schemes that Hollywood has been working on for throttling DVD innovation over the next several years. For example:
- Managed Copy: Hollywood has been negotiating for years with technology companies over "Managed Copy," a mechanism that will allow limited copying of DVD and Bluray discs onto PCs and portable devices. "Managed Copy" has been promised for years, yet has not materialized, thanks to power struggles inside the organizations that run the relevant DRM licenses (DVD-CCA for DVDs, AACS-LA for Bluray). In the course of these negotiations, Hollywood has managed to wrest several important concessions from technology vendors (including requiring that computers do watermark detection to spot pirated copies when reading data from Bluray discs, and imposing DRM on resulting copies). If those technology companies can build things like RealDVD and Kaleidescape under the terms of the existing contract, then the prospect of more negotiations and concessions for Managed Copy suddenly seems much less appealing.
- Digital Copy: Hollywood has begun selling DVDs that come with a second disc that permits the making of a copy on a PC. The catch? You have to pay extra for the right to make this personal use copy -- in other words, Hollywood is stealing your fair use rights and selling them back to you piecemeal.
- Internet Download Services: you already bought it on DVD, but now Hollywood wants you to buy it a second time from iTunes, Amazon, or MovieLink if you want to watch the same movie on a PC or iPod.
So that's the real story here. It's not about piracy. It's about Real defecting from the DRM licensing cartel, building what consumers want now instead of negotiating endlessly for a spot in Hollywood's next Five Year Plan for the DVD format.
Why MPAA Should Lose Against RealDVD
Legal Analysis by Fred von LohmannEarlier this week, the motion picture industry sued RealNetworks over its RealDVD software. The MPAA companies also asked for an immediate temporary restraining order (TRO) to block Real from distributing the product, which allows consumers to copy their DVDs onto their personal computers for later playback.
There are many obvious reasons why this is a short-sighted and futile gesture by the studios (as Jon Healey of the L.A. Times points out), but let's focus just on the fatal flaws in their legal theory. (We've posted the key legal documents, including TRO briefs, for those who want to read them and form their own opinions.)
In order to obtain a TRO or preliminary injunction, the studios have to demonstrate both (1) a likelihood of prevailing on the merits of the case and (2) irreparable harm if they don't get an immediate order blocking distribution of RealDVD. They fail on both counts.
Irreparable Harm ... Not
Let's take "irreparable harm" first. The studios claim that if consumers get the power to copy DVDs (gasp!), it will be a catastrophe for Hollywood's DVD, VOD, and digital download businesses. I'm not sure what alternate version of reality the MPAA is living in, but consumers have been able to copy DVDs for a long time, thanks to free, widely available DVD rippers like Handbrake, DVD Shrink, and MacTheRipper. And, as we pointed out back in 2006 in a filing with the Copyright Office, this isn't a fringe activity only for hacker super-users. DVD rippers are in wide circulation and have been routinely reviewed in the mainstream press (like the Fort Worth Star-Telegram, PC World and MacWorld, not to mention Lifehacker). In fact, most of us were wondering how RealDVD was going to compete with Handbrake, particularly since RealDVD costs more ($30 v. free) and does less (Windows only v. multi-platform, DRM restrictions v. no restrictions).
So if DVD copiers are already in the hands of millions of consumers, how does the introduction of RealDVD threaten "irreparable harm" to Hollywood? Answer: it doesn't.
Hollywood also argues that "Real's (false) prophesies of legality have the likely potential of altering consumer attitudes towards DVD-copying and, accordingly, consumer behavior." That's absurd. If the distribution of RealDVD does not threaten irreparable harm (because it's just one more DVD ripper), then Real's public statements about their legal position (all protected by the First Amendment) certainly can't tip the balance. After all, the MPAA's litigation, legislation, and public education efforts have already reached far more consumers than Real could ever hope to. Plus, there are those FBI warnings in every DVD, as the studios tout in the first line of their TRO brief: "Anyone who has ever watched a popular movie on a DVD knows from the opening frames that copying the content of the DVD is strictly prohibited."
[Aside for law nerds: The studios also make a half-hearted claim that they are entitled to a presumption of irreparable harm because that's the norm in intellectual property cases. That argument died two years ago, with the Supreme Court's 2006 ruling in eBay v. MercExchange rejecting those "presumptions." In fact, these same movie studios lost this same argument in front of the district court judge in MGM v. Grokster last year. See 518 F.Supp.2d 1197, 1212-14 (C.D. Cal. 2007).]
DMCA Violation ... Not
Nor are the studios likely to prevail on the merits of their DMCA claim. According to the studios, RealDVD "circumvents" the CSS encryption system that protects DVDs. The problem with that argument is that Real has a license from DVD-CCA to decrypt DVD movies, and the DVD-CCA v. Kaleidescape case tells us that the license does not prohibit making bit-for-bit digital copies of DVDs, so long as you keep them secure and play them in a software player that complies with the license requirements. This brings us to the heart of the studio's argument:
Although Real has authorization under the CSS license to use the decryption keys and licensed technology to play content on DVDs, Real does not have authority to use that technology to make a permanent, playable copy of DVD content. By using authorized technology for an unauthorized purpose, Real "avoid[s]," "bypass[es]" and "impair[s]" those very measures. In short, RealDVD circumvents CSS's access- and copy-control protections.
The trouble with this line of argument is that two courts have ruled that "using authorized technology for an unauthorized purpose" does not violate the DMCA. According to those courts, if someone gives you a password, and then you use it in an unauthorized way, there's no DMCA "circumvention." Here, the "password" would be the CSS keys to decrypt DVDs, which Real received as a DVD-CCA licensee. So using those keys for an "unauthorized purpose" is no DMCA violation. And, since the studios are seeking their TRO based solely on the DMCA, that should be the end of that.
[Aside for copyright nerds: if you believe the MPAA that the DVD-CCA license does not authorize "copying," but only "playback" of DVDs, then what about all the temporary RAM copies that are made by all licensed DVD players? The MPAA just got done arguing strenuously in the Cablevision case that all those RAM copies count as copies, no matter how short-lived. Have they changed their minds and embraced the Second Circuit's contrary ruling?]
The court should deny the TRO (and any subsequent preliminary injunction). Let the MPAA try to prove its case in court. In the meantime, let Real distribute RealDVD into the crowded market of PC-based DVD rippers and hard-drive based DVD jukeboxes. After all, Handbrake is more likely to kill off RealDVD than Hollywood is.
The Latest on DVD Copying
Commentary by Fred von LohmannReal Networks has received quite a bit of attention thanks to the launch of its Real DVD software, designed to allow people to copy their DVDs to their hard drives for later playback. (Why is that a big deal? Because Hollywood DVDs are encrypted with CSS, and if you decrypt them without permission, the motion picture industry's lawyers may come a-callin'.)
Today there are two approaches for those who want to make and distribute DVD copying tools. First, you can just build a DVD decryptor, the U.S. court cases that have held that the distribution of those products violates the DMCA notwithstanding. Despite those legal precedents, there is no shortage of free, easy-to-use tools that take this approach, including Handbrake (Win/Mac/Lin), DVD Shrink (Win), or MacTheRipper (Mac). (The motion picture studios argue that anyone who uses these tools violates the DMCA, as well.)
The other approach is the one pioneered by Kaleidescape: sign licenses with the DVD-CCA (the cartel that controls the CSS encryption technology), build a licensed player, make bit-for-bit copies of encrypted files from DVD (aka "DVD archiving" as opposed to "DVD ripping"), and play back those files in the licensed player. DVD-CCA subsequently sued Kaleidescape claiming that the license requires that the original DVD be physically present in the device upon playback, but Kaleidescape prevailed. The case is currently on appeal (DVD-CCA filed its opening brief in December 2007).
Real has chosen to follow in Kaleidescape's footsteps. Apparently, it is not alone -- CEPro has an informative article summarizing all the DVD media server solutions for the home theater market that were announced at the recent CEDIA conference. Looks like Hollywood's iron-fisted grip of DVDs is slipping a little every day.
UPDATE: CEPro has followed up with an article that gathers all the FAQ answers offered by makers of DVD copying/server solutions (Kaleidescape, Real, Escient, ReQuest, Xperinet, Axonix, Fuze Media) to the question "how is this legal?"
Required Reading for "User-Generated Content" Sites: Io Group v. Veoh
Legal Analysis by Fred von LohmannIn an important ruling handed down yesterday, a federal district court threw out a copyright infringement suit brought by adult video producer Io Group against Veoh, concluding that the video hosting site qualifies for the DMCA safe harbor. The ruling should be required reading for the executives of every "Web 2.0" business that relies on "user-generated content."
Veoh, like YouTube, is a streaming video site that hosts videos uploaded by users. Io Group sued Veoh in 2006 after finding clips from 10 of its copyrighted adult films on the Veoh site. So far, this is a familiar story -- user-generated content site gets sued by copyright owner for naughty uploading habits of users (see, e.g., lawsuits against MySpace, iMeem, YouTube, Redlasso, Hi5, Multiply, Stage6, MP3tunes, Scribd, Usenet.com, Bolt, and Grouper). But this is the first case to get to a final ruling, and it's a total victory for Veoh.
The key to Veoh's victory was its scrupulous attention to the DMCA safe harbors. Veoh responded to compliant DMCA takedown notices on a same-day basis, it notified users of its policies against copyright infringement, it registered a Copyright Agent with the Copyright Office, it terminated users who were repeat infringers and blocked new registrations from the same email addresses, it used hashes to stop the same infringing videos from being uploaded by other users. These efforts actually go beyond the requirements of the DMCA safe harbors, and made it clear that Veoh was serious about responding to copyright infringement notices.
This ruling provides valuable guidance to companies that host video, audio, and text files on behalf of users (see, e.g., Muxtape). Too many "Web 2.0" start-ups are careless about the requirements of the DMCA safe harbors. They don't register a Copyright Agent, or keep good records of their responses to takedown notices, or have a demonstrable policy of terminating "repeat infringers." Sure, doing this "compliance" work costs time and money. But, as the Veoh decision demonstrates, the payoff can be enormous, since copyright is almost certainly the biggest liability risk these sites face.
The ruling also debunks some of the favorite anti-safe harbor arguments bandied about by entertainment industry lawyers (and gives a boost to YouTube in its fight with Viacom). The court specifically rejects the argument that "transcoding" content to facilitate access disqualifies a service provider from the safe harbor (Veoh automatically transcodes uploaded videos into Flash). The ruling also joins other courts in concluding that, even if Veoh made money from advertising around the videos, it still qualifies for the safe harbor because it lacks the "right and ability to control" (see Section 512(c)(1)(B) of the Copyright Act) the infringing activities of its users.
While there are still plenty of unexplored legal questions surrounding the DMCA safe harbors, this ruling provides important practical guidance for companies that host user-uploaded content.
EFF Opposes MPAA's Selectable Output Control FCC Petition
Deeplink by Michael KwunPublic Knowledge, joined by EFF as well as the Consumer Federation of America, the Digital Freedom Campaign, the Media Access Project, the New America Foundation and U.S. PIRG, yesterday filed an opposition [PDF] to the MPAA's FCC petition seeking a waiver of the ban against selectable output controls (SOC) (we have an explanation of what a "selectable output control" is on our Digital Video issue page).
EFF has long opposed selectable output controls. The basic premise of those who back SOC is that content owners should be able to decide not just who can watch their content, but how they can watch it. You want to watch my new movie on that digital TV you bought a few years ago? No, sorry, I don't like your TV (perhaps because I'm afraid of the analog component inputs it uses). You want to space-shift using your Slingbox (which lacks DRM-enabling controls on its outputs)? Oh, no, I don't think that's a good idea. You were hoping to TiVo that show that's on this afternoon so that you can watch it when you get home from work? Hm, not unless you upgrade to a new TiVo, because I won't allow the signal to make it to TiVos that don't have digital outputs. You want to record that program so that you can make a fair use of an excerpt? Dear dear, we can't have that.
Seems kind of crazy, no? That's what the FCC thought, too, which was why the agency forbade use of SOC when it last addressed this issue, in 2003. The FCC concluded that multichannel video programming distributors (MVPDs - companies like cable television providers) can't "attach or embed data or information with commercial audiovisual content . . . so as to prevent its output through any analog or digital output authorized or permitted under license, law or regulation governing such covered product."
Well, the MPAA is taking another crack at the issue, asking the FCC to grant it a permanent waiver from the SOC ban, to allow it to apply SOC to recently released movies that are being distributed to homes via video on demand. The MPAA's goal here seems clear: Increase its members' control over how you choose to watch their material. As the opposition we joined puts it, "Granting the waiver would put MPAA member companies on the path to controlling what types of connections will be used by all U.S. consumers, and to profiting from that control." The opposition offers this example of what this could mean:
A model of how this would work can already be seen. Sony Pictures recently announced it will be offering its new movie, Hancock, to some Sony television owners equipped with Sony’s Internet media connection before release on DVD and other home media. However, the movie will only be available to those who own the Sony box, and will only flow over Sony’s proprietary video connection to a Sony TV. This model could easily be extended to MVPDs by leveraging SOC controls - if the Commission grants this waiver.
Right now, your consumer electronics are designed by the consumer electronics industry, which reacts to consumer market demand in choosing how to innovate. That consumer-focused approach makes sense. But if the MPAA has its way, however, we'll be well on the way to a world in which every new feature to every home theater product has to be pre-approved by the content industry.
Watching the Detectors
Deeplink by Danny O'BrienIn the absence of NBC or Microsoft coming clean about what they've done - what flags NBC sent, and what flags Microsoft obeys, we've been doing some detective work of our own -- and we'd like your help.
NBC have already said that their activation of their copy-control system was a "mistake". But when the next mistake occurs is the best chance to uncover what copy-protection Vista obeys on digital, over-the-air TV.
We're looking to obtain raw data dumps of the ATSC stream next time your copy of Vista chokes on an over-the-air digital TV feed.
(Note that we're not looking for "Can't Record Program" errors with shows received via either CableCard units or analog TV tuners -- we know that Microsoft obeys copy controls on these systems. We just want cases where over-the-air, broadcast digital (HD) TV has been affected.)
Right now, we're asking owners of the HDHomeRun to watch out for this problem. We're concentrating on this device because many Windows users run this hardware in conjunction with Vista Media Center, so they'll be able to see when the problem arises. Also, it provides only digital HD information to your PC (allowing us to eliminate any analog copy-protection systems). Finally, it's relatively easy to make a complete copy of the digital TV datastream using HDHomeRun's command line utility. Here's how:
Go into Live TV mode in VMC and choose the problem NBC channel.
Check the HDHomeRun LEDs to determine if tuner 0 or tuner 1 is
being used. The LEDs are in this order: (Power) (Ethernet, Tuner 0, Tuner1).Record a 60 second sample of the stream:
Open a cmd prompt and run:
"C:\Program Files\Silicondust\HDHomeRun\hdhomerun_config" FFFFFFFF save /tuner0 sample.ts(specify tuner 1 if VMC is using tuner 1)
Wait 60 seconds then press Ctrl-C to stop.
When you've got your sample, mail EFF at info@eff.org with a specification of your setup, the date, time and channel of the show. We'll get in touch.
If you know how to record the raw datastream (not just the MPEG2 data, the whole transport stream) on other hardware, let us know, and we'll add it to this blog entry.
Microsoft's Masters: Whose Rules Does Your Media Center Play By?
Deeplink by Danny O'BrienWhile its customers are still puzzling over why Vista Media Center is suddenly refusing to record over-the-air NBC digital TV, Microsoft has come out with an astounding admission, courtesy of Greg Sandoval at CNet News:
"Microsoft included technologies in Windows based on rules set forth by the (Federal Communications Commission)," a Microsoft spokeswoman wrote in an e-mail to CNET News.com. "As part of these regulations, Windows Media Center fully adheres to the flags used by broadcasters and content owners to determine how their content is distributed and consumed."
Microsoft's statement shines light on how Microsoft expects Media Center to behave. If this is the company's explanation for what users are seeing when attempting to record digital NBC broadcasts over-the-air, then Microsoft is saying Vista obeys the broadcast flag: a requirement rejected by courts and Congress.
The FCC regulation that Microsoft's spokesperson says it follows is not in force - that is, there is no legal requirement for them to follow these rules. They were rejected by the D.C. Circuit of Appeals in a case brought forward by librarians, public interest and consumer groups (including EFF and Public Knowledge). Microsoft is not complying with the FCC: it is complying with the "broadcasters and content owners" who so dearly wanted the flag in place, and failed to manage it.
Even if Microsoft somehow believes the FCC regulations still apply, they are going far beyond mere compliance. Here's the FCC's rulemaking on the flag:
In light of our decision to adopt a redistribution control scheme and to avoid any confusion, we wish to reemphasize that our action herein in no way limits or prevents consumers from making copies of digital broadcast television content.
...
[The aim of the broadcast flag] will not ... interfere with or preclude consumers from copying broadcast programming and using or redistributing it within the home or similar personal environment as consistent with copyright law.
Here is Microsoft's interpretation of an over-the-air flag:
Note how Vista forbids recording this broadcast program at all: exactly what the FCC said the flag should not do. (The broadcast flag requirements allowed you to record TV, but required the recorded material be "protected" to prevent you from redistributing it beyond approved and locked-down devices). In Microsoft's attempt to "fully adhere', they have gone beyond what the FCC ever asked them to do: they have agreed to what broadcast and content owners could only dream of passing by fiat.
Microsoft's attempt to cover its behavior by claiming compliance with the FCC neither explains nor justifies the errors that their customers are currently seeing. The company needs to spell out exactly whose rules Vista is following, and exactly how they affect their customers computers' current and future behavior.
Update: Why is NBC Flagging Digital TV Programs - and Why is Microsoft Obeying It?
Deeplink by Danny O'BrienAfter further investigation of reports of Vista refusing to record NBC, we have found at least one case where a user receiving digital TV over-the-air has been blocked from recording TV shows. Justin Sanders, who took this screenshot, says he was recording Raleigh's HDTV channel WNCN-DT1 on his Vista machine when a popup stating that "restrictions set by the broadcaster ... prohibit recording of this program" appeared.
This is significant: this is the first case we've heard of equipment voluntarily obeying broadcast flag-like restrictions on TV content digitally broadcast over-the-air.
The broadcast flag is a small piece of data broadcast alongside a digital TV program. The ability to flag broadcast content was created by the ATSC standard which governs digital TV broadcasts in the United States. By itself the broadcast flag cannot restrict use of broadcast content. Instead, its force comes from a tech mandate law - an FCC regulation - which required manufacturers of DTV-receiving devices to detect and respond to "switched on" broadcast flags. EFF and others opposed the use of the broadcast flag and fought successfully to have the FCC regulation overturned by the courts. We did that because it handed control over your hardware to a remote authority, limited your right to your fair use of media, and would have made illegal open source products like MythTV. As a result of that victory, manufacturers are not legally required to force their devices to detect and respond to the flag.
It would now appear that Microsoft has voluntarily chosen to obey such content restrictions in Vista, despite the successful work of thousands of users to defend Microsoft's right to innovate and our right to fair use. Justin was attempting to record the program on Windows Vista Ultimate using Silicon Dust's HDHomeRun external tuner, which decodes the digital TV signal, and sends it over Ethernet to many types of digital TV receivers, such as MythTV or EyeTV. As Silicon Dust says on its website, their decoder merely passes on the datastream, and does not interpret data like the broadcast flag field itself, so we know that it is Windows alone that has declared that this program should not be recorded.
To be perfectly clear: Microsoft is under no legal obligation to look for and respond in any particular way when it sees the broadcast flag being sent by NBC's digital stations. Any DTV-receiving software technology or device - like MythTV - is free to take the same stream from HDHomeRun and ignore a broadcast flag transmitted with it. In other words Microsoft did not have to build its PC to look for and refuse to record a program which has its flag turned on.
Had consumers not stood up against the FCC'S mandatory flag rule three years ago, alternatives like MythTV would no longer be available. Back then, the FCC tried to force tech companies (and open source developers) to obey the entertainment industry's remote TV control. A coalition of librarians, public interest organizations, and consumer groups successfully challenged the FCC's jurisdiction to impose such a broad regulation in Federal court. After the rightsholders lost in court, they spent millions lobbying Congress to pass a law forcing receivers to obey their command. Your letters and calls stopped that bill.
So why, after all that work, does Microsoft's software appear to honor content restriction? It's hard to say. Was it a content licensing requirement? Microsoft didn't have to do so if it just wanted its devices to decode and display over-the-air digital NBC broadcasts -- just as you don't need to sign a contract in order to decode and display the signals sent over the public airwaves into your living room. American consumers can choose what to do with their digital broadcast TV, just as they have been able with analog broadcast TV.
Perhaps it was an unintended mistake by Microsoft caused by the extensive DRM systems Vista has in place elsewhere. Perhaps Vista has been confused into thinking this open NBC datastream is a restricted CableCard feed, which can (and does) block recording. Or perhaps it it part of Vista's system for obeying CGMS-A, another copy control system that Microsoft voluntarily agreed to implement .
If it's a technical problem, Microsoft should confess, and fix it as soon as possible, before many more digital TV viewers are inconvenienced (and users switch to less encumbered devices in droves).
If, however, it is a deliberate "feature", they have some explaining to do. That would amount to putting the desires of content holders above the best interests of its customers. Even worse, it would mean they kept the deal silent while they marketed their broken hardware to those same unsuspecting customers.
We're now working with Silicon Dust to try to replicate the circumstances in which Vista failed to record, and to do further analysis. We'll keep you updated on what we learn.
