Story: Your locked-down digital future

Better pay attention: Hollywood is adding such little-known weapons to its arsenal as “certification” and “renewability”—new forms of copy control that are about to enter the living room by stealth. The following is excerpted from chapter 6 (Cool toys Hollywood wants to ban) of Darknet: Hollywood's War Against the Digital Generation. This is another in a series of excerpts from the book, along with new material, appearing every Monday for the next several weeks.

The crowd at Oakland’s Black Box spills out the door into a warm summer night. The event, part of the Illegal Art exhibit held to dramatize the tightening noose of misapplied copyright laws, features creators of electronica, digital film, and “appropriation-based” art along with leaders of the free culture movement. More than 150 people mill about, from deeply earnest Berkeley activists to nose-ring-clad San Francisco fashionistas. A college student lets his black T-shirt speak for many here with its simple sentiment: “Sharing isn’t stealing.”

Six of us huddle around a television as a scene from Teletubbies appears onscreen. But this is not your father’s PBS: as morning dawns in Teletubby-land, the sun morphs into the face of George W. Bush and begins shooting death rays at bunnies and wild creatures.

In the next video, we see the Little Mermaid, but the animator of this five-minute film short inserted burning skeletons, a menacing cat-faced woman, the ominous sound of a music industry lawyer, and the voice of the Little Mermaid dubbed over the band Negativland’s helium-tinged cover of Black Flag’s “Gimme Gimme Gimme.” Not exactly Disney fare—and this may have been the artist’s point.

Here, and at a related show across the bay at the San Francisco Museum of Modern Art Artists Gallery, we see works pushing the edge of cultural expression, pricking our dulled sensibilities. But now large corporations are pushing back. Mattel sued artist Tom Forsythe, who placed Barbie in a blender as a way to expose the efforts to sell “an impossible beauty myth” to children. Playwright Jason Sherman’s play The Message, about the last years of Marshall McLuhan’s life, was set to open in Toronto in fall 2003 but was canceled when McLuhan’s family made vague threats about suing for copyright infringement. A court banned a documentary on Karen Carpenter’s battle with anorexia from movie theaters because it included music by the Carpenters without authorization; the film portrayed her brother, Richard, in an unflattering light, and he refused to grant the filmmakers permission to use the music. Thus the screening shown tonight is a bootleg. The exhibit also features a CD containing two dozen songs that have been embroiled in legal troubles.

Near the doorway, Richard Prelinger, the silver-haired film archivist who has put twelve hundred public domain films online at the Internet Archive, inspects a Krishna wall mural. The movies he oversees were downloaded about a million times in the past year, but few additional films will be added to the collection over the next twenty years, thanks to the Sonny Bono Act. “Members of the public have no affirmative right to access cultural information,” Prelinger tells me. “People need to understand that it’s the middlemen—distributors and publishers—who are using copyright laws to clamp down on expression and trying to turn the Internet into a read-only medium. Artists have to organize and stop letting the corporations act on our behalf to impose an all-rights-reserved view of the world. Art has never been about that.”

Next, I run into one of the night’s speakers, Fred von Lohmann, the ponytailed attorney for the Electronic Frontier Foundation. Whenever the EFF defends a file-sharing network or someone charged with violating
the Digital Millennium Copyright Act, the dark-eyed, boundlessly energetic von Lohmann typically appears in court or files briefs. As I peer around the gallery, I tell von Lohmann that while the clampdown on artistic freedoms is important, I suspect many people in my suburban town would find the issues too abstract and removed from their lives. How is middle-class America suffering, as he claims, from the entertainment industries’ regime of tightening control?

He begins by mentioning court cases in which musicians have been fined as much as $90,000 and had their albums recalled for failing to secure the proper licensing rights to borrow from earlier works. Since the early 1990s, court rulings have so drastically limited the art of sampling—forcing bands to sometimes pay six figures for a snippet lasting a couple of seconds—that many musical acts have given up on sampling. The hip-hop group Public Enemy never regained its earlier mass appeal after the courts turned sampling into pay to play. Sampling now enjoys its greatest popularity in underground dance clubs.

The court battles over file sharing show no signs of subsiding, with the entertainment industries seeking to shut down Kazaa and other file-trading networks and the recording industry, filing hundreds of lawsuits against individuals who make copyrighted music available to others on peer-to-peer services. (My own view is that Kazaa is largely an outlaw outfit but that not all file-sharing networks are equally culpable.)

“Lawsuits and legislation have become the weapons of choice for dealing with file sharing and cultural recycling,” says von Lohmann, wearing a black blazer, jeans, tennies, and EFF cap.

But he says the clampdown on digital culture is taking place not only in the courts but also in neighborhoods, nightclubs, exhibit halls, and homes, where the culture of reinvention is under assault. If the current legal climate had been in place decades ago, all of jazz would have been illegal. Traditions that rely on reworkings of real-world images, such as surrealism, collage, and Pop Art, might have been smothered in the cradle.

Public libraries are another battleground. Librarians are trying to protect the public’s access to new books and articles against the efforts by some publishers to push a pay-per-view model so that whenever a reader wants to access information on an electronic device, it becomes a billable event. Many e-books forbid copying or making printouts, even for books in the public domain. Copy protection also impairs a library’s ability to archive and preserve materials that may disappear within a few years. Over the long term, such practices could jeopardize the very underpinnings of the free public library system.

Closer to home, the media players and digital devices entering our living rooms are being designed in ways that serve Hollywood at the expense of the public. Von Lohmann predicts we’ll soon see personal video recorders that automatically delete recorded shows after a certain amount of time at the copyright holders’ behest. “I’ll guarantee you that’s coming,” he says. Hollywood already has the right to begin erasing a digital pay-per-view program from your recording device as soon as ninety minutes after the telecast ends.

Von Lohmann and Kraus both point out that computer companies and consumer electronics companies had long acted as surrogates for the public in these private industry forums. Because the interests of Hollywood, the tech industry, and the CE industry overlapped but did not align completely, the hardware manufacturers could be counted on to fight for consumers’ rights. “My, how things have changed,” von Lohmann says. “Sony led the fight for home taping because it had a business in selling VCRs. Today it’s harder to think of Sony as an advocate for the public interest because their business is now so deeply intertwined with content. Microsoft traditionally has served as a proxy for the public because they empowered people to use computers in new and creative ways. But Microsoft now has a second agenda, which is to gain market share by wooing Hollywood with the most restrictive digital rights management technologies they can devise. So when these three industries get together in cross-industry groups, the deals they cut sometimes don’t reflect the public interest. I don’t think we’ll see them trade away things like the consumer’s ability to time-shift television. But they’re perfectly happy to trade away future innovations that would benefit the consumer, so long as they can be assured that everyone must give up those same innovations. That’s where legislation, regulations, licensing rules, and tech mandates all come in.”

Licensing standards set within the clubby confines of these private industry groups rarely get much attention, but the rulemakers effectively dictate consumer electronics policy for the public, which rarely has a seat at the table during negotiations. Take the DVD. In 1996, Hollywood was all set to launch the new DVD format for playback on DVD players but not on computers. It was only the tech industry’s proposal to include copy protection, and a decision by Warner Home Video and Toshiba to fend off a rival format by Sony and Philips called the Multimedia CD, that led the studios to agree to make Hollywood DVDs compatible with the computer’s DVD drive. Several studio executives have suggested that if they had to do it all over again, they never would have agreed to allow DVDs to play on computers, given how trivial it was for the encryption to be broken. “Frankly, we made some mistakes last time,” says Adrian Alperovich, executive vice president of Sony’s Columbia TriStar Home Entertainment. “I think the standards should have been tougher.”

Today, Hollywood, consumer electronics makers, and tech companies are back at the bargaining table, hammering out how the next generation of high-definition DVDs will behave. The new discs, under development for years, will hold four to five times more video and audio data than standard DVDs. This time around, studios want an airtight protection scheme, a digital vault that even the best minds at the National Security Agency cannot penetrate.

Hollywood is adding such little-known weapons to its arsenal as “certification” and “renewability”—new forms of copy control that are about to enter the living room by stealth. (Another feature, called "selectable output control," allows copyright owners to turn off a viewer's set-top box's outputs under certain circumstances, as when a copy protection scheme has been hacked. But consumer groups and electronics companies say honest viewers shouldn't be prevented from, say, playing HDTV movies or recording high-def television just because someone somewhere else foiled the industry's copy control system.)

When a transaction takes place between a customer and movie studio over the Internet, certification tells the merchant who you are and whether you have the authority to place the order.10 It can monitor what kinds of movies or programs you’ve been watching. The technology can be used in other ways as well. Because copy protection on DVDs has been broken and DVD burners are proliferating, the studios are pushing for ways of signaling to a DVD player or receiver that a disc or a recording is authorized. The video would shut down if it doesn’t have the proper clearances. Entertainment analyst Tim Onosko predicts: “Next-generation DVD players on the drawing boards will most likely dial a mothership to check the legitimacy of your content. If it’s a disc that somehow violates the rules, or is a bootleg or an illegal clone copy, the player will balk.”

Renewability means if someone has bypassed the copy protection on a home electronics product, the system can be updated with new copy protection. Also called upgradeable DRM, renewability puts devices on a digital leash, giving the entertainment companies the power to cut the cord to any technology or media player it believes has been compromised—and effectively turning Hollywood into the warden of our entertainment experiences.11 Nurse Ratchet, meet your match. Because it is impractical
to introduce a major new format more than once or twice a decade,
the studios’ answer lies in retaining a format like DVD but changing its copy protection. Hollywood appears excited by the prospect of forcing all media players to abide by its rules of control. Mitch Singer, executive vice president of digital policy for Sony Pictures Entertainment, said at the 2004 Digital Hollywood summit, “We want to make sure any future devices will be updatable, especially as we move into high-def.” Tech representatives have signaled their willingness to add such renewability features in future media players.

You say you want to use fifteen seconds from that new Eddie Murphy film as part of your school project? Today millions of people are able to assert their fair use rights by downloading software from the Darknet to circumvent the DVD’s copy protection. Tomorrow, when Hollywood introduces a new copy protection scheme, as soon as a hacker cracks and distributes the encryption key, the studios will be able to send a firmware update to your next-gen DVD player so that the crack no longer works—and you won’t be able to snag those fifteen seconds after all. Or, say you transfer movies or TV shows to your Archos portable media player. (The French devicemaker Archos subverts copy protection by letting users plug the device into a DVD player and transfer a movie to it.) If Hollywood has detected that 0.01 percent of Archos’s customers are illegally uploading movies to the Internet with the help of Archos players, it could update the software inside DVD players or set-top boxes to prevent the transfer of films and TV shows to all Archos players. Hollywood would maintain a “whitelist” of approved devices and a blacklist of naughty devices that aren’t sufficiently locked down. Von Lohmann says your DVD player would not need to be online: when you drop a commercial DVD into the player, a hidden track on the disc will update your player’s firmware without your knowing it.

Of course, if that happens, some users will be tempted to simply point a camcorder at a TV or computer screen or theater screen to capture the scene they want. The media companies can’t stop that, can they? But Hollywood may trump you there, too. Cinea of Herndon, Virginia, has devised a Cam Jam technology to modify the image projected on theater screens and some small screens so that you can watch it without noticing anything amiss, but a videotape taken of the same image comes out marred. Engineers at the Dolby Laboratories-owned start-up—mostly the same crew who came up with the Circuit City DivX pay-per-play scheme that consumers so thunderously rejected—came up with the copy protection solution after studying differences between the way humans process moving images and the way cameras record them. No doubt the Cam Jam technology—without an accompanying warning label—will soon be coming to a camcorder near you.

Score one for “information with a ball and chain,” as Steven Levy put it in a Newsweek column discussing the coming era of digital rights management—technologies that govern how you may use digital media:

We’re entering the age of digital ankle bracelets. . . .
Like it or not, rights management is increasingly going to be a fact of your life. Not only will music, books and movies be steeped in it, but soon such mundane artifacts as documents, spreadsheet files and e-mail will be joining the domain of restricted information. In fact, the next version of Microsoft Office will enable creators of certain documents to issue restrictions that dictate who, if anyone, can read them, copy them or forward them. In addition, you can specify that the files and mail you send may “sunset” after a specified period of time, evaporating like the little tapes dead-dropped to Peter Graves in Mission: Impossible.

Von Lohmann sees some of the biggest battles ahead over the public’s use of video. “The natural thing for people to do is appropriate, mix up, edit, and play the video that’s all around them. That’s what we’ve seen in music with mash-ups and sampling, that’s what we’ve seen in art with collage and pastiche-based expression.”

The restrictions on new technologies can only serve to dampen innovation, he says. Von Lohmann tells of a phone call he received from a real-estate developer who builds homes in new subdivisions. The developer told him, “I’m putting in all these houses that can be wired together, and people will want to put personal video recorders in their houses. Once I have a cluster of these houses in a subdivision, I could effectively digitize all television signals, using the different PVRs to record different films and channels. And if they were all connected together, there could be a service for this suburb where you could get just about any TV show you wanted through this distributed network.”

Von Lohmann says he responded, “‘Yes, that’s a great idea. And you will get sued within a week if you build it.’ That chilled him on it. The studios and networks would sue him because this is their nightmare scenario, where the future of television is taken out of their hands and put in the hands of someone like the user or the subdivision developer.”

In the end, this may be the greatest potential loss to society: the service that never rolls out, the device that never gets invented, the cultural advancement that never takes place—all for fear of a Hollywood lawsuit.

(From Darknet: Hollywood's War Against the Digital Generation. You may copy excerpts from this entry to comment on or critique the work or to otherwise engage in fair use.)