Advances in digital technology might seem like a win-win situation for consumers and content providers, but such improvements also make it easier to pirate and reproduce third-party content. This is especially true with the increased availability of software on the Internet designed to convert analog content into a digital version capable of unrestricted reproduction.

In the past, efforts focused on creating something called a “broadcast flag” for digital TV broadcasts. The broadcast flag is a type of digital rights management system (DRM) that protects the copyrights of data circulated via the Internet or other digital media by enabling secure distribution and/or disabling illegal distribution of the data. However, representatives of the motion picture and television industries criticized this approach because it only applied to devices that process digital video signals, thus creating an “analog hole.” As a result, thieves could bypass the broadcast flag by simply recording digital broadcasts to analog devices like a VCR.

The term analog hole refers to the fundamental vulnerability in copy prevention schemes where non-interactive digital content, such as video content, is intended to be played back using analog means. The problem arises when digital content is converted into analog form because this process strips the content of its applicable copy restrictions, thereby allowing the content to be converted back into digital form without accompanying copy restrictions.

Recognizing this problem, Representatives F. James Sensenbrenner Jr. (R-Wis.) and John Conyers Jr. (D-Mich.) recently introduced the Digital Transition Content Security Act of 2005 (H.R. 4569). The bill calls for a government-mandated DRM system to protect digital TV broadcasts from piracy. The legislation proposes to close the analog hole by requiring consumer video devices, such as VCRs, to be built with anti-copying technology.

Specifically, the bill requires all consumer electronics video devices manufactured more than 12 months after the act is passed to be able to detect and obey a “rights signaling system” that would limit how content is viewed and used. The system would consist of two DRM technologies embedded in broadcasts and other analog video content. The first system, Content Generation Management System-Analog (CGMS-A), is a technology used to embed metadata about the program. The second system, Video Encoded Invisible Light (VEIL), is a back-up system for watermarking TV programs.

Under the new bill, broadcasters would be required to pass through any underlying rights signaling embedded in a program. A CGMS-A encoded program would be required to transmit information about the type of copying allowed and whether redistribution control is asserted. The proposed legislation defines “Technical Content Protection Responses” that consumer devices will have based on the type of signal transmitted in a broadcast. The first is a “Copy Prohibited Content” designation that would mark the transmission as off limits for copying or recording of any kind. The second is a “Copy Unlimited No Redistribution Content” designation that would allow analog content to be passed through to a digital device for copying, but would limit redistribution of that content. The third is a “Copy One Generation Content” designation that would allow viewers to make a single generation of copies. If no technical protection is applied, the content could be recorded and redistributed without limitation.

The legislation also prohibits the manufacture, importation, or sale of all consumer electronics video devices in the United States that fail to perceive or respond to the DRM systems. Penalties for noncompliance include statutory damages (up to $2,500 per device) and criminal penalties (a fine up to $500,000 and/or five years in prison for the first offense). Subsequent offenses would carry penalties of up to $1,000,000 and/or 10 years in prison.

Those in the electronics and software industry are divided on this issue, with some worrying that the proposed restrictions will stifle the incentive to innovate, while others see the legislation as a necessary protection. In addition, consumer advocacy groups are concerned that, in combination with possible broadcast flag legislation, the bill will prevent legitimate fair uses of digital material. Part of the criticism focuses on a feature of the bill that prohibits “copy prohibited content” from being stored for longer than 90 minutes from initial receipt of the signal. Others have pointed to the requirement that manufacturers add copy-control circuitry to any device that accepts analog video signals which may have little impact on piracy but add to the cost and complexity of consumer electronics and computers.

Also of interest, the Audio Broadcast Flag Licensing Act of 2006 (H.R. 4861) was recently introduced in the House in a similar attempt to protect digital audio content from piracy and misuse. The bill would prohibit consumers from recording songs off the radio provided by digital radio transmissions services such as XM Radio and terrestrial HD radio.

Currently, both bills have been referred to committees in the House, but further action has not been taken.

Anthony Lupo
202.857.6353
lupo.anthony@arentfox.com

Halle Markus
202.857.6113
markus.halle@arentfox.com