Mickey Mouse and the Social Darwinists
p2pnet news view Freedom | P2P:- “You`re at home, popcorn in hand, watching Mickey Mouse on your new digitally enhanced, flat-screen home entertainment system with surround-sound. It cost a packet, but that`s OK. Your kids are laughing their heads off at Mickey`s antics, and everyone`s having a great time.
“Then suddenly POW! Everything shuts down without warning and instead of watching Mickey, you`re looking at a blank screen.
“Because although your new system also has remote control features, you`re not the one using them. The Mickey you were watching wasn`t the approved Hollywood version, so Hollywood shut you down remotely.”
p2pnet posted that almost exactly six years ago under the heading Broadcast Flag kills Mickey Mouse.
Now, “The MPAA is once again trying to badger the FCC into approving Selectable Output Control, which would plug the ‘analog hole’ during broadcasts of some prerelease HD movies,” said Tyler Too on Slashdot, going on »»»
MPAA bigshots met with seven staffers from the FCC Media Bureau last week, calling the petition a ‘pro-consumer’ (!) move designed to ‘enable movie studios to offer millions of Americans in-home access to high-value, high definition video content.’
At least the studios are now acknowledging that SOC would break the functionality of some HDTVs, an admission they were previously unwilling to make: ‘What’s interesting about the group’s latest filing, however, is that it effectively concedes that the output changes it wants could, in fact, hobble some home video systems.
The, “vast majority of consumers would not have to purchase new devices to receive the new, high-value content contemplated by MPAA’s request, the group assures the FCC,” Tyler Too adds.
Broadcast flag and the analog hole
“… more than seventy lawyers and engineers from the U.S. information technology, consumer electronics, and video content industries gathered outside Washington, D.C. to begin consideration of technologies that would ensure that embedded copy protection signals remained persistent when information was changed from digital to analog form. During this meeting, a Warner Bros. representative said that the absence of rules in the analog world was preventing natural evolution towards the broad use of digital forms of high-quality content, even though digital was clearly a superior technology that should “win” the evolutionary battle.”
So wrote Susan Crawford, well-known blogger and professor of law who these days is Barack Obama’s special assistant for science, technology, and innovation policy, in the summary to her paper, The Biology of the Broadcast Flag.
Also dubbed by Wired the, “most powerful geek close to the president,” she went on in part »»»
In other words, this individual was claiming that the existence of machines that do not follow content industry rules is unnatural — because use of such machines will slow natural evolution towards a well-controlled, successful digital future. Such a use of evolutionary theory is indicative of the industry’s firmly-held belief that it has a natural right to prevail, and that its current business models should be protected by courts, legislators, and regulators.
As part of this believed biological imperative, the Motion Picture Association of America (”MPAA”) and its content affiliates (broadly referred to as the U.S. “content industry”) would like all consumer electronics and information technology companies to innovate “according to the rules.” This would ensure that Hollywood’s movies are specially protected from unauthorized redistribution inside and outside the home through adherence to a “broadcast flag” scheme (proposed to be implemented by the FCC) and through anticipated legislation that will require U.S. manufacturers to follow policies designed to ensure that protection signals are not lost in any digital- analog-digital conversions (so that the “analog hole” is closed). The triggering event for the broadcast flag/analog hole discussion is the digital television (”DTV”) transition, a step that is supposed to occur by 2006. Moving to DTV will release a good deal of radio spectrum for new uses (because the broadcasters will use only their digital spectrum and will give back their analog spectrum), and the FCC willauction licenses for this spectrum — with the proceeds going to the federal government. Congress has been assuming in its budgeting process that revenues from the resulting spectrum will be more than $6 billion. Thus, there is tremendous pressure to complete the DTV transition. Hollywood is using this pressure to ensure that its rules are adopted, saying that unless their high-quality content is adequately protected it will not be broadcast, and that no one will want to watch low-value broadcast content. Because the DTV transition is dependent on consumers buying new digital televisions, and presumably consumers who do not want to watch low-value content will buy new machines, Hollywood’s threat has facial appeal to regulators.
While it is beyond question that the digital world poses special threats to businesses that live or die on their ability to control the distribution of content, the arguments made by the MPAA and its content colleagues in support of national (and, eventually, global) control over the functionality of the devices that manipulate content are fundamentally troubling for the future of innovation and the future of law itself. It is easy enough to think of innovation as a kind of mechanical evolution. The preserving of the rich evolution of any system necessarily involves a willingness to allow the system to mutate or be random at various points in order for there to be choices that can be selected. If choices are squelched through technical mandates directed at assuring the survival of particular business models, new and interesting creatures — machines, applications, and ways of interacting — will not come into being.
The approaches taken by the content industry in the broadcast flag and analog hole contexts, if successful, may have the unintended (or intended) consequences of keeping new creatures (or new machines) from appearing and keeping a particular creature (the studios’ business model) from becoming extinct. Social Darwinism of the kind being invoked by the MPAA has a long history in the U.S., and has been used as justification for any number of ultimately undesirable end-goals. [Our paragraph break.]
Usually a Social Darwinist wants to argue against regulation that would bolster a particular group; here, ironically, the content industry is arguing for regulation to support its survival. But the content industry has (perhaps inadvertently) hit on a very important way of thinking about the law.
“Attention should be paid to the evolutionary ecosystem of the law as the background medium in which innovation occurs, business models evolve, and social factions grow and prosper,” Crawford said.
“There is now a greater understanding that law and code are complementary; both law and code shape our world.”
Her The Biology of the Broadcast Flag was published five years ago.
Don’t adjust your dial. The MPAA will do it for you.
First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi
six years ago – Broadcast Flag kills Mickey Mouse, October 24, 2003
Slashdot – MPAA Pushes Once Again To Close the Analog Hole, September 4, 2009
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