Intellectual Property is Intellectual Theft … at Gun Point

There’s nothing more wonkish than intellectual-property regulation. But intellectual-property enforcement may well turn out to be the lever for government intrusions into private life every bit as profound and extensive as the better-known secret-police initiatives of the Patriot Act.

You know all those old myths and stories about dead folk who just won’t stay dead — zombies, vampires, Richard Nixon? Well, there are ideas like that too — ideas that won’t stop clawing their way out of the grave and back into the light of day. One such idea is the “broadcast flag,” recently returned aboveground, for the Nth time, tucked into an enormous telecommunications bill (S. 2686), now before the U.S. Senate.

“Broadcast flag”? Before your eyes glaze over, give me a few seconds to get you good and scared. Because this one is a real flesh-eating zombie of an idea, and it just won’t stay dead.

“Broadcast flag” is shorthand for two different but interconnected things. One of them is a flag or tag or attribute, or whatever you want to call it, embedded in a digital audio or video stream, that says “don’t copy me without permission.” This is the “broadcast flag” in the literal sense.

Which might seem harmless. It’s like an electronic version of the copyright notice on a book, or that goofy thing about the FBI that leads off every video you rent. But if the government ever got serious about enforcing it…. that’s where the Inquisition would come tiptoeing into your TV room, and maybe right onto your lap, as we will see a little later.

Well, guess what: Big Media does want the government to enforce the broadcast flag, and the government, ever solicitous for the rights of large-scale property, is eager to oblige.

The broadcast-flag initiative now before the Senate resuscitates an attempt by the FCC, back in 2003, to mandate broadcast flag compliance by all digital media devices. That regulation, known to aficionados as FCC 03-273, was subsequently buried with a stake through its heart by a Federal court. Now the Senate is digging it up again, with near-universal participation by Republicans and Democrats alike. The Flag just sailed through the Senate’s commerce committee without a recorded vote, a pretty sure sign of bipartisan ownage by the relevant lobby; the frogs and the mice will not be fighting over this one. The only dissenter, so far, is Senator John Sununu of New Hampshire, who seems to have some real libertarian principles, not just a libertarian line of chat like most of his colleagues.

The 2003 FCC rule, written to order for the Motion Picture Association of American (MPAA), Recording Industry Association of America (RIAA), the National Football League and other copyright rentiers, is a thicket of obscure, rebarbative language, vague definitions, cross-references, and cabbalistic terms of art. But if you stare at it for a while, the crux becomes pretty clear: “demodulators” must comply with the broadcast flag. And what is a demodulator? It is any device or component that takes a digital TV or audio signal and turns that signal into a stream of bits that can be written to a CD, or shown on a screen, or downloaded to your iPod.

Sounds like some kind of electronic gizmo, right? A thing with transistors, and wires, and maybe some pretty blinking lights. Indeed, a demodulator can be just that. And maybe it doesn’t seem so terribly tyrannical to mandate certain kinds of behavior on the part of a gizmo. There are plenty of precedents — cars have to have seatbelts, for example.

But here’s the rub: a demodulator can also be just a piece of software, or part of a larger piece of software. Computers, including your 14-year-old’s laptop, are rapidly becoming so powerful that it’s only a matter of time before your 14-year-old can download a demodulator, or a program that includes a demodulator, from some other 14-year-old in Finland — or write his own, for that matter.

Now what happens when that wicked Finn, or your wicked offspring, decides to ignore the Broadcast Flag? Well, the FCC doesn’t come right out and say. They don’t explicitly include such “software demodulators” in the scope of their regulation, but they don’t explicitly exclude them either, and the definition of “demodulator” is certainly broad enough to cover them. And the FCC haven’t overlooked the possibility of software demodulators — they write:

“… critics note that … non-compliant hardware or software demodulators could be produced with relative ease by individuals with some degree of technical sophistication….”

They go on to say, ominously, I think:

“… we seek further comment on the interplay between a flag redistribution control system and the development of open source software applications, including software demodulators, for digital broadcast television.”

‘Interplay’ is good, isn’t it? Interplay nice, kids. But think for a minute about the implications of all this. Obviously, you won’t be able to buy a digital TV, or any other digital media device, whose manufacturers haven’t certified to the Feds that it honors the Flag. Perhaps they will have to give the Feds the schematics, or the source code for their “firmware” — the embedded programming that enables the device to operate. And if you want to get around this restriction, and load software onto your laptop that ignores the Flag, then technically, that software is probably contraband and you will have probably committed a federal crime. But will the law be enforced in such cases?

I think, sooner or later, it will. Not tomorrow. For tomorrow, and next week, software demodulators will be a very geekish hobby, too small-scale to bother the MPAA and the RIAA. But we have all seen how quickly geekish hobbies can infect the millions. And when that happens with software demodulators, there’ll be a crime wave, and the MPAA and RIAA will sit up and take notice.

They’ll want to find all these bad actors who have loaded non-compliant software onto their laptops. But that’s not so easy. There’s no way a “content provider” can tell, from his end of the wire, what software the recipient of his digital media stream is running.

Ultimately, warrants will have to be issued. Fibbies in flak jackets will charge into your house and confiscate your 14-year-old’s computer. Aha! He’s running Linux! And he’s been visiting Web sites in Finland! Twenty years for the little Commie song pirate!

Does this sound unlikely? It shouldn’t — we’ve already seen it before, with the FBI breaking into houses and the RIAA filing thousands of lawsuits against people accused of “file sharing.”

Intellectual property enforcement, in other words, will lead to a kind of de facto government software regulation. The software police won’t entirely succeed in suppressing contraband software — we’ll have an eternal war, a little like the Drug War, which suits the police just fine, of course. But certainly they will succeed to some extent; the prospect of a midnight raid will keep all but the bold and heedless safely inside the sheepfold of approved software, produced by Microsoft or Apple or Sony or some other large corporation.

You know what the next step will be. The approved software manufacturers will be approached, just the way the NSA recently approached the telephone companies. Kiddie porn — terrorism — video piracy — bad things, right? Surely you’ll help us defeat terrorism and put child molesters behind bars? Your techies have probably left some back doors into that movie software, right? Tell us more. What’s that? You’re hesitating? You’re not a, uh, child molester yourself — are you? Y’know, your ex-wife tells some strange stories….

Paranoid, you say? Well, a few years ago it would been paranoid to predict that cops would be searching people’s knapsacks in the New York subways, or that the NSA would be monitoring your grandmother’s phone calls.

There’s been a vast expansion, in recent years, of the idea of “intellectual property.” You can patent most anything — Microsoft, I hear, owns all the transcendental numbers except pi, and they’re suing Euclid’s estate over that. (Just kidding. Sort of.) Copyright is forever, or as near as dammit. Fair use is narrower and narrower, and there are even public parks where it’s a copyright violation to take pictures.

And this is taking place at the same time that technology is making intellectual property a laughably obsolete idea. Once you’ve got a stream of bits on your hard drive, there is no power on earth that can stop you from copying it — except the oldest power, the power of armed men to break your door down and take you away.

MICHAEL J. SMITH is a computer programmer by day. By night, he conspires to destroy the Democratic Party on his blog, stopmebeforeivoteagain.org.




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