The Professional Device Hole http://www.freedom-to-tinker.com/?p=954
Any American parent with kids of a certain age knows Lewis Sachar¹s novel Holes, and the movie made from it. It¹s set somewhere in the Texas desert, at a boot camp for troublemaking kids. The kids are forced to work all day in the scorching sun, digging holes in the rock-hard ground then re-filling them. It¹s utterly pointless but the grown-ups say it builds character. Eventually we learn that the holes aren¹t pointless but in fact serve the interests of a few nasty grown-ups. Speaking of holes, and pointless exercises, last month Reps. Sensenbrenner and Conyers introduced a bill, the Digital Transition Content Security Act, also known as the Analog Hole Bill. ³Analog hole² is an artfully chosen term, referring to the fact that audio and video can be readily converted back and forth between digital and analog formats. This is just a fact about the universe, but calling it a ³hole² makes it sound like a problem that might possibly be solved. The last large-scale attack on the analog hole was the Secure Digital Music Initiative (SDMI) which went down in flames in 2002 after its technology was shown to be ineffective (and after SDMI famously threatened to sue researchers for analyzing the technology). The Analog Hole Bill would mandate that any devices that can translate certain types of video signals from analog to digital form must comply with a Byzantine set of design restrictions that talk about things like ³certified digital content rights protection output technologies². Let¹s put aside for now the details of the technology design being mandated; I¹ll critique them in a later post. I want to write today about the bill¹s exemption for ³professional devices²: PROFESSIONAL DEVICE.(A) The termprofessional device¹¹ means a device that is designed, manufactured, marketed, and intended for use by a person who regularly employs such a device for lawful business or industrial purposes, such as making, performing, displaying, distributing, or transmitting copies of audiovisual works on a commercial scale at the request of, or with the explicit permission of, the copyright owner. (B) If a device is marketed to or is commonly purchased by persons other than those described in subparagraph (A), then such device shall not be considered to be a professional device¹¹. Tim Lee at Tech Liberation Front points out one problem with this exemption: ³Professional² devices, you see, are exempt from the restrictions that apply to all other audiovisual products. This raises some obvious questions: is it the responsibility of a ³professional device² maker to ensure that too many ³non-professionals² don¹t purchase their product? If a company lowers its price too much, thereby allowing too many of the riffraff to buy it, does the company become guilty of distributing a piracy device? Perhaps the government needs to start issuing ³video professional² licenses so we know who¹s allowed to be part of this elite class? I think this legislative strategy is extremely revealing. Clearly, Sensenbrenner¹s Hollywood allies realized that all this copy-protection nonsense could cause problems for their own employees, who obviously need the unfettered ability to create, manipulate, and convert analog and digital content. This is quite a reasonable fear: if you require all devices to recognize and respect encoded copy-protection information, you might discover that content which you have a legitimate right to access has been locked out of reach by over-zealous hardware. But rather than taking that as a hint that there¹s something wrong with the whole concept of legislatively-mandated copy-protection technology, Hollywood¹s lobbyists took the easy way out: they got themselves exempted from the reach of the legislation. In fact, the professional device hole is even better for Hollywood than Tim Lee realizes. Not only will it protect Hollywood from the downside of the bill, it will also create new barriers to entry, making it harder for amateurs to create and distribute video content and just at the moment when technology seems to be enabling high-quality amateur video distribution. The really interesting thing about the professional device hole is that it makes one provision of the bill utterly impossible to put into practice. For those reading along at home, I¹m referring to the robustness rulemaking of section 202(1), which requires the Patent and Trademark Office (PTO) to establish technical requirements that (among other things) ³can only with difficulty be defeated or circumvented by use of professional tools or equipment². But there¹s a small problem: professional tools are exempt from the technical requirements. The robustness requirements, in other words, have to stop professional tools from copying content and they have to do that, somehow, without regulating what professional tools can do. That, as they say, is a tall order. You are a subscribed member of the infowarrior list. Visit www.infowarrior.org for list information or to unsubscribe. This message may be redistributed freely in its entirety. 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