The Professional Device Hole

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 termŒŒprofessional 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 ŒŒprofessional 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

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

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.

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