Adobe Pushes DRM for Flash

The immense popularity of sites like YouTube has unexpectedly turned Flash Video (FLV) into one of the de facto standards for Internet video. The proliferation of sites using FLV has been a boon for remix culture, as creators made their own versions of posted videos. And thus far there has been no widespread DRM standard for Flash or Flash Video formats; indeed, most sites that use these formats simply serve standalone, unencrypted files via ordinary web servers.

Now Adobe, which controls Flash and Flash Video, is trying to change that with the introduction of DRM restrictions in version 9 of its Flash Player and version 3 of its Flash Media Server software. Instead of an ordinary web download, these programs can use a proprietary, secret Adobe protocol to talk to each other, encrypting the communication and locking out non-Adobe software players and video tools. We imagine that Adobe has no illusions that this will stop copyright infringement -- any more than dozens of other DRM systems have done so -- but the introduction of encryption does give Adobe and its customers a powerful new legal weapon against competitors and ordinary users through the Digital Millennium Copyright Act (DMCA).

Recall that the DMCA sets out a blanket ban on tools that help "circumvent" any DRM system (as well as the act of circumvention itself). When Flash Video files are simply hosted on a web site with no encryption, it's unlikely that tools to download, edit, or remix them are illegal. But when encryption enters the picture, entertainment companies argue that fair use is no excuse; Adobe, or customers using Flash Media Server 3, can try to shut down users who break the encryption without having to prove that the users are doing anything copyright-infringing. Even if users aren't targeted directly, technology developers may be threatened and the technologies the users need driven underground.

Users may also have to upgrade their Flash Player software (and open source alternatives like Gnash, which has been making rapid progress, may be unable to play the encrypted streams at all). Third-party software that can download Flash Video, like the most recent RealPlayer, will also break. But Adobe now has an incentive to push the use of DRM: it's only available to sites that use Flash Media Server 3 software, which starts at over $4,000 (with extra fees depending on the number of simultaneous streams).

Furthermore, the prospect of widespread adoption of DRM restrictions on Flash threatens to squash a growing tradition of expressive fair use of online video -- a practice effectively in its infancy that, left unfettered, would be a dynamic solution to our failing effort to teach media literacy. Before we understand how to read media messages, we must first learn how to speak their language -- and we learn that language by playing with and remixing the efforts of others. DRM, by restricting the remixing of Flash videos, stands to bankrupt a rich store of educational value by foreclosing the ability of students and teachers to "echo others" by remixing videos posted online.

Take the example of "A Vision of Students Today" vs. "(Re)Visions of Students Today". The first "Vision" YouTube video is an artful critique of higher education's failure to come up with new models of instruction that engage the modern student; the second "(Re)Vision" YouTube video is an incisive observation of higher education's crisis in diversity (summarily expressed by the lack of diversity in the original "Vision" video). The original and the remix support each other to instruct with an influence above and beyond the power of either video alone.

Outside the halls of academia, we can see that the ability to openly download and remix video is part of a new ecosystem of amateur entertainment -- watch Drama Prairie Dog and its countless responses:

• "Dramatic Prairie Dog vs. Kung Fu Baby (Best Remix Ever)"
• "Hollywood Zombies Dramatic Prarire Dog"
• "Dramatic Look Bond Remix"
• Drama Prairie Dog - Zoolander
• "Drama Prairie Dog -- Kill Bill"
• (an obligatory Star Wars-related remix) "Darthmatic Chipmunk"

As we noted above, remixers who find and use tools that break the Flash Video encryption could be sued, even if their transformative creations would otherwise have been fair use.

Finally, there's a classic suite of arguments against DRM that will be as true for online video as they were for music. DRM doesn't move additional product. DRM is grief for honest end-users. And there's no reason to imagine that new DRM systems will stop copyright infringement any more effectively than previous systems.

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2008: DRM continues to punish paying customers

Just three days into the new year, we have another example of DRM punishing paying customers, rather than "pirates." Netflix subscriber Davis Freeberg ran headlong into an incompatibility between Microsoft DRM and ... Microsoft DRM.

The trouble all started when Freeberg bought a new monitor for his Vista computer. When he decided to watch streaming movies from Netflix, Netflix documentation warned him that the recommended means of fixing a problem with DRM-restricted Netflix programming "may remove licenses to other content using Microsoft DRM" -- including, in particular, restricted programming he had already purchased through Amazon Unbox. Trying to resolve this problem just got Freeberg a tech-support runaround, with each company involved pointing the finger at another.

Tech support problems are not unfamiliar to PC users, but where did this problem come from? Freeberg was just trying to use a new monitor with his computer; his reward, apparently, was broken DRM software, which couldn't be sure the new monitor met movie studios' arbitrary requirements (or perhaps just couldn't be sure whether it could be sure). Furthermore, the DRM industry -- which has already spent countless engineer-hours making "approved" and "licensed" products (seemingly at the expense of "compatible" and "interoperable" devices) -- couldn't even offer Freeberg a clear path out of this jam.

Is this mess stopping copyright infringement? Nope -- it's still easy to copy media and easy to find unauthorized copies. In fact, one commenter points out that the easiest "fix" for Freeberg's trouble appears to be downloading the movie from an unauthorized torrent tracker.

Freeberg's conundrum is likely the product of the Protected Media Path (PMP) (mis)features that have been added to Microsoft's Vista operating system. Thanks to PMP, Vista computers can now "audit" the video outputs, supposedly to ensure that only "authorized" (aka DRM-laden) video boards and monitors can receive Hollywood content. Unfortunately, these kinds of (mis)features generally (1) don't stop pirates and (2) result in compatibility headaches for paying customers.

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Flags through Senate Committee Stage

While the Senate floor was rejecting one flag
amendment, the Senate Commerce committee was letting another two&#8212the broadcast flag and audio flag&#8212slip
by. Senator Sununu spoke strongly against the flags, noting that we don't need technology mandates that inject federal bureaucrats into technology design decisions, but chose ultimately to withdraw his amendments to remove the audio and broadcast flags from the larger telecom package. But he said he may
propose to remove them again when&#8212or if&#8212the bill reaches the Senate
floor.

The bill still has
another day of mark-up in committee, focusing on the controversial
network neutrality proposals. But they won't be revisiting the flags. So, if the committee ultimately passes a telecom reform bill, the flags will be in it.

The good news for now is that the bill's chief sponsor, Senator Ted Stevens (R-AK), is
having second thoughts about the wisdom of sending the bill to the floor for a vote. "We have to get 60 votes, we don't have them right now," he told reporters after the mark-up hearing (60 votes are needed to defeat a filibuster in the Senate).

Meanwhile, in the House, the matching committee held hearings on
the broadcast flag and audio flag. If
the flags get past the Senate, they'll have to pass muster in the House, too.
The MPAA and the RIAA sat on one side of the argument; satellite radio makers,
broadcasters, consumer electronics manufacturers and public interest groups on
the other. The best line? Gary Shapiro of the Consumer Electronics
Association:

"We have to stop measuring creativity by the financial interests of ten
companies."

Let your senators know what these technology mandates will do to the
creativity of technologists, tinkerers, and the rest of us. Write to them now, and
tell them to vote against the flags, and stand against S.2686, the Stevens
telecom bill.

UPDATE: The Senate committee also apparently added a web labeling provision to the telecom bill during today's mark-up session. According to news reports, this provision would regulate the inclusion of sexually explicit material on web pages through restrictions on top-level homepages and labeling requirements on other pages.

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Telecom Log Jam - Broadcast Flag Decision Postponed

As if it wasn't convoluted enough, the 159-page Stevens telecoms reform bill -- which now includes broadcast and audio flag provisions -- got buried under an avalanche of 200 proposed amendments today. At the markup committee meeting, senators became quickly mired in discussions over a tiny fraction of these proposals. The remainder of the amendments -- including Senator Sununu's proposal to throw out the flags wholesale -- were postponed until next Tuesday.

It's certainly getting messy in there. With Senator McCain proposing that the broadcast flag be tied to broadcaster support for a la carte cable channels, and heavyweights like Intel balking at the current language, even the flag's proponents may be having second thoughts about entering this cauldron of competing special interests.

If you have a senator on the Commerce committee, keep calling or writing to tell them to do the sensible thing, and snip out the extraneous flags from an already overcomplex bill.

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Call Your Senator NOW to Throw the Broadcast and Audio Flags Out

The RIAA and MPAA have been jostling to get the
broadcast flag and audio flag into the monster telecom reform bill. These are two of the bills that our recent Corruptibles animation describes -- not futuristic theories about what Hollywood could do, but actual laws being considered right now.

The flags got into Senator Ted Stevens' (R-AK) bill, which is being considered in committee tomorrow (Thursday). But Senator John Sununu (R-NH), who peppered the MPAA and RIAA with tough questions when they spoke to the committee, has filed an amendment to get the flags thrown out. This amendment has a legitimate chance -- Democrats are angry at the anti-consumer tone of the final bill, and Republicans are chafing at the entertainment industry's yearning to over-regulate another market.

If you're in the states listed below, call your Senator NOW, and ask him or her to support the Sununu amendment to remove both TV and audio flags (he also has an amendment to modify the audio flag, so be clear you want to kick out both flags). If your Senator is a Republican, emphasize the danger of giving the FCC extra regulatory powers. If your Senator is a Democrat, emphasize how bad this is for consumer rights. Either way, tell them that entertainment industry powergrabs have no place in a telecom reform bill, and they need to be kept out.

Chairman Ted Stevens (AK), (202) 224-3004
John McCain (AZ), (202) 224-2235
Conrad Burns (MT), Main: 202-224-2644
Trent Lott (MS), (202) 224-6253
Kay Bailey Hutchison (TX), (202) 224-5922
Gordon H. Smith (OR), (202) 224 3753
John Ensign (NV), (202) 224-6244
George Allen (VA), (202) 224-4024
John E. Sununu (NH), (202) 224-2841
Jim DeMint (SC), (202) 224-6121
David Vitter (LA),(202) 224-4623
Co-Chairman Daniel K. Inouye (HI), (202) 224-3934
John D. Rockefeller (WV), (202) 224-6472
John F. Kerry (MA), (202) 224-2742
Barbara Boxer (CA), (202) 224-3553
Bill Nelson (FL), (202) 224-5274
Maria Cantwell (WA), (202) 224-3441
Frank R. Lautenberg (NJ), (202) 224-3224
E. Benjamin Nelson (NE), (202) 224-6551
Mark Pryor (AR), (202) 224-2353

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Two Flags, One Train Wreck

The story so far: the broadcast flags, both video and audio, have been wandering the halls of Congress, looking to smuggle themselves into law, like tramps looking for an empty boxcar. For nearly a year, neither the MPAA and RIAA have been able to find them a ride. The MPAA failed to introduce the broadcast flag language into an appropriations bill, or the reconciliation bill, nor could they sneak it into last year's urgent digital television transition bills. The RIAA's audio flag has been rebuffed at every turn.

But early this week, Senator Ted Stevens (R-AK) introduced a long awaited 125-page draft reform of the Communications Act to the Senate Commerce Committee last week, and both flags found their lift. With telecom reform likely, it's critical that you take action now to stop these dangerous proposals from coming along for the ride.

(Read on for more after the jump)

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Your Tax Dollars at Work ... for Viacom

The Washington DC legal newspaper, Legal Times, is reporting (sorry, subscription link) that Kevin Murphy, a legislative aide to Senator Gordon Smith (R-Ore.), has recently taken a job with cable and film giant Viacom. Senator Smith, you may remember, is one of the Hill's leading proponents of the broadcast flag. Smells fishy, you say? Legal Times thinks so, too:

In a potential conflict of interest, a legislative assistant to Sen. Gordon Smith (R-Ore.), who is currently sponsoring legislation limiting the use and distribution of digital broadcasts, has been hired by media giant Viacom
Inc.

In January, Smith drafted the Digital Content Protection Act, which calls for wider use of "broadcast-flag" technology, a code inserted into digital audio or visual transmissions that limits the ability of consumers to redistribute that content. Broadcast-flag technology is opposed by many consumer groups but has broad support in the entertainment industry. The bill has not been formally introduced.

Keith Murphy, a legislative aide to Smith who has worked closely on the legislation, is scheduled to begin work for Viacom at the end of April. Viacom's subsidiary, Paramount Pictures Corp., is a member of the powerful Motion Picture Association of America, a forceful advocate for the broadcast-flag proposal.

Whether it's actually a conflict of interest or not, it sure has the appearance of impropriety.

Murphy, of course, is not the only government insider who has ended up working for the entertainment industry right after carrying water for the industry while in government. David Israelite, right before taking the top job at the National Music Publisher's Association (NMPA), was head of a DoJ task force that recommended stiffening federal criminal enforcement of copyright laws. And perhaps most infamous is Mitch Glazier, who turned up working at the RIAA soon after he shepherded a change into the Copyright Act's "work for hire" provisions that would have benefited record labels at the expense of song-writers.

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History and Senator Stevens' iPod

Yesterday's Senate Commerce Committee hearing on the Broadcast Flag--and its younger, brattier, brother, the RIAA's proposed "Audio Flag"--swung a little wildly from its pre-ordained course.

It began with committee chairman Senator Stevens and Senator Inouye, his Democrat counterpart, declaring, as with all good anti-piracy measures, that Something Had To Be Done, and that Congress should pass the flag as soon as possible.

The agenda seemed set. In the face of it, those who objected to the Broadcast Flag--technologists, librarians, and civil libertarians--were forced to spend much of their Congressional time requesting narrow exceptions that might lessen its damage.

Then two things happened...

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Your Artist Remuneration Dollars at Work: Broadcast Flag Update #3

The story so far: the MPAA's multi-million dollar travelling
salesmen had descended on Washington, pitching and wheedling to get the Broadcast
Flag language, which would give Hollywood control of your digital TV and a
veto on future TV tech, into law.

In the House, the MPAA shenagled twenty representatives to support the Flag in the House Commerce Committee. But that's not a majority and support is
wobbly. Following your
letters and phone calls to members of the committee, opposition has firmed
up and, apparently, after reading one long explanation from one expert voter,
at least one representative regrets signing the MPAA's letter.

In the Senate, Hollywood took a less direct path: hitch a ride on the
fast-track budget Reconciliation bill, as amended by MPAA-friendly Senate
Commerce committee members.

That Flag amendment was due to happen tomorrow. The word is that the MPAA is in trouble. Thanks to the work of you and our Washington friends, committee
members have grown concerned about the MPAA's plan to attach a
non-budgetary amendment to the Reconciliation Bill. Unless the bonuses of
Hollywood lobbyists are considered part of the budget, there's no way the Flag
could be considered eligible.

After failing in the market, the courts, and last June's Appropriations bill,
it's yet another defeat for the Flag-wavers. But the MPAA's lobbyists are
nothing if not tenacious—so what's their "Plan D"?

One potential ploy would be to introduce a separate bill containing the Flag.
What we're hearing, however, is that the MPAA—still fearful of fair-use
amendments and compromises—is keeping to its policy of sneaking its
language into other legislation.

So, if they don't get their amendment through tomorrow because of a bunch of
letter-writing Net users, they're going to push for putting in a last-minute
amendment to the Reconciliation bill on the Senate floor.

You have to say this for Hollywood: they don't lack for chutzpah. It only
takes one senator to challenge a
non-budget item amendment in the Reconciliation Bill. If the Senate Parliamentarian
agrees with the challenge, the item can only stay with the support of a
super-majority of sixty senators. It'd be like surviving a filibuster.

In other words, if this is true, the MPAA is betting they have more senators
on their side than the President of the United States has on his.

We'll see what happens. Congressional thrill-seekers can watch the webcast
of the committee hearings tomorrow (Thursday, October 20) starting at 2:00 p.m. EST (11:00 a.m. PST). Watch out for mention of the Broadcast Flag. Whether it turns up or not, the scene will be set for this to move from this Committee and out to the wider Senate: a chance, hopefully, for everyone to make their voice heard.

Update: No Flag! The committee chair did comment on the backroom wrangling over non-Budget items in the bill. There was a suggestion that outstanding, controversial items - perhaps including the Flag - might be moved to a separate bill as early as next week.

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Stopping the Signal: Broadcast Flag Update #2

Not long ago we updated you on the MPAA and RIAA's shenanigans to smuggle the Broadcast Flag through the United States Senate. Those who paid attention during "Schoolhouse Rock" will realize that's only half of the duo's burden. To make the Flag law, they must march it past the House of Representatives, too.

Now the second shoe has dropped: 20 members of the House sent an open letter to Congressman Fred Upton, Chairman of the House Subcommittee on Telecommunications and the Internet (part of the House Committee on Energy and Commerce), and its ranking member, Edward J. Markey. All 20 pledged their allegiance to the Broadcast Flag.

The letter is short, with a single substantive talking point. If Congress doesn't deliver a Broadcast Flag pronto, warns the letter, content producers will abandon free, over-the-air broadcast TV.

To pound home this dire threat, the phrase "free, over-the-air television" is repeated no fewer than eight times - with four repetitions in four consecutive sentences. It's a little like the local racketeer rustling up extra protection money by emphasizing over and over how beautiful your precious Ming vase is, and what a tragedy it would be if anything were to happen to it.

But no matter how many times this threat is repeated, it's not even close to credible. The corporations that make up the MPAA have been threatening to boycott digital TV for years, without ever actually managing to stop broadcasting. Of course, Mr. Upton doesn't really need convincing, anyway. He's already gone on record as supporting the Broadcast Flag.

So why are 20 House representatives writing him a public letter? Because Mr. Upton is the one who needs a show of support.

You see, it appears that the MPAA and RIAA may have a problem with the House of Representatives.

The driver of digital TV legislation in the House is Joe Barton, Chairman of the Commerce Committee. And if what we hear through beltway back channels is true, Barton wants a deal. He believes that if the MPAA wants the Broadcast Flag in his bill so badly, it should be willing to compromise.

But the MPAA is in no mood for discussion. It wants to ram this bill through as quickly as possible, and it's leaning on Upton to stay the course. The letter is a way of saying that Upton isn't alone.

Fortunately for us, the fact that 20 out of 57 committee members support the Flag sends a message the MPAA doesn't want anyone to hear: the Broadcast Flag is controversial. If it wasn't, no one would be writing open letters to anyone else. And that means this committee has a duty to engage in serious, careful, comprehensive discussion and debate before the Flag legislation goes anywhere.

The Hollywood lobbyists are tallying their support, but they don't have the majority of the committee convinced. Do your part: tell your representative that you and your fellow constituents won't stand for the Broadcast Flag, especially without a hearing showing evidence that anyone but the MPAA and RIAA supports it.

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