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A Behind-The-Scenes Look At How DRM Becomes Law

Cory Doctorow looks at the back room dealing that allowed entertainment companies and electronics companies to craft public policy on digital rights management.

Then comes the working group meetings, like the BPDG. The BPDG was nominally set up to set up the rules for the Broadcast Flag. Under the Flag, manufacturers would be required to limit their "outputs and recording methods" to a set of "approved technologies." Naturally, every manufacturer in the room showed up with a technology to add to the list of approved technologies -- and the sneakier ones showed up with reasons why their competitors' technologies shouldn't be approved. If the Broadcast Flag became law, a spot on the "approved technologies" list would be a license to print money: everyone who built a next-gen digital TV would be required, by law, to buy only approved technologies for their gear.

The CPTWG determined that there would be three "chairmen" of the meetings: a representative from the broadcasters, a representative from the studios, and a representative from the IT industry (note that no "consumer rights" chair was contemplated -- we proposed one and got laughed off the agenda). The IT chair was filled by an Intel representative, who seemed pleased that the MPAA chair, Fox Studios's Andy Setos, began the process by proposing that the approved technologies should include only two technologies, both of which Intel partially owned.

Intel's presence on the committee was both reassurance and threat: reassurance because Intel signaled the fundamental reasonableness of the MPAA's requirements -- why would a company with a bigger turnover than the whole movie industry show up if the negotiations weren't worth having? Threat because Intel was poised to gain an advantage that might be denied to its competitors.

We settled in for a long negotiation. The discussions were drawn out and heated. At regular intervals, the MPAA reps told us that we were wasting time -- if we didn't hurry things along, the world would move on and consumers would grow accustomed to un-crippled digital TVs. Moreover, Rep Billy Tauzin, the lawmaker who'd evidently promised to enact the Broadcast Flag into law, was growing impatient.

You'd think that a "technology working group" would concern itself with technology, but there was precious little discussion of bits and bytes, ciphers and keys. Instead, we focused on what amounted to contractual terms: if your technology got approved as a DTV "output," what obligations would you have to assume? If a TiVo could serve as an "output" for a receiver, what outputs would the TiVo be allowed to have?

The longer we sat there, the more snarled these contractual terms became: winning a coveted spot on the "approved technology" list would be quite a burden! Once you were in the club, there were all sorts of rules about whom you could associate with, how you had to comport yourself and so on.

One of these rules of conduct was "robustness." As a condition of approval, manufacturers would have to harden their technologies so that their customers wouldn't be able to modify, improve upon, or even understand their workings. As you might imagine, the people who made open source TV tuners were not thrilled about this, as "open source" and "non-user-modifiable" are polar opposites.

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