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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.

Another was "renewability:" the ability of the studios to revoke outputs that had been compromised in the field. The studios expected the manufacturers to make products with remote "kill switches" that could be used to shut down part or all of their device if someone, somewhere had figured out how to do something naughty with it. They promised that we'd establish criteria for renewability later, and that it would all be "fair."

But we soldiered on. The MPAA had a gift for resolving the worst snarls: when shouting failed, they'd lead any recalcitrant player out of the room and negotiate in secret with them, leaving the rest of us to cool our heels. Once, they took the Microsoft team out of the room for six hours, then came back and announced that digital video would be allowed to output on non-DRM monitors at a greatly reduced resolution (this "feature" appears in Vista as "fuzzing").

The further we went, the more nervous everyone became. We were headed for the real meat of the negotiations: the criteria by which approved technology would be evaluated: how many bits of crypto would you need? Which ciphers would be permissible? Which features would and wouldn't be allowed?

Then the MPAA dropped the other shoe: the sole criterion for inclusion on the list would be the approval of one of its member-companies, or a quorum of broadcasters. In other words, the Broadcast Flag wouldn't be an "objective standard," describing the technical means by which video would be locked away -- it would be purely subjective, up to the whim of the studios. You could have the best product in the world, and they wouldn't approve it if your business-development guys hadn't bought enough drinks for their business-development guys at a CES party.

To add insult to injury, the only technologies that the MPAA were willing to consider for initial inclusion as "approved" were the two that Intel was involved with. The Intel co-chairman had a hard time hiding his grin. He'd acted as Judas goat, luring in Apple, Microsoft, and the rest, to legitimize a process that would force them to license Intel's patents for every TV technology they shipped until the end of time.

Why did the MPAA give Intel such a sweetheart deal? At the time, I figured that this was just straight quid pro quo, like Hannibal said to Clarice. But over the years, I started to see a larger pattern: Hollywood likes DRM consortia, and they hate individual DRM vendors. (I've written an entire article about this, but here's the gist: a single vendor who succeeds can name their price and terms -- think of Apple or Macrovision -- while a consortium is a more easily divided rabble, susceptible to co-option in order to produce ever-worsening technologies -- think of Blu-Ray and HD-DVD). Intel's technologies were held through two consortia, the 5C and 4C groups.

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