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7/11/2007
04:41 PM
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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.

The single-vendor manufacturers were livid at being locked out of the digital TV market. The final report of the consortiumv reflected this -- a few sheets written by the chairmen describing the "consensus" and hundreds of pages of angry invective from manufacturers and consumer groups decrying it as a sham.

Tauzin washed his hands of the process: a canny, sleazy Hill operator, he had the political instincts to get his name off any proposal that could be shown to be a plot to break voters' televisions (Tauzin found a better industry to shill for, the pharmaceutical firms, who rewarded him with a $2,000,000/year job as chief of PHARMA, the pharmaceutical lobby).

Even Representative Ernest "Fritz" Hollings ("The Senator from Disney," who once proposed a bill requiring entertainment industry oversight of all technologies capable of copying) backed away from proposing a bill that would turn the Broadcast Flag into law. Instead, Hollings sent a memo to Michael Powell, then-head of the FCC, telling him that the FCC already had jurisdiction to enact a Broadcast Flag regulation, without Congressional oversight.

Powell's staff put Hollings's letter online, as they are required to do by federal sunshine laws. The memo arrived as a Microsoft Word file -- which EFF then downloaded and analyzed. Word stashes the identity of a document's author in the file metadata, which is how EFF discovered that the document had been written by a staffer at the MPAA.

This was truly remarkable. Hollings was a powerful committee chairman, one who had taken immense sums of money from the industries he was supposed to be regulating. It's easy to be cynical about this kind of thing, but it's genuinely unforgivable: politicians draw a public salary to sit in public office and work for the public good. They're supposed to be working for us, not their donors.

But we all know that this isn't true. Politicians are happy to give special favors to their pals in industry. However, the Hollings memo was beyond the pale. Staffers for the MPAA were writing Hollings's memos, memos that Hollings then signed and mailed off to the heads of major governmental agencies.

The best part was that the legal eagles at the MPAA were wrong. The FCC took "Hollings's" advice and enacted a Broadcast Flag regulation that was almost identical to the proposal from the BPDG, turning themselves into America's "device czars," able to burden any digital technology with "robustness," "compliance" and "revocation rules." The rule lasted just long enough for the DC Circuit Court of Appeals to strike it down and slap the FCC for grabbing unprecedented jurisdiction over the devices in our living rooms.

So ended the saga of the Broadcast Flag. More or less. In the years since the Flag was proposed, there have been several attempts to reintroduce it through legislation, all failed. And as more and more innovative, open devices like the Neuros OSD enter the market, it gets harder and harder to imagine that Americans will accept a mandate that takes away all that functionality.

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