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May 2003|The furor over the broadcast flag for copy protection of digital content—the bane, basis, or necessary evil of the DTV rollout, depending on whom you ask—emanates from Hollywood's fear of repeating another unpleasant chapter in digital entertainment history: the audio CD debacle of the early 1980s. When the Red Book standard for audio CD was released, its authors ignored copy protection since it was assumed that only legitimate consumer electronic devices would be accessing the discs. Alas, technology has evolved and unsavory characters can now obtain software to rip tracks from unprotected CDs and use peer-to-peer software potentially to sell or share illegally copyrighted content with millions of other users. While the studios fret about supposed staggering losses due to Red Book piracy, law-abiding consumers have been using the same ripping tools for legitimate purposes such as making archival copies or transporting the music to different media such as portable players. In fact, the widespread availability of CD ripping software and VCRs have caused most consumers to assume that they have a legitimate right to make backups of any audiovisual content they may own. These assumptions have been reinforced by the U.S. Copyright Act of 1976 and subsequent U.S. Supreme Court decisions. Section 107 of the U.S. Copyright Act defines the Fair Use doctrine. Fair Use permits consumers, under certain circumstances, to make partial or complete copies of copyrighted work even if the copyright holder has not given them permission. In general, there are four principles that dictate whether Fair Use is applicable: the purpose and character of the work, nature of the work (i.e., commercial or non-commercial), amount used, and effect on the market. Unfortunately, these criteria are subjective and, consequently, Fair Use applications often require court interpretation. From a consumer electronics standpoint, the most important Fair Use decision was the 1984 U.S Supreme Court case: Sony Corp. v Universal City Studios (a.k.a. the Betamax decision). This case arose because the studios were petrified that Betamax, an early competitor to VHS, would ignite a massive increase in piracy. Consequently, they entered court proceedings hoping to block its sale. In the Betamax decision, the Supreme Court defined the Betamax principle that permits a technology to be deployed when it has "substantial non-infringing uses." In other words, even if a technology could be used for piracy, it is deployable if there are legitimate Fair Use applications for the technology. No Fair!
However, these Fair Use rules may change with the advent of HD security protocols such as HDCP and DTCP (See deCarmo's "Changing of the Guard," www.emedialive.com/r5/2002/decarmo11_02.html). For instance, HDCP secures digital video interfaces such as DVI and HDMI and absolutely prohibits recording (it is playback-only). Therefore, there is no legitimate Fair Use of HDMI (beyond playback in its original delivered form), since content transmitted over this interface can't legally be copied. While HDMI precludes any form of recording, a DVI-based device may still have Fair Use applications. Such a system could contain other interfaces, such as IEEE 1394 (a.k.a. Firewire), which can be used for recording. DTCP is the preferred 1394 security protocol, and unlike HDMI, it tries to balance Fair Use principles while preserving content owners' rights. To obtain this balance, DTCP offers four modes of operation (Copy Free, Copy Once, Copy No More, and Copy Never), each of which has differing Fair Use attributes. Copy Free status means that there are no restrictions to the number of copies a viewer can make. Consequently, this particular classification is Fair Use-friendly. Copy Once enables the viewer to make a single copy for archival purposes. While this is more restrictive than Copy Free, it is still possible for the user to exercise the rights granted them in copyright law. Copy Once content morphs into Copy No More after a copy is made. Therefore, from a Fair Use perspective, Copy Once and Copy No More content are equivalent. Unlike the other DTCP options, Copy Never prohibits copies. It is expected that Copy Never will be used on at-risk content (e.g., major movie releases or other content that is likely to be pirated). While Copy Never thwarts pirates, it also deprives honest users of their ability to make copies for legitimate purposes. Thus, if the content is marked Copy Never, you can't make a copy on digital interfaces. Furthermore, if the Copy Never stream is Macrovision-encrypted (which is likely), it's impossible to make an analog copy with a VCR. Consequently, in next-generation set-top boxes that enforce copying restrictions, the studios have the ability to completely lock down the box and eliminate any Fair Use application.
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