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There has been a lot of debate here at dKos in the last 24 hours about the Analog Hole legislation co-sponsored by Representative John Conyers.

As an audio/vidio geek and Hollywood insider, I would like to clear up some misconceptions, and share my take on this bill.

[more below the fold]

First, understand the following:
  1. The DMCA (Digital Millenium Copyright Act) already makes it a serious crime to attempt to decrypt encrypted digital media, whether by software or hardware.
  2. All unencrypted digital media (such as audio CDs and DATs) are being phased out by media giants, and will be replaced by encrypted formats, such as Blu-Ray, Super Audio CD, HD DVD, and file formats by Microsoft, Apple, etc.
  3. Due to Step 1 and Step 2, it will soon be illegal to make a direct digital copy of any mainstream media.
  4. Therefore, the only legal way to make copies of digital media, both now, and especially in the future, is to transfer the media through an analog step, and back into digital.

Step 4 is referred to as the Analog Hole, because until we all have data feeds hooked into our brains, all digital audio and video must at some point be converted into analog, to be fed to our eyes and ears. At that point, it is possible to re-record the audio and video, and end up with an unencrypted, high-quality digital source of the original, without breaking the DMCA.

The legislation in question makes this illegal. Not only does it make it illegal, but it turns your own hardware into the enforcement agency. Imagine having a hammer that could decide on its own, whether or not let you swing at a nail, depending on whether or not you had applied for a building permit. Imagine a can opener that would refuse to open a can of beef stew if your cholesterol was above nominal levels. That's exactly what we're talking about with this legislation.

And be assured that, while these protection techniques are voluntary for the copyright holder, they will become the norm. All mainstream media will be under lock and key.

So why should you care, unless you're a pirate?

Here's why every American who cares about the public exchange of art and ideas should care about this:

All ideas, all art, all intellectual property belongs by default to the public. As a member of the public, you have the assumed right to make unlimited copies of all art and ideas, with narrow, temporary exceptions. Copyright is one of those, and even so, it has its own limitations and exceptions known as Fair Use.

But if this legislation passes, the public domain and fair use will become anachronisms, because no unencrypted copy will exist in the public, there are no copyright sunset provisions in the bill, and there would be no reason for the copyright holder to issue unencrypted copies after the copyright expires.

And once the Analog Hole is plugged, digital rights management can be broadly applied across all formats.

Some examples of how this could affect you:

  1. You own a 2012 HD DVD collection of all six Star Wars films. In the year 2097, these films finally fall into the public domain, and at long last, it is legal for you to make a backup copy of your HD DVDs, if by some miracle they haven't already disintegrated. Unfortunately, it is still illegal, under the DMCA, to crack the encryption on your HD DVDs. So you try to use the Analog Hole to make a copy, running it out the analog cables on your ancient HD DVD player, and recording the signal on your PC. Unfortunately, your PC has been made after the Analog Hole legislation passed, and will not let you make a copy.
  2. It's November, 2008. You are finishing a vodcast (video podcast) for your political blog, featuring CNN video clips from the final days on the campaign trail. But your digital Tivo will not let you copy the clips to your laptop digitally, and your laptop (a brand new Sony) will not accept an analog input of the video, because CNN has protected it.
  3. It's February 2007, and it's your daughter's bat-mitzvah. You take her and her friends out for karaoke, and take along your video camera. Unfortunately, when you get home and try to play the tape, it is blank, because the karaoke video screen told your camcorder not to record, and your camcorder obeyed.
  4. August, 2009. You are a freelance composer, and you stretch your budget to hire a string quartet to play your latest composition in your studio. But when you walk up to the studio, the FBI is walking out with your equipment, and they arrest you, and the musicians. Eventually, you find out that your new intern tried to copy a Blu-Ray disc the night before, and your new digital mixer called the police, who contacted the FBI.

These examples may seem far-fetched, but they are exactly the sort of things that will happen if this legislation passes.

In fact, your very eyes and ears could be illegal. After all, they record analog video and audio, and translate them into digital, without passing along the copy restrictions.

Originally posted to peacemonger on Tue Dec 20, 2005 at 12:44 PM PST.

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Comment Preferences

  •  Tips? Troll Ratings? (4.00)
    Thanks for reading.
  •  This A-hole Bill is not the answer... (none)
    to copyright issues. It is important to find a way for artists and media producers to be compensated for their work. That's a given. But this ain't the way. Current DRM locks can all be circimvented with the right knowledge -- as will any further attempts to solve the issue with technology restrictions.

    There was a good discussion of this bill yesterday in this diary here

    King George is a Uniter. He has United the Rich B@stards Against the rest of Us.

    by CitizenOfEarth on Tue Dec 20, 2005 at 01:12:26 PM PST

    •  I'm sure we will find technological answers, (none)
      but they will all be clearly illegal, with stiff penalties.

      The DMCA, for example, makes it illegal to modify your own hardware! Three men were arrested yesterday in Los Angeles for selling modified XBOXes. These XBOXes could of course be used to run pirated software, but they could also be used to run Linux, for example. The three men were not arrested for violating copyrights. They were arrested for modifying their own hardware. And they will do hard time.

      Curiously, though I heard the news on NPR last night, I have yet to find any link online to the news story.

      -4.88, -7.64 | Hey Congress, keep your hands off my A-Hole!

      by peacemonger on Tue Dec 20, 2005 at 01:54:17 PM PST

      [ Parent ]

      •  Found a link to the XBox story... (none)

        -4.88, -7.64 | Hey Congress, keep your hands off my A-Hole!

        by peacemonger on Tue Dec 20, 2005 at 02:56:59 PM PST

        [ Parent ]

        •  There are two sides to the story (none)

          Cai allegedly equipped the Xbox consoles with modification chips and large hard drives to allow the user to copy rented or borrowed games onto the device for future playback. Buyers would pay from $225 to more than $500 for the changes.

          During the investigation, undercover agents with U.S. Immigration and Customs Enforcement paid $265 to have a modification chip, a hard drive and 77 pirated games installed on an Xbox, according to the criminal complaint.

          It sounds like a Mob run activity. But mostly, I sympathize with the game developers that are not compensated for their work. It takes a lot of time and energy to code a good game title. So why should the Mob get the money for these games.

          King George is a Uniter. He has United the Rich B@stards Against the Rest of Us.

          by CitizenOfEarth on Tue Dec 20, 2005 at 03:24:14 PM PST

          [ Parent ]

  •  I might get trolled for saying this (none)
    but as someone who went to design school for five years, I take great exception to the idea that

    "All ideas, all art, all intellectual property belongs by default to the public. As a member of the public, you have the assumed right to make unlimited copies of all art and ideas, with narrow, temporary exceptions."

    If a designer or artist gives you the priveledge of looking at or hearing their work, it is not a license to do whatever the hell you want with it.  Creating things and coming up with new ideas, new works, and new art is our BUSINESS.  

    I know people don't like to hear this but if a designer or musician creates something, they expect to get paid for it.  I'm more than happy to put my art on a poster and sell it to someone for a fair price, but if they take it to kinkos and make 500 reproductions it isn't fair use, it's stealing.  The same goes for movies, music, or any other creative art.

    If a teacher wants to make a copy of a song from a CD and use it to teach their students how to play the music within the classroom, THAT is fair use. But making copies of the songs and handing them out to anyone who wants them is not.

    Title 17 U.S.C. Section 107 is very clear about this and it is not a permission slip to copy anything and everything that you get your hands on.

    I agree that the laws should not be written so that everything is placed under absolute and total control to the point that no one can share ideas and collaborate, but asking that everything in the realm of IP be placed out in the open for everyone to take is not going to happen.

    (if by "criminalization of politics" you mean politics being taken over by criminals, you are absolutely correct)

    by Drezden on Tue Dec 20, 2005 at 01:15:41 PM PST

    •  Copyright is(was) narrow and temporary (4.00)
      Intellectual property is fiction. The is no natural right to intellectual property, without copyright, there is no intellectual property, and no ownership of ideas.
    •  I Have Been a Musician for Twenty Years (4.00)
      When I create music I do so because I love to.  You are a businessperson and not an artist and that is your choice.  Don't you dare, however, ventriloquize me or any other artist who stands in opposition to every word you wrote here and chooses to create and share our work for the human joy it brings to us and to our audience.
      •  Thats fine (none)
        But there is a distinction between those who create for love or as a hobby and those who create to make a living.

        If you are in it for the joy then by all means share your work with the world.  There are many bands out there that do just that until people notice them and then they make the switch.

        The big thing here is that many creative industries are switching from production focus to service focus and with that comes increased asset protection.  the more ad revenues get tanked, the more people are going to work to protect their other streams of income and look for ways to get more cash out of their products to make up the difference.

        (if by "criminalization of politics" you mean politics being taken over by criminals, you are absolutely correct)

        by Drezden on Tue Dec 20, 2005 at 02:00:27 PM PST

        [ Parent ]

    •  Fair Use (4.00)
      is but a narrow exception on the narrow exception that is copyright. In general, all ideas belong to the public.

      This is not my communist wish, it is not a threat, it is merely hundreds of years of case law. It is why you can use Mona Lisa as a screensaver without paying DaVinci's copyright holders. It is how you can hum a song on a bus without being arrested for copyright violation. It is how you can read and duplicate the works of Plato, of Freud, of Dickens, of Austen, without asking permission first.

      -4.88, -7.64 | Hey Congress, keep your hands off my A-Hole!

      by peacemonger on Tue Dec 20, 2005 at 01:32:48 PM PST

      [ Parent ]

    •  On the other paw (none)
      Most creative workers are not paid for their creations but for the time they take to create it. Their "art", be it music, writing or software, is owned, body and soul, by the companies that employ them. An artist who tries to sell an independent creation that even remotely resembles something they made as work for hire will be sued into penury in a heartbeat.

      The copyright restrictions embodied by the Bono bill and DMCA are the equivalent of killing a mosquito with a cannon. Sure they do the job, but the collateral damage is unacceptable. In some ways it hurts artists because fewer and fewer publishing houses are going republish or distribute works where the ownership rights are less than perfectly clear.

      Ask John Fogerty how well that copyright thing worked out for him.

      •  Work for hire (none)
        is illegal in Germany. You create something, you own the copyright, and it is impossible to give it away.

        I have gotten work-for-hire jobs here in Hollywood that were originally awarded to musicians in Germany, but the corporations didn't want to deal with the copyright issues. Am I proud of taking the work? Not really, but one has to eat. Not sure if I'd do it again, now that I really understand the issue, and can pay the mortgage.

        -4.88, -7.64 | Hey Congress, keep your hands off my A-Hole!

        by peacemonger on Tue Dec 20, 2005 at 01:48:45 PM PST

        [ Parent ]

    •  I agree. (none)
      If we can't find a model to compensate creators for works that are delivered in digital form, fewer people will spend thier life energy to create.

      If I spend a year of my life writing a book, I would expect to be able to merchandize it and make a living from my work. To say it is a stream of electrons on a wire and therefore it should be free, trivializes the effort that went into the work.

      King George is a Uniter. He has United the Rich B@stards Against the rest of Us.

      by CitizenOfEarth on Tue Dec 20, 2005 at 03:03:53 PM PST

      [ Parent ]

      •  This has nothing to do with piracy. (none)
        This is about the public domain and fair use.

        Once the hypothetical copyright lapses on your hypothetical book, it is free. The right to make copies belongs to the public.

        Is Shakespeare's work trivialized because it is free?

        -4.88, -7.64 | Hey Congress, keep your hands off my A-Hole!

        by peacemonger on Tue Dec 20, 2005 at 03:09:58 PM PST

        [ Parent ]

    •  It's an incentive (none)
      I was under the impression that creations are allowed to be copyrighted for a limited time, as an incentive for artists to create additional works.

      It's not a natural right, as I have not seen other rights subject to a time limit.

      Payment is one part, nobody should be expected to work for nothing.  The other part is control of the work, as artists don't like seeing their art used to support things they hate.

      "It's OUR money".no it ain't. It's the Peoples Republic of China's money. You just borrowed it-and anybody want to bet they probably will want it back? -daulton

      by Eric Novinson on Tue Dec 20, 2005 at 03:37:40 PM PST

      [ Parent ]

  •  I've Tried to Raise Hell About These Issues (4.00)
    But they don't get traction.  Ever.  

    The problem is that there are simply too few people that are both creative and aware of the necessity of fair use to carry much political water.  Even John Conyers won't listen to us.  In many cases people who do understand the issue are beholden to the "industrial creativity" centers represented by Hollywood or other intellectual property fiefdoms like Apple and Microsoft or even the pharmaceutical and agriculture industries.  Everyone has been co-opted.  All "valuable" information is being fenced off and culture is just another casualty.

    There is a political solution to this roblem, thankfully.  Create your own media from whole cloth.  Share it freely.  To the greatest degree possible do not patronize the commercial media of oppressive conglomerates.  Spend your time and money instead on media created in a spirit of human expression and exploration by artists, not businessmen.

    Save your soul and let them sell theirs.  That is how you win this battle.

  •  Let freedom ring (none)
    I am not worried about paying for art. I don't mind paying for downloaded music.

    What I want is that technology isn't stifled to protect corportations.

    I want to be able to interoperate my devices.

    I have a comcast DVR tuners that has all these special audio and video outputs. It is turned off however, shut off by comncst, because comcast doesn't want you transferring recorded programs off the set top box.

    I want to be able to do this. As long as I don't take a financial gain, mass produce or mass distribute the material, this should be legal and allowed. The venue in how I legally consume this media should be mine to make. Not Apples, Comcast, Hollywood's or the government's.  

    I want to be able to watch the Lost episode I taped on my DVR on my ipod.

    This is the problem with the DCMA. It is stifiling innovation and technolgy.

    Pirating and mass distribution of copyright material over the web in violation should be stopped. But, that is not my conern.

    we are stifilling innovation and that to me is a no-no. Let the free market dictate how this works out, not government.

    •  Another big problem that (none)
      comes out with this is that every provider views what they offer in different terms.

      Your cable company probably takes the position that by paying the cable bill you are not paying for the programs themselves, just access to view them.  By that interpretation you have no right to transfer the program to your iPod, only to watch it as it is originally broadcast.

      Others (most in the public), will take the view that they are in fact paying for the programs and are entitled to record them by any means they wish.  If its visable on the TV its fair game.

      NBC would prefer that you continue to pay for everything separately because they view the tv show as broadcast media, and the podcast and downloadable media.  In their minds the distinction gives them the right to charge you twice.

      It's all debatable and there are bound to be lawsuits because each party can claim that they are getting shortchanged by someone else.

      (if by "criminalization of politics" you mean politics being taken over by criminals, you are absolutely correct)

      by Drezden on Tue Dec 20, 2005 at 02:12:42 PM PST

      [ Parent ]

  •  the answer is DON'T BUY IT (none)

    Don't buy anything from companies that abuse copyright.  Don't listen to their music, don't watch their TV and movies, etc. etc. "Just Say No!"

    You're not going to die if you don't buy their "entertainment product."  But you will be sending a "market message" that this is unacceptable, and nothing speaks louder in the market than (the absence of) your dollars.

    You won't die of boredom either.  There are plenty of local bands to listen to, independent films to watch, local access TV channels to make use of, and good old fashioned books to read.

    Think of punk rock: a generation of musicians who were sick of overproduced big-label stuff, who took advantage of the technology of their times (4-track recorders and cheap cassette duplication and "underground 'zines").  They did it and they succeeded, and the music industry was forced to sit up & take notice.  

    It can happen again.  All it takes is the will.  You are not a passive recipient.  Be a producer, not a consumer.  

  •  analog hole (none)
    I've studied this a lot - it is one of the larger issues in California.  The goal is to have the media corporations control anything that could possibly allow copying.  I see it as possibly leading to the removal of unsecured hardware and software, and the possession of this equipment becoming illegal.  Not impossible to circumvent but it would make many citizens into criminals.

    I say fight it by giving to libraries.  They have a much better public image than hackers or extreme libertarians, and the ones in California are really underfunded anyway.

    I've read about these events for a long time in Slashdot, The Register, and from people I know.  Interesting to see it here, as I always saw the Democrats as supporting these kind of new laws.  Basically a tradeoff as support from these corporations was seen as not as bad as the ones that fund the Republicans.

    Glad to see it posted here.  Most of the people I talked to about this before were not this familiar with the Democratic politicians, and this is a very complicated issue.  

    "It's OUR money".no it ain't. It's the Peoples Republic of China's money. You just borrowed it-and anybody want to bet they probably will want it back? -daulton

    by Eric Novinson on Tue Dec 20, 2005 at 03:31:04 PM PST

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