Closing the Analog Hole

On December 16, Congressmen James Sensenbrenner (R-WI) and John Conyers (D-MI) introduced HR 4569, a bill "to require certain analog conversion devices to preserve digital content security measures"—in other words, to mandate that electronic devices and software manufactured after a yet-to-be-specified date respond to a copy protection system or watermark embedded in a video signal and pass that along when converting the signal to analog or vice versa. It also mandates copy protection for analog signals. This is referred to as "plugging the analog hole," since analog signals, even those converted from protected high-definition digital sources, are currently "in the clear" or open for copying. (Standard-definition signals can be protected by systems like Macrovision, but no such protection exists for high-definition signals.)

HR 4569 specifies a system called Video Encoded Invisible Light (VEIL), a system that Consumer Electronics Association vice president Michael Petricone described in November as "largely unknown as to its cost, operation, and licensing status." Petricone said that manufacturers are not necessarily opposed to plugging the analog hole, but he cautioned that the choice of VEIL "in no way represents an industry consensus."

So, if the manufacturers seem uncertain about how VEIL will work, who are the experts who chose the system? The bill was introduced in the House Judiciary Committee, where Sensenbrenner is chairman and Conyers is ranking minority member. The Judiciary Committee does not have jurisdiction over the FCC, so it falls to the US Patent and Trademark Office to approve the yet-to-be-ironed-out details of the plan, including how it will work with the various business models involved and how it will affect the integrity of the signals.

Why should audiophiles be concerned about this video issue? We are concerned because we see fair use under attack by media corporations, and every time we consumers surrender any portion of these rights, we risk losing the rest. We have recently seen one version of the Broadcast Flag legislation proposal that included a "time out" function on time-shifted broadcast recording—which would have represented a significant erosion in the rights upheld in 1984's Sony v Universal Studios Betamax case. We worry that if Congress cedes any of our fair-use rights to the video broadcast companies, the recording labels will use that to further argue their argument that consumers only purchase single-use licenses, not the content itself.

Beyond that, we are concerned about the process of determining the future of a technical format represented by this legislation. We are sure that Sensenbrenner and Conyers are sincere in their desire to protect the copyrights of the broadcast companies, but we wonder if they haven't forgotten the rights of those companies' customers—including the right to experience the highest technical quality of which the high-definition medium is capable. Does VEIL compromise that? We don't know; we can't know. So far, too many questions remain unanswered. We'd like those questions answered before Congress compromises the quality of our broadcasts through precipitous action.

The first rule of holes is to know when to stop digging. The second rule is to be careful what you fill them with. We ask Congress to pay particular attention to rule number two.