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The Media Policy Wars

There is a tremendous and silent battle being fought these days, the effects of which could create a culture (locally, nationally, and globally) that is completely beholden to the media giants, even more so than the present. The old-culture industries are engaging with the new digital spaces and internet users on a number of fronts to wrest the rights and uses of emerging technologies in their favor. Since this amorphous collision is taking place in Congress, the courts, and in the regulatory arena, there is a tendency to report the events piecemeal and thus they never quite enter the national stage as pressing issues for the broad citizenry.

The war, as Stanford law professor Lawrence Lessig describes, is about whether the old-culture industries will forge the new internet architecture into their own image, or if the internet and its diverse users will force these media leviathans to re-invent themselves and allow an extensive “innovation commons” to flourish. While the corporations are forming concerted efforts to shape the internet, and thus culture, in their own image, the public, unorganized and often ill informed, is left holding a certain blind faith in their congressional senators and representatives to speak on their behalf. Ironically, it is presumably the responsibility of these very media giants to inform the public about what is taking place.

This stealth collision is taking place at the busy intersection where copyright law, technology policy, telecommunication policy, cultural policy, and the public interest meet. In recent years the culture industries have been successfully lobbying to establish legislated digital technologies to limit both legal uses of, and access to, their copyrighted works. At the same time the Federal Communi-cations Commission (FCC), under Chairman Michael Powell, is lurching closer to further deregulation of all industries under its long reach. Deregulation of the telecommunications industry continues the trend of the past forty years to extend ownership of media into private hands and out of the public’s grasp. During this period, copyright terms have been extended eleven times, with the latest copyright extension being the 1998 Sonny Bono Copyright Term Extension Act (CTEA). CTEA defines the constitutionally permitted “limited time” of exclusive rights as ninety-five years for corporations (from seventy-five years established in 1976), and author’s life plus seventy years for individuals or their estates.

Following are some of the recent events unfolding in the courts, in Congress, and at the FCC. It behooves media arts participants to seize the debate on these issues and to stave off the attempt at suffocating the precious little air given to independent media.

FCC: deregulation and big media
In September 2001, the FCC initiated a “Notice of Proposed Rulemaking” to review two of the media ownership rules. A year later the review was expanded to all six rules. The Telecommunications Act of 1996, which relaxed national broadcast ownership limits, requires the FCC to review its media ownership rules every two years and to justify those rules or, if unable to, to remove them. The FCC has based the standard of whether these rules are necessary within the framework of marketplace competition.

While the all important phrase “serving the public interest” may seem to support diversity and localism, it is clear from the FCC’s actions in the past, such as the examination of digital televion, that the public are positioned as consumers of broadcast television. The questions of diversity become questions of diversity of channels and genres of content, and a ‘democracy’ of television becomes universal access.

On October 1, 2002, the FCC released a series of studies and analyses that serve as a framework for the media ownership proceeding. The FCC sought comments on the studies until 2003. There was an unprecedented number of responses filed by individuals and organizations opposed to media consolidation. The existing rules under consideration are:

National Broadcast Ownership Cap limits any one entity from owning an interest in more than thirty-five percent broadcast licensees in relation to national coverage.

Dual Network Rule prevents major broadcast networks from owning interests in each other.

Newspaper Broadcast Cross-owners limits an entity from owning a broadcast station and a daily newspaper in the same market.

Duopoly Rule limits the number of broadcast stations an entity can own in a particular market.

Local Radio Competition Limits restricts local radio ownership to up to eight stations, depending on total number of stations in a market.

Television-Radio Cross-Ownership Rule prevents one entity from owning both a radio station and a television station in the same market.

The FCC studies are based on policy findings of previous FCC committees that looked to the marketplace for regulatory salves, specifically from the Reagan era under the leadership of Chairman Mark Fowler. The Powell-led FCC is well known for favoring further deregulation as a regulatory policy. The measures for meeting the “public interest” are then based on competition and diversity of programming standards. Powell has stated at various times that competition in the marketplace is sufficient to ensure diversity and thus the “public interest” obligation.

Originally the FCC declined to hold any public meeting on the review but has recently held forums across the country.

The Digital Millennium Copyright Act (DMCA) 1998
The DMCA became law in 1998. The law attempts to codify unauthorized access to, or use of, copyrighted works by restricting the end-user activity, much of which many believe falls under fair use and other unregulated uses of works. The DMCA enjoins individuals circumventing industry encryption devices in order to access works. It further criminalizes the intellectual process of creating and distributing circumvention tools. Pamela Samuelson, a Berkeley law professor, argues that the DMCA was an outcome of the battle between Hollywood and Silicon Valley. She believes that the content industries on the one hand wanted to strictly control their works and ban technologies that have circumvention-enabling uses. Silicon Valley, on the other hand, opposed the broad legislation because of the detrimental effects on their practice of reverse engineering, computer security testing, and encryption research. The end result was the DMCA, a highly unwieldy and incoherent piece of legislation.The apparent far reach of the DMCA has been tested in two cases recently, one a case against the distribution of software (DeCSS) that allows DVD’s to be played on an open-source Linux operating system and another case that involves ElcomSoft, a Russian software firm that designed software to enable access to encrypted works. Russian cryptographer Dmitri Sklyarov was arrested by US federal agents after he presented parts of a paper on “eBooks Security.” Skylarov outlined a program used to disable Adobe’s e-book Reader in order to change content to an easier reading format, for printing or copying. Skylarov was eventually set free with the condition that he testify against ElcomSoft.

In December in San Jose, California, the jury rendered a “not guilty” verdict in the case against ElcomSoft. The jury instructions said that merely offering a product that could violate copyrights was not enough to warrant a conviction. The establishment of this precedent, along with new bills by Rep. Zoe Lofgren and Rick Boucher named the Digital Choice and Freedom Act of 2002 and the Digital Media Consumer’s Right Act (DMCRA), respectively, attempt to restore some of the public’s rights with respect to copyrighted works which have been eroded over the past few years through the use of restrictive technologies and so-called “end-user license agreements.” And significantly, these bills set forth the importance in providing the greatest degree of access to creative works. In other words, although the majority of the discussion focuses on citizens as consumers, there is a tacit understanding that creativity is cultivated best when cultural producers have a certain degree of freedom to build on the past in creating their works, while access to these works is of equal importance in completing the circuits among production, distribution, and consumption of culture.

Digital Rights Management: technological fixes to the problem of copyright

The DMCA set the precedent for attempting to legislate beyond copyright restrictions for the protection of works, although these extended restrictions are now being lessened through the above-mentioned bills. A bevy of approaches to content control is being launched through what is being euphemistically called “digital rights management” (DRM). This tertiary strategy by the content industries in their battle for maintaining control of digital spaces is an attempt to control technologically, under the force of law, uses of their content and thereby uses of other’s content, i.e., independent media. The rationale by the industry is that digital technology has created a digital space where piracy has run amok. Digital copies are perfect reproductions and cost almost nothing to make. Therefore, greater control is necessary for the protection of “intellectual property” (copyrighted works). But public interest organizations such as Public Knowledge, the Media Access Project, the Center for Digital Democracy, the Electronic Frontier Foundation, and law professors at Harvard, Berkeley, Stanford, and other respected universities agree that the content industry is more concerned with regaining control over the uses of copyrighted works in the developing digital environments that will integrate the internet, television, home recorders, and computers. At least two digital rights management systems are being proposed as legislation.

The broadcast flag

One DRM issue, the broadcast flag, is designed to allow content owners to protect their copyrights by marking digital-television programs so that new TV’s, recorders, and computers will recognize the “flags” and limit copying, the purpose being to strictly tether content to specific hardware so that the content can not be digitally redistributed.

The broadcast flag is being championed by the Broadcast Discussion Protection Group, an organization formed from within affected industries (content producers and hardware makers) of the newly arriving digital television environment. The group’s express purpose is to “evaluate technical solutions for preventing unauthorized redistribution” of digital TV content. On August 8, 2002, the FCC formally began considering whether or not to adopt a broadcast flag standard for new digital-broadcast television programs.

This proposal raises questions about how previously unregulated uses of copyright works would be limited or restricted under the broadcast flag. Other questions raised by Public Knowledge, the Consumers Union, and the Center for Democracy and Technology are whether this flag, initially intended for HDTV, might set a precedent and unleash more intrusive DRM technologies into other digital environments such as the internet. The Consumer Broadband and Digital Television Act introduced by Hollings is just such a bill, but its passage is not imminent at this time.

Secure platforms

Another group introducing ideas on technology into Washington is the Trusted Computing Platform Alliance (TCPA), a group with just under two hundred corporate members. Their goal is to create a “new computing platform for the next century that will provide for improved trust in the PC platform.” One piece of software designed to build on the TCPA hardware is Microsoft’s Palladium. What this type of configuration could possibly do is provide a highly secure, trusted environment for systems such as electronic payment. But this type of platform could also function as a “trusted” digital rights management environment where tightly circumscribed pay-for-play uses reduce the general computer to a sophisticated television. In this sense “trusted” means the provider is sure that the user will not be able to leave the technologically specified uses delimited by the provider. Senator Fritz Hollings is also pushing Congress on behalf of TCPA to incorporate this platform as a part of all consumer electronics.

The courts and the Constitution: copyright extensions vs. creative freedom

In the name of creativity and freedom of expression, the Constitution states an intention “to promote the progress of science and useful arts” and grants an “exclusive right” for a limited time to authors and inventors of their respective writings and discoveries. Temporary (limited times) monopoly control and profits that the Constitution lets Congress give to authors, artists, scientists, and corporations (a type of “body”) are important in a society to balance the promotion of creativity and free expression by supporting the creators. Long after Walt Disney’s death, Disney Inc. remains vital and profitable, as does Mickey Mouse, whose films would have started falling out of copyright in this year if the 1998 Sonny Bono Copyright Term Extension Act had not passed.

In the case Eldred v. Ashcroft Lawrence Lessig and others argued to the Supreme Court this past October that the Sonny Bono law violates the Copyright Clause requirement of “limited times,” claiming that if Congress can repeatedly extend existing copyrights, then “limited times” has no valence. Lessig also argued that the law stifles the promotion of creativity, a primary purpose of the Copyright Clause, because it does not allow creative works to build on the past. Extending monopoly rights for existing works does nothing to cultivate the creation of new works building on what came before. Finally, Lessig et al. argued that the law violates the First Amendment by preventing older works from entering the public domain. Although the Supreme Court justices were openly disdainful of the 1998 legislation, they questioned whether the issue was one of unconstitutionality or just bad law.

The decision in Eldred v. Ashcroft was rendered rather swiftly on January 15, 2003. The Supreme Court upheld the CTEA seven to two, stating that congressional power to extend the copyright term was constitutionally authorized. The majority decision by Justice Ruth Ginsberg stated that the court did not have the power to question congressional determinations of copyright law even if the law was bad law. The dissenting opinions by Justice Stevens and Justice Breyer expressed doubts about the majority decision’s deference to congressional policymaking while in other cases exercising judicial power to restrain congressional acts. Justice Stevens stated that if congressional action on copyright law was “judicially unreviewable” then the “basic tenets of our constitutional structure” do not frame the decision.

The independent media arts communities must seize the debate on these issues and expand their roles to include artist/citizen/activist/organizer. Given the sober fact that media concentration is a fait accompli, what remains imperative for independent media activists is vigilance for potential spaces where alternative voices can be cultivated and to speak out about policy that threatens to imperil the limited space for alternatives to corporate media.

For more information on these issues, contact:

AIVF: www.aivf.org/advocacy

Center for Digital Democracy

www.democraticmedia.org

Center for Democracy and Technology
www.cdt.org

Electronic Frontier Foundation: www.eff.org

Media Access Project: www.mediaaccess.org

Public Knowledge: www.publicknowledge.org

This stealth collision is taking place at the busy intersection where copyright law, technology policy, telecommunication policy, cultural policy, and public interest meet.

The war is about whether old-culture industries will forge the new internet architecture into their own image, or it the internet and its diverse users will force these media leviathans to re-invent themselves and allow an extensive “innovation commons” to flourish.

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