Cablecaster, February 2001

Consumer Window

The "other" IP

Intellectual Property protection is being taken to the extreme, much to the chagrin of tech-savvy consumers

By Christopher Weisdorf, Rogers @Home Users Association

While this column tends to focus on technical issues within the consumer broadband Internet space, for this edition I intend to stray from my standard fare in order tackle a topic of enormous importance: intellectual property.

The intellectual property field is a diverse one, touching almost every element of our society. Consumers and corporations, as well as individual artists, scientists, engineers, musicians and writers -- basically anyone who buys or sells information -- are becoming increasingly affected by developments within the sphere of this IP.

As more and more information becomes assimilated into the digital realm, the rules and regulations surrounding the protection and dissemination of that information grow to be more stringent and restrictive. It's the consumer, above all, who has realized the brunt of the consequences stemming from these restrictions.

Since the 1970s, laws surrounding intellectual property have been written and rewritten to accommodate changes in the various technological, political and sociological landscapes. The initial updates were designed to protect IP authors from exploitation by plagiarists and those wishing to gain profits at the authors' expense. Later changes were exercised in order to reinforce control over the proliferation of the works of those authors.

Particularly with the evolution of technology, these laws had to be amended so that they were able to protect against new methods of distribution that were now possible. The Audio Home Recording Act (AHRA) of 1992 and the Digital Millennium Copyright Act (DMCA) of 1998 were enacted for these reasons, among others. Now, at the onset of the 21st century, these laws will undoubtedly go through further changes in order to catch up with the technological leaps and bounds since.

It should come as no surprise then, that perhaps the single, biggest question surrounding the conception and implementation of such change is: "How far should we go?". Can a proper balance between corporate control of IP and consumer satisfaction be struck? What needs to be done to ensure IP protection?

The problem is that some of the newest copyright protections have gone too far and carry draconian implications when approached from a consumer standpoint. One of the greatest threats posed to consumer freedom is the right to "Fair Use" of the purchased media. This doctrine allows one to do as they see fit with that media, so long as it isn't made available to others who are not in legal possession of the same media. New copy protection and reverse engineering measures, unfortunately, ensure that consumers can no longer do as they please with their own purchased goods. Please note that the word copy, not copyright was used in the prior sentence. There is a world of difference between the two.

Copyright protection was brought about to allow the authors of various forms of IP to receive due credit and compensation for their work. On the flip side of that coin we have copy protection, which allows for no more than complete control over the IP in question. The rights of the consumer to do as they choose with the property they have purchased, are forsaken under this measure. The consumer cannot be trusted to obey the law on their own and instead, copy protection schemes have been brought about which supposedly obey the law on their behalf.

With respect to television, namely that of the digital variety and its high definition cousin, these copy protection mechanisms are sure to yield the most undesirable consequences. Preliminary measures, prompted by the U.S. Federal Communications Commission regulation and constructed by CableLabs, allow television intellectual property holders the right to prevent copying of their work. No longer will the consumer be able to record such programming under this brand new, copy protection-enabled viewing equipment. Indeed, both the coming digital televisions and recording equipment will incorporate these restrictions.

What must be considered above all else -- which has been heretofore ignored -- is how receptive consumers will be to these limitations once they are brought to market. Thus far, there are only a few products which sport these restrictions. The majority of these products play compressed audio and boast compliance with the Secure Digital Music Initiative. The only major litmus test in the television world with copy protections came with Circuit City's "DiVX", or Digital Video Express, an alternative to DVD. It debuted in 1998 and died within a year, following an aggressive marketing effort. Circuit City lost a mere US$100 million in its write-off of DiVX, which may be a harbinger of things to come. At the very least, this example illustrates the significant risks and intense consumer enmity associated with the introduction of such copy protections to intellectual property.

It should also be of note that these copy protection schemes can slow the adoption of the underlying technologies they are associated with. Case in point, a brilliant technology known as IEEE 1394, or "firewire", has been irreparably damaged by the implementation of said schemes. It is unlikely that consumers will ever embrace firewire for this reason, although it is far superior to USB (universal serial bus), the competing technology. The Sony Music Clip, another existing product riddled with similar limitations, has faired very poorly up to this point with consumers.

If it is the bottom line that is motivating the implementation of these excessive and unreasonable copy restriction schemes, then their past acceptances and rejections by consumers would best be honored. Failing that, any vendors wishing to build these measures into their products are exposing themselves to unnecessary and foolish risk. After all, what is there to do when consumers simply refuse to buy products because of the inherent limitations built into them? Proprietors of coming HDTV equipment should be especially mindful of this, considering the countless setbacks this technology has already weathered.

It must be stated that in the zeal to reinforce and re-implement existing intellectual property laws, some seem to have overstepped ethical bounds in their quest. At this point, the incorporation of these copy protections can be seen to be slowly headed out of control. Personal computer hard disk drives and monitors may soon contain these protections. Computer software will contain remote shutdown features, which could be activated by vendors at their discretion. The adoption of certain promising technologies has been delayed or ceased because of this. Digital and high definition television may be next. There is a clear and healthy demand for this kind of technology right now. So long as consumers are provided with what they want, it should continue that way. Annoying consumers with restrictive and confusing copy protection schemes will not only slow growth, but it may downright halt it. Past mistakes should not have to be repeated in order for this lesson to be learned.

Remember, there are plenty of existing products out there. Unless consumers see a very compelling reason to move to a new platform or technology, they will stick with the existing offerings. In this case, regardless of any great benefits this next generation of technologies might yield, I'm afraid that the limitations outweigh them all.

Christopher Weisdorf is the president and technical director of the Rogers @Home Users Association,

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