Say Hello to Techno-Legal Agony


What could be worse than a gaggle of lawyers determining the fate of broadband content? How about a feud in which engineers duke it out with the aforementioned lawyers to determine what digital America can see?

It's not a pretty picture — and it's a long way from the collaborative vision which held that high technology from the Silicon Valley would mix comfortably with creative sparks from Hollywood to create new and wondrous entertainment. Four years ago, we were calling the alliance "SiliWood."

Those trans-California connections may have evolved with video games and Star Wars Episode 2: Attack of the Clones
(although George Lucas's digital filmmaking takes place geographically closer to Redwood City than to Culver City). When it comes to today's digital TV, broadband and DVD reality, though, the two environments are figuratively worlds apart.


To illustrate SiliWood's dissolution, let's look at a symposium — held, appropriately, at the other end of the country, in Washington. "Silicon Valley vs. Hollywood" ostensibly provided a forum for discussion of the Consumer Broadband and Digital Television Promotion Act, introduced by Senate Commerce Committee Chairman Rep. Ernest "Fritz" Hollings (D-S.C.).

The event was one of at least four such Washington wonk-meets held over the past fortnight, in which highly motivated (i.e. well-paid) lobbyists lobbed criticism at each other's view of copyright protection.

Amid the hand-wringing over how to curtail video piracy, the underlying battle is whether such anti-copying initiatives should be handled by technical barriers or legal restrictions. The latter, of course, requires strong enforcement — for which the technical community does not want to be responsible (i.e. to pay for).

This particular seminar had a convenient head table lineup in which Hollywood lobbyists (such as The Walt Disney Co.'s Preston Padden and Vivendi Universal S.A.'s Matt Gerson) were clustered at one end, while Cisco Systems Inc.'s Jeff Campbell and the Electronic Frontier Foundation's Fred von Lohmann were gathered at the other end. In between were several other electronics, retail and software mouthpieces.

Seated conveniently in the center was Al Mottur, Hollings's top committee aide, who lamented that he's "frustrated," because Silicon Valley doesn't want to help improve or shape the legislation. The tech community wants to kill the bill.

In full salesman mode, Cisco's Campbell proclaimed, "If content companies want to distribute over the Internet, we have the technology available to them today." Emery Simon of the Business Software Alliance added, "Government should not be in the business of dictating what engineers should be working on."

But Padden insisted: "We need to get a reasonably secure environment before 50 million American get used to downloading their movies for free. … There are going to be statutory solutions."

As the legislation — which has virtually no chance of getting adopted this year, anyway — languishes, the underlying problem becomes even more obvious. Some unknown formula for combining technical barriers and legislative direction is necessary, and SiliWood alone is not going to find the answer.

The National Institute of Science and Technology also broached the copy-protection issue as part of its DVD 2002 seminar this month. Keynoter Chris Israel, a deputy assistant secretary of commerce for technology policy, emphasized the value of protecting the U.S. "copyright industry," but did not enunciate any specific policy initiatives. Neither did a panel of lawyers, although they also put their confidence in the legislative approach.

Don't any of these people have adolescent household hackers who can get them a copy of Clones
or Men In Black 2
before the movie is released? Yes, that confirms Jack Valenti's view that we're raising a "generation of thieves," but it's a reminder that legislative finger-wagging or archaic technical barriers aren't going to stop the show on their own.

Missing from most of the current discussion are the cable, telephone company, satellite and retail providers that are part of the digital-programming distribution chain. Those industries are represented in the prolific technocratic process (e.g. the Broadcast Protection Discussion Group and the Copyright Protection Technical Working Group, both of which have just issued inconclusive reports on what to do next). But their input — as with the ideas of all participants — have become part of an incredibly complicated mosaic of demands that is retarding the process.

And as a reminder that the digital copying and distribution process is still a work in progress, keep an eye on developments such as the Etherlinx venture taking shape in Silicon Valley. As The New York Times
described it, a couple of "tinkerers" have created a way to use 802.11b — the "WiFi" broadband technology intended for home networking — as the backbone of a wireless connection that could span 20 miles across town.

Did those Washington lawyers and technical working groups calculate such new transmission prospects into their own copy-protection tinkering?


As the wonks skirmish over techniques to control piracy in the digital world, others continue to prognosticate about the scope of that world — paying scant attention to what will drive its growth. PricewaterhouseCoopers's latest broadband-deployment forecast, released early this month, anticipated 35.3 million broadband households by 2006. That's a sizable audience, albeit one that's about 20 percent smaller than previous projections for that timeframe.

PWC acknowledged that over the next few years, the market for content may grow slowly, thanks to the "burgeoning problem" of piracy. It assumes that the piracy problem itself will be resolved, although the SiliWood feuds don't point to an early or easy conclusion.

Equally significant: What if PWC and its fellow prognosticators are wrong again? Maybe the broadband boom will explode before 2006 — or maybe (and more likely) it will take longer, because of a paucity of programming needed to attract "viewsers."

One of the NIST speakers broached the possibility that new kinds of interactive entertainment will emerge that capitalizes on the broadband platform, and not just today's mainstays, like movies and video games, which are the focus of the copy-protection battle. In lawyerly fashion, he declined to specify possible formats. But that concept is what should fuel the broadband vision — not just the contentious legacy of SiliWood thinking.