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The FCC puts the MPAA on hold

December 30, 2008 |  5:33 pm

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Looks like Hollywood isn't going to unleash selectable output control, a controversial anti-piracy technique, any time soon.

The MPAA had sought the Federal Communications Commission's permission to use selectable output control on a new type of service to be offered by cable and satellite TV operators: movies made available on-demand shortly after they debuted in theaters, well before they were released on DVD. Studios could use the new technique to turn off the analog outputs on cable or satellite receivers, allowing the movies to be transmitted only through encrypted digital outputs. Closing the so-called "analog hole" would make it harder for people to make pristine digital copies of the movie. But it would also prevent consumers who have older TV sets, which weren't equipped with encrypted digital inputs (including early HDTV models), from taking advantage of the new service.

According to Broadcasting & Cable magazine's website, Federal Communications Commission Chairman Kevin Martin said today that he didn't support the MPAA's petition, which means the studios will have to try again with Martin's replacement. Although Martin's term on the FCC won't expire until 2011, he's expected to give up the commission's gavel long before then. His (GOP) majority on the commission evaporated today, when fellow Republican Commissioner Deborah Taylor Tate attended her final formal meeting.

Martin was a member of the commission in 2003 when it barred the use of selectable output control on existing TV services, such as premium cable or video on demand. The commission left the door open to future use of the technology in connection with new business models that served the public interest. In its petition in May, the MPAA argued that it had come up with just such a model: making movies available for home viewing significantly earlier than before, probably at a premium price. The transmissions posed a greater risk of piracy than conventional video-on-demand services, which tend to offer films weeks after they've been released on DVD. That's why the MPAA sought a higher level of protection.

Consumer groups warned that Hollywood was maneuvering to control the type of anti-piracy technology used in home entertainment gear, as well as to roll back consumers' ability to pause, delay and move the content they pay for. But according to Broadcasting & Cable, Martin was more concerned about the new technology interfering with efforts to promote competition in cable and satellite equipment.

There may be a middle ground here. The studios would agree not to exert any control over the exact techniques used to close the analog hole, allowing tech firms and consumer electronics manufacturers to innovate and compete. The latter, in turn, would agree to equip their gear with protected digital outputs that met a performance standard overseen by the government. Studios and manufacturers struck a similar deal when negotiating the short-lived "broadcast flag," which a federal appeals court struck down in 2005.

Some consumer advocates, however, don't want to cede any ground to Hollywood in the battle over anti-piracy technologies. That's because they don't want the studios to cobble together, piece by piece, a system that would give them more control over where and when people watch movies and TV shows, and how much they have to pay for the convenience of recording, storing and moving them around home networks. Tellingly, the MPAA's petition notes that the studios may use selectable output control on downloadable movies and some high-definition Blu-ray discs. Activating selectable output control in cable and satellite set-top boxes would add one more piece to the system the studios covet: one that delivers movies securely to TV screens at home, with no easy way to record them. That's not necessarily a bad thing for consumers -- in fact, it could even be a good thing if it makes high-quality fare available in the home sooner, and at the right price. The risk, though, is that once the secure pathway is in place, it won't be an additional way to get movies -- it will become the only way.

-- Jon Healey

Healey writes editorials for The Times' Opinion Manufacturing Division.

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