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Re: The Devil Is In the Absence of Details
by
Bruce Boyden
I am no longer involved in the discussions and no longer speak for any of the players, but I think the idea that they are dictating technology policy and design to Microsoft, Intel, Thomson, etc. would strike content industry negotiators as bitterly amusing. Those companies are all 800-pound gorillas that take orders from no one. Of course, that does not mean that negotiations are not possible; but the mere fact that there is on occasion agreement and compromise does not mean that one side has caved to the other's demands, unless you subscribe to the view that any compromise is a sign of weakness. Advocacy groups tend to hold that point of view, certainly, but most other people and companies do not.
In the Broadcast Flag discussions you cite, if you read what Microsoft and the MPAA actually agreed to, it was that Windows Media DRM would incorporate proximity controls "until ... remote access issues can be further addressed appropriately." In a follow-up letter, Microsoft made clear it expects later versions of WMDRM will not have proximity controls on copying (and even the first version had no proximity control on streaming over IP). Since redistribution of DTV content over IP networks is still unfamiliar to many consumers, this is probably not a big "give" on Microsoft's part. Similarly, Thomson agreed to incorporate proximity controls only "until those issues can be addressed appropriately" -- such as in the FNPRM that was cut short by the D.C. Circuit's jurisdictional ruling. Granted, that's different than TiVo's decision to plow ahead, consequences be damned, but I don't think it's fair to either Thomson or the MPAA to say that Thomson was unduly pressured by content owners to take the position it did.
It's the same with the FCC. The FCC clearly accepted the content industry's case on the need for the Flag; but, among other things, its certification of TiVoGuard over the MPAA's vociferous objections shows that, whether or not the FCC was right, it is charting its own course on how to implement it. I don't believe there is any reason to think that in adopting further amendments to the Flag regulations, or considering further certifications, the FCC will be the captive of any particular industry group.
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