COPYRIGHT MONITORS ASK FCC TO RECONSIDER PLUG-&-PLAY ORDER

December 30, 2003 by Brigitte Greenberg|Miscellaneous

A group of performing rights organizations that distribute copyright royalties said the FCC had failed to address their need to decrypt commercial performances when the agency issued its plug-&-play order. Broadcast Music Inc. (BMI) and the American Society of Composers, Authors & Publishers (ASCAP), in a joint petition, asked the Commission to reconsider its plug-&-play order, which set out technical, labeling and encoding rules that allowed for compatibility between cable and consumer electronics devices (CD Sept. 11 p4). DirecTV also filed a petition for reconsideration, questioning the role of CableLabs in running aspects of the plug-&-play regime, among other things. Petitions for reconsideration on the plug-and-play order were due Mon., the day the rules took effect.

The performing rights groups fear for their livelihoods, and those of the artists they represent, without specific authority to decrypt, monitor and copy audiovisual works using their computer systems. The groups’ role is to protect the rights of their affiliates and members by licensing and distributing royalties of copyrighted works. They monitor the performance of audiovisual works by local TV stations and broadcast, cable and satellite networks to distribute royalties to the creators and copyright owners. They use automated tracking techniques on computers, including personal computers. While acknowledging that the FCC had issued a 2nd Notice of Proposed Rulemaking on the use of personal computers as authorized devices in plug-&-play, the groups fear overly restrictive licensing terms would make royalty distribution too expensive.

BMI and ASCAP proposed that the FCC add a provision that performing rights societies “shall not be prevented by the rules from decrypting any digital rights management method adopted and approved by the FCC under these rules,” if the decryption was done solely to monitor performance and distribute royalties in the normal course of business. Under their proposal, those running any approved digital rights management method would have to make available to the performing rights societies “on reasonable and nondiscriminatory license terms” the ability to access any encrypted information for business purposes.

Those groups, together with the National Music Publishers Assn. and the Songwriters Guild of America, filed a separate joint petition arguing that the Commission had improperly infringed on copyright law. They said the Commission’s rules created an arbitrary discrepancy, giving the audio channel less copyright protection than video, although music already has suffered greatly from piracy. They said the Commission’s rules “arbitrarily and erroneously cap copyright protection of the audio channel, contradicting actions in the broadcast flag proceeding.” They said the Commission should adopt specific additions to the encoding rules to prevent piracy of the digital audio channel while maintaining digital audio device compatibility. They asked that the FCC stay its rules until it decided on their petition.

DirecTV, meanwhile, said the FCC had failed to explain its decision to extend some essential terms of the plug-&- play regime -- although DBS providers weren’t allowed to participate in negotiation or drafting of the plug-&-play agreement, a pact drawn up by the cable and consumer electronics industries. The FCC, DirecTV said, ignored the “unique interests, business needs or technical concerns” of DBS providers. The satellite provider asked the Commission to revisit 4 aspects of the rules and refrain from further regulation “until the participation of DBS operators and other interested MVPD [multichannel video program distributors] constituencies is assured.”

The first DirecTV question involved the FCC’s decision to exempt the encoding rules from content delivered over the Internet or to an MVPD’s operations via cable modem or DSL. DirecTV said that unfairly gave cable a competitive advantage because it “sets up an obvious loophole for cable operators to circumvent the encoding rules” because they can deliver video via cable modems.

DirecTV also said the Commission’s rules should provide minimum standards for TVs including an IEEE 1394 interface to improve compatibility with satellite TV. DirecTV asked the FCC to mandate that TVs that included the IEEE 1394 interface also support the full capabilities of CEA-775A, CEA-849A and CEA-861 or successor standards. Doing so would prevent the agency from inadvertently promoting the cable-only version of the IEEE 1394 interface, the company said.

DirecTV said the Commission shouldn’t have CableLabs approve technologies in the interests of all MVPDs. While the Commission acknowledged concerns about CableLabs’ serving as “gatekeeper” and solicited comments on the issue of how new technologies would be approved, DirecTV said a similar issue had arisen with CableLabs’ administration of the DFAST license. CableLabs will have “both the incentive and ability to hinder or prevent” the use of DFAST technology by noncable MVPDs, DirecTV said. The company asked for a “neutral administrator.”

Finally, DirecTV said future industry negotiations on bidirectional receiver specifications and related issues should include DBS representatives. Although the Commission has encouraged the cable and CE industries to consult with other affected industries on 2-way plug-&-play, DirecTV said the FCC shouldn’t accept any proposed regulations unless DBS operators are included in the process.