In an earlier post, we mentioned that EFF filed comments with the FCC in connection with the Child Safe Viewing Act of 2007. This process unexpectedly drew our attention to a copyright issue, which we discuss below.

The comments of one blocking technology company, TVGuardian, reveal an interesting angle: TVGuardian and companies like it are unexpected victims of DRM and the DMCA! The conflict between copyright law and companies that try to edit or block "offensive" language or images in movies is not new; it came to a head a few years ago when movie studios sued ClearPlay over products that automatically skipped particular scenes in movies, based on lists of time-codes that ClearPlay supplied. The studios argued that this was a copyright infringement; Congress intervened by passing a law called the Family Movie Act (FMA) to immunize ClearPlay's product from copyright liability. The FMA says that

the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology

is "not [an] infringement[] of copyright". 17 USC 110(11). The FMA, by its terms, only protects a narrow category of products and only from a specific set of legal claims. (Notably, a company called CleanFlicks, which actually purchased movies and edited out portions of them before reselling them, was sued at about the same time as ClearPlay; only ClearPlay received legislative relief, and CleanFlicks ultimately stopped editing movies after a court ruled against it.)

One thing the FMA failed to do was to create an express exemption to the DMCA:

Nothing in paragraph (11) shall be construed to imply further rights under section 106 of this title, or to have any effect on defenses or limitations on rights granted under any other section of this title or under any other paragraph of this section.

So just as the movie studios argue that you're not allowed to break DRM in order to exercise your fair use rights – one of the biggest problems with the DMCA scheme – they are also sure to argue that you can't break DRM in order to exercise these rights under the FMA. TVGuardian seems to have run squarely into this problem; according to the company's FCC filing:

Initially, TVG [TVGuardian] was sold as an add-on hardware solution, that is, via a small box that consumers could connect between their TV and cable/satellite box or a VCR tuner. Hundreds of thousands of consumers purchased these boxes through Wal-Mart and other outlets. [...] Once the transition to digital TV is completed, without further action by the necessary parties, families that currently have access to TVG will lose their ability to use the technology, which was designed to work with their analog sets by reading the hidden closed-captioning that is no longer accessible by an external device for digital television through cable, satellite and IPTV.

As their filing explains, the original version of the product reads closed-caption (CC) data in an analog TV signal. It then uses pattern-matching to find words or phrases that the company has defined as "foul language" and can then mute the audio and even replace the captioned words or phrases with alternatives.

This strategy is reminiscent of the crudest pattern-based Internet censorware, and it's sure to produce false positives and sometimes comical results. It brings to mind Marc Rotenberg's satire of pattern-matching: "Congress shall make no law [...] abridging the freedom of sXXXch or of the press, or the right of the people peaceable to XXXemble, and to peXXXon the government for a redress of grievances." However, TVGuardian reports that "hundreds of thousands" of people nonetheless wanted the product; presumably many of them thought the risk of overblocking was worth it. The FCC's docket contains many comments from extremely satisfied TVGuardian customers.

Why can't TVGuardian get access to CC data after the digital TV transition? The real reason is not that the television programming is digital, but that a large portion of it (including satellite TV and much of pay cable service) will be encrypted, and the DMCA will prohibit TVGuardian from circumventing that encryption in order to read the captioning. The captions are carried along with the video signal – in analog TV, as a particular part of the vertical blanking interval (the brief time when the electron beam is returning from the lower right part of the TV screen to the upper left and hence not displaying anything); in digital TV, as metadata packets inside the digital video stream. If the video stream is encrypted, only devices that decrypt it will be able to read the captions. As TVGuardian complained, devices like set-top boxes normally only render the caption text as part of the video, rather than making it available on a separate interface like USB.

But since devices that decrypt these signals – even for the use of pay TV customers – are restricted by the DMCA (and a host of licensing agreements that depend on the DMCA), all kinds of applications like TVGuardian's are foreclosed. As we've noted, open standards without DRM allow third parties to make useful add-ons without asking permission; DRM together with the DMCA puts a stop to this kind of add-on innovation. There are lots of things that add-on boxes could do with the kind of access to caption data that all TV viewers used to have: not only blocking but also search or automated translation (in fact, Google had an experiment in 2005 along these lines).

In the past some major electronics manufacturers made deals to incorporate TVGuardian's technology into their devices. According to the company, "[t]he TVG feature was built into DVD players, VCRs and other devices manufactured by companies such as Sanyo, Magnavox, RCA, Memorex, Polaroid and Disney." Now these companies seem uninterested; TVGuardian complains that the manufacturers have been unreceptive to the idea of an update for digital TV. Essentially, TVGuardian is asking the FCC to recommend that Congress force these companies to negotiate with TVGuardian to include its technology, or something similar, in their future products. We think that would be a bad idea, but there is something to TVGuardian's complaints about the digital TV transition. At root, it's really a DMCA problem.

As with Apple's iPhone, we don't want to force companies to carry or integrate technology they'd prefer not to – but we think it's absurd that the DMCA lets companies intimidate other innovative third parties from offering things customers want.