Hollywood's new campaign for government permission to police the Internet for copyright theft began this month with a segment on, of all places, CBS's Sixty Minutes. Viewers expecting another of the shows' self-described "hard-hitting investigative reports" watched a feature called The Movie Pirates, in which a shocked Leslie Stahl disclosed what was apparently a revelation to her—that people go into multiplexes with camcorders, record the movie, then package and sell it on the street.

"Mobsters have moved into the piracy business, and it's bleeding Hollywood to the tune of billions of dollars a year," Stahl warned her viewers. The most prominent scofflaw shown in the program was an enterprising fellow from Illinois, who, to the journalists' horror, was caught recording the flick while watching it with his family. "He brought a child with him to do this?" Stahl asked the private investigator who collared the man, outrage in her voice.

But that's not all, Sixty Minutes fans learned on November 1. "Even more than organized crime, it's the Internet that has Hollywood's hair on fire," Stahl explained, thanks to a "gee-whiz computer technology called BitTorrent." An expert explained the protocol to a wide-eyed Stahl as if its one and only purpose was to let Tony Soprano steal movies. Then came an interview with director Steven Soderbergh, who suggested that The Matrix would never be made today, thanks to the billions lost by file sharing over the 'Net.

"I'll tell you Leslie," Soderbergh declared in all seriousness, "there are days when I really wish Al Gore hadn't invented the Internet."

We'll spare you the rest of the technology tutorial, but what Sixty Minutes only hinted at during the show was the extent to which the trade association that doubtless cheered this segment—the Motion Picture Association of America—is also pressing for the deployment of a wide variety of techniques to put "speed bumps" on the 'Net, as one of the program's interviewees called them. The piece came in the wake of a reshuffling of MPAA staff, reportedly in response to studio complaints that the group's anti-piracy efforts have not been effective so far. Even the group's boss Dan Glickman is stepping down.

Real streets

Copyright theft surveillance becomes synonymous with national broadband planning, since you want to make sure Hollywood retains the incentive to keep making the movies that drive consumers to the 'Net.

The Friday before that program, MPAA sent the Federal Communications Commission a 32-page filing submitted as part of the FCC's National Broadband Plan, which the agency must submit to Congress by mid-February. The statement called for the Internet to be "governed by laws, standards and rules, just like the real streets and communities inhabited all across America." The FCC and Congress "cannot let the anonymity of the Internet become a cloak behind which people think that unlawful conduct can continue unabated," MPAA warned.

In tandem with this came a commentary by MPAA member Paramount Pictures illustrating the extent of the problem. Over five million copies of Paramount's May release Star Trek have been illegally downloaded over the Internet, the company complained to the FCC. The studio blamed just about everybody on the 'Net for the development, from ordinary users through Google, Yahoo, and Microsoft's Bing.com—search engines that lead the public to illegal download sites.

"Today, literally anyone with an internet connection can do it," Paramount warned—"it" being copyright theft. "Clunky websites are being replaced by legitimate looking and legitimate feeling pirate movie websites, a perception enhanced by the presence of premium advertisers and subscription fees processed by major financial institutions."

So what does the MPAA crowd want? The commentary spoke favorably of France's new "three strikes" law, which allows a single judge to order Internet disconnections for illegal file sharers, the United Kingdom's "Digital Britain" report, which recommends that ISPs identify and notify such users "so that they can be subjected to targeted legal action," and Sweden's new law requiring ISPs to reveal content infringers' IP addresses.

But Hollywood emphasizes that it doesn't advocate any of these specific measures per se. What the studios really covet is FCC carte blanche to partner with ISPs to crack down on consumers in whatever ways they like. The filing favorably mentioned IP address blocking, subscriber bandwidth capping, digital fingerprinting, watermarking, and hash marking as effective solutions. MPAA wants the National Broadband Plan to recommend that "government policies [should] support these multiple efforts and not foreclose any particular anti-theft approach."

By now you're probably wondering what any of this has to do with an FCC proceeding about how to encourage greater broadband deployment and use. Here's the supposed link: The studios have glommed onto the "content is king" thesis, that online movies and "other professional video content" are "key drivers of broadband adoption," in Paramount's words. Thus, copyright theft surveillance becomes synonymous with national broadband planning, since you want to make sure Hollywood retains the incentive to keep making the movies that drive consumers to the 'Net.

Clogging and taxes

Aside from the fact that some scholars say the "content is king" line is bogus, that connectivity (e-mail, voice, texting, social networking) is what really ramps up high speed Internet use, much of what MPAA and Paramount have told the FCC is pretty seat-of-your-pants logic. Example: MPAA's filing contends that fighting content theft will also "substantially reduce or eliminate vast amounts of unlawful traffic that currently clogs the Internet and degrades service to law-abiding consumers." Illegal file sharing "undercuts broadband use and adoption, clogging already taxed network connections with illegal activity," the trade association adds.

In fact, what this observation also suggests is that file sharing, legal and otherwise, boosts broadband adoption, although it obviously presents challenges to network management. The question is whether MPAA's any-argument-we-can-throw-at-the-public approach will win over Congress and, more immediately, the FCC. The resolution of a controversy that you are far less likely to see covered by Sixty Minutes may serve as a test case here.

We need protection

Late last week, 13 public interest groups released an "action alert" warning that the FCC's Media Bureau is poised to offer the motion picture industry a waiver on "selectable output control." Goodness knows who Leslie Stahl would get to explain this to her, but Kyle McSlarrow, President of the National Cable and Telecommunications Association seems like a reasonable candidate. McSlarrow's latest blog post makes the case for FCC permission for movie studios to partner with cable companies to selectively shut down the analog cable input to HDTVs or similar home theater devices, which both industries say is more susceptible to copyright theft than digital inputs. The FCC has banned SOC for some years, but the studios and big cable argue that this green light will allow them to offer the public pre-DVD releases of movies on a video-on-demand basis.

"High-quality content (most movie productions take years from start to finish) is expensive to create and content owners rightly need adequate protection against indiscriminate and unauthorized distribution of their content to take this next step," McSlarrow warns. "While content producers already make some less expensive independent movies available to cable at the same time they are in theaters, it's clear that major studios will not release their blockbuster films early unless we can guarantee proper protection."

McSlarrow dismisses the concerns of Public Knowledge, the Consumer Electronics Association, the Home Recording Rights Coalition, and Ars Technica (which has reported their arguments sympathetically) that closing down analog inputs would leave some home theater owners without access to this new service, forcing them to buy new equipment. But, in fact, the MPAA in one of its recent FCC filings acknowledged this as well, even while casting doubt on Public Knowledge's estimate of 11 million consumers affected by the change:

"Even if accurate, the Public Knowledge figure is vastly overinclusive because it counts homes where consumers do have at least one television set with protected digital inputs (even though they also may have older sets in other rooms in the house). In fact, the vast majority of consumers would not have to purchase new devices to receive the new, high-value content contemplated by MPAA’s waiver request."

So the debate is not really about whether consumers would impacted by an SOC waiver, but how many, and if that would be in the public interest. To these questions MPAA brings flimsy historical analogies, such as this: "Under Public Knowledge’s approach, the Commission would have taken decades to permit television stations to broadcast in color," the organization told the FCC this month, "since millions of American homes already had purchased black-and-white sets when color broadcasts were introduced in the 1950s."

The problem with this comparison, of course, is that even with the rise of color broadcasts, black-and-white TV owners could still actually view the programs (this writer resentfully watched color TV in black-and-white throughout his Wonder Bread years).

Sure does

We contacted both the FCC and the MPAA to find out whether the Commission is, in fact, poised to give the FCC the go-ahead on SOC. The FCC didn't return our call; MPAA sent us the comments we've already written about here. But it seems likely that if the agency does grant the waiver—especially without offering a Notice of Proposed Rulemaking or conducting any independent investigation—the action will be interpreted in some quarters as a nod not only towards Hollywood's VoD goals, but towards its designs on the Internet overall. The decision could also weaken support for the Commission's proposal to toughen its net neutrality rules, especially among FCC watchers already worried that enhanced authority could eventually be used to expand copyright surveillance as well.

All this is playing out beyond the earshot of a public that is largely mystified by these subjects—which is why that Sixty Minutes segment was so important. During the feature Stahl marveled at the demonstration of BitTorrent that she received from former Justice Department Attorney John Malcolm.

"And when we get that complete movie, the technology will rearrange all those little pieces into one complete film that is watchable," he explained.

"There's a technology that automatically puts it in the right order??" an amazed Stahl asked.

"Sure does," Malcolm replied.

What wasn't mentioned, of course, was a crucial detail—that the entire Internet works that way, its packet switching system breaking down the data sent by every protocol, from BitTorrent to hypertext to standard mail transfer (e-mail), and reassembling it at the end user point. And that's why giving Hollywood and the cable ISPs the right to unfettered surveillance has implications for a lot more than whether the next Matrix gets produced. Hopefully the public will figure that out before the fact, not afterward.