Is the Analog Hole Legislation the Silver Bullet to Fair Use Rights?

By David Walker | January 3rd, 2006

As technology users, it’s our duty to keep track of the constantly developing landscape of consumer rights versus those of content providers. It’s a struggle that dates back to the introduction of the VCR and is still going strong today. The latest entry into this struggle is a scary one and is possibly as big of a threat as the Digital Millenium Copyright Act: The Digital Transition Security Act. Created by Representatives Jim Sensenbrenner (R-WI) and John Conyers (D-MI), the “Analog Hole Legislation” aims to curb piracy that (supposedly) occurs when an analog signal is encoded digitally and redestributed in violation of existing copyright laws. While Thomas Hawk recently uncovered the donors that Sensenbrenner and Conyers benefit from, I’m here to inform you of the nasty details of HR-4569. I’ve read the legislation in question to bring you the details our legislators conveniently gloss over.

In short, here are some of the juicy tidbits:

• The Bill is “forward-looking”, providing provisions to outlaw future technologies that are “comparable” to existing business models
• After a 12 month probation, the restrictions on the Act are removed and virtually any program format can be “protected”
• An 18 month “generally accepted manufacturing cycle” grace period will be given to manufacturers to get into compliance with the Act
• Provides for Statutory damages betwen $200 to $2500 PER DEVICE in violation of the Act
• Criminal offenses are punishable by up to 5 yrs/$500,000 fine for the first offense and 10yrs/$1,000,000 on subsequent offenses
• Time-shifting technology can be limited to a 90 minute window of usage from the start of the broadcast

Now, to be clear, there are a few provisions that attempt to limit the scope of HR-4569:

• The Act is not retroactive and will allow a 12 month grace period after enactment for devices that violate the Act
• The Act is not applicable to streaming devices without recording capabilities, although, if said device can be modified to record signals, it must come into compliance

So, what does all of this mean? Here’s my analysis:

• If you start watching a program on your TiVo or DVR and pause your program for more than 90 minutes, the file will be destroyed from your system before you can view it.
• Companies like TiVo will be subject to tremendous fines if “loop-holes” are found that bypass the provisions of HR-4569. These fines could easily escalate to the point of shutting down the company altogether.
• Any new codecs and PVR software created after the 12-month period will be subject to immediate examination by telelvision, movie and music studios and possibly subjected to civil and criminal prosection, resulting in a reluctance to innovate in this area
• Recorded television shows on any PVR device will have a limited “life” on your device. If you don’t watch it within a specified (by the studios, of course) time-period, then your recording will automatically be deleted
• Transferring recorded programs to devices like the Sony PSP or iPod Video will be strictly prohibited by most major studios. The right (and how) to view recorded content will be dictated by the studios and by them alone.

It should be clear that this bill poses a clear threat to long-established Fair Use rights. Networks like NBC and ABC have long hated that their TV shows could be recorded, and commercials skipped. They hate that users have found ways to transfer their shows to portable devices without paying additional fees. They’ve even threatened to sue because of innovations that consumers clearly want. If you are opposed to this legislation, let your voice be heard. Contact your legislator to let him/her know of your opposition to HR-4569.