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FCC  LOSES  RIGHT TO REQUIRE 
'PIRACY' FEATURES -- FOR NOW

		By William Flanagan, Editor

A Federal Court last week told the FCC it had no authority to mandate anti-piracy features in new PCs, VCRs, DVRs, and TVs.  "...the F.C.C. has no authority to regulate consumer electronic devices that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission," Judge Edwards wrote (NY Times, 7 May 2005).  That ruling prevents the FCC from requiring a "broadcast flag" circuit in PCs and recording devices classified as consumer electronics.

But does that mean the end of this business?  Don't think so.

The folks who've managed to persuade the government to extend copyright terms practically to infinity, drafted the draconian Digital Millennium Copyright penalties, and proudly sued college students for trafficking in music are not easily discouraged.   They'll be back--perhaps closer to our jobs than you'd guess.

Note that the ruling specifically cited the FCC for overstepping its authority because the proposed regulations applied to devices that were not transmitting by wire or radio.  If the goal is to prevent distribution of "intellectual property" (do we smell an oxymoron here?) over the Internet, the logical place to police the traffic is in the network itself;  specifically, at the router.  Now that's close to home.

By definition, routers are always transmitting, so the FCC might more properly claim jurisdiction there.  Most routers contain a firewall of some sort--the better ones are stateful (meaning they can analyze a packet deeper than the IP header).  With increasing capabilities provided by network processors, there's no technical reason routers couldn't filter on the "broadcast flag" in any protocol.  

Could/would the FCC reach out and touch the Internet in this way?  Recent history indicates that the current administration isn't in the least shy about pushing the envelope, ignoring traditional boundaries, and doing whatever it takes to deliver to its constituencies.  Might happen. 

Sure, encryption could hide the flag, but even the best compression (BEFORE encryption, right?) won't hide the large file sizes.  The nature of the traffic will be apparent, easily identified, and therefor vulnerable to other forms of policing.  That's particularly true if the policing authorities have control of Internet routers.

Can carriers and operators of private networks ignore the situation because they don't "traffic in music"?  Not easily.  First, carriers don't know if they carry music or not, if all they look at is the IP layer of the protocol.  At the same time we know that carriers  want to get into the music/video/gaming business--all tightly connected to copyright material and "intellectual property."  What is the Triple Play if not direct involvement with precious content?  Telcos can't be both in and out at the same time.

Here we might be seeing a drawback for a network operator to move beyond being a common carrier to get into the content business.  If you own it, or even resell it, somebody is going to be very concerned about piracy.  That means the network operator could end up being required to police who uses what material.  For example, might the network have to worry that what goes up (to the customer) is coming down again (peer-to-peer)?

We know that the "don't tax the Internet" mantra will fade as soon as existing tax revenues drop significantly.  The largely unregulated nature of the Internet likewise will come under government pressure (as has started) when issues of control become important to some interest group with clout.  If "protecting intellectual property" just happens to give the FCC a stranglehold on all Internet communication (with a little help from their friends at NSA, CIA, etc.), would many in Government be unhappy?  Some of the "sneak and peek" provisions of the Patriot Act might not be renewed, but that wouldn't be such a loss to them if the same people had other means to examine Internet messages.

Do you ever think of the days when all the excitement in networking was at Layers 1 and 2?  How simple it now seems, those advances in T-1 and frame relay.  These days, to be effective, you have to work at Layer 8, the Political layer.

For carriers and equipment makers, just a heads up so far.  But it wouldn't hurt to get to know your state's U.S. Representatives and Senators.