Build your TV!
As the FCC and the entertainment biz get ready to end home recording as we know it, a bunch of radical geeks are working on a solution or two.

By Annalee Newitz

'ALL I WANT is to make a high-definition copy of Buffy the Vampire Slayer, save it on a DVD, and loan it to my friend," says Sarah Brydon, looking up from a long table covered with half-built computers. These sound like the words of a science fiction nerd, not a revolutionary. But Brydon is a new breed of protester – and she's expressing her discontent with the U.S. government by building a television.

She's one of a dozen consumer activists who have gathered on a Saturday morning in late January for a high-definition television "Build-In" at the Mission District office of the Electronic Frontier Foundation (where I work). Part computer hardware nerdfest, part hell-raising political action, the Build-In is a high-tech protest of a new Federal Communications Commission regulation called the "Broadcast Flag."

According to the FCC, the flag is going to ease the nation's transition from today's analog televisions to tomorrow's high-definition televisions. What exactly does it mean for a government agency to "ease" the transition from one kind of TV signal to another? In this case, it seems to mean making the entertainment industry feel very warm and fuzzy inside.

The Broadcast Flag is designed – poorly – to stop people from putting high-quality recordings of TV shows on popular file-sharing networks like BitTorrent. In reality, it will give the government an unprecedented amount of control over what we do in our own homes with recordings of HDTV. The flag is supposed to stop mass copying and infringement, but it will also stop most consumers from perfectly legal activities like saving HD copies of shows for personal use.

Past generations of media activists protested government and industry control of TV content. They battled FCC censorship, denounced market grabs by massive content conglomerates like News Corp., whose bland, mainstream programming turned a diverse media landscape into The O'Reilly Factor and 7th Heaven reruns. Those activists nourished independent TV content on local cable access channels, where they could talk openly about radical politics or get naked on a whim.

Now the Broadcast Flag has alerted a new group of media guerrillas to another way in which government and industry control pop culture: by locking down the devices that receive, copy, and remix broadcast signals. And these activists are responding by building independent technologies that don't bend to the will of the FCC or MGM.

The televisions created at the Build-In are also computers, and they contain a TiVo-like device called a personal video recorder (PVR) – you can use them to pause a show, record it, sample it, and even save a copy to DVD. Using the TV she builds today, Brydon won't have any trouble loaning her friend a copy of Buffy.

The television liberation front

By noon every surface in the EFF office is covered with computer guts: multicolored ethernet cables lie in snarled piles all over the floor, hard drives occupy precarious positions near half-eaten bagels, TV antennae poke into the air, and exposed circuit boards are tenuously connected to monitors whose output isn't always good. These TVs are going to rock, but getting the software running perfectly is a pain in the ass.

Celebrated consumer gadget blogger Phillip Torrone is bouncing around the room, interviewing everybody with his iPod for a Podcast about building televisions. He's flown down from Seattle just for the Build-In. "Tell me about this machine!" he says excitedly, thrusting the little white device at audiovisual geek Gregor Menasian, who has packed the last bit of open space with a computer full of extremely sweet components: quiet fan, capacious hard drive, fast CPU.

As the two of them talk, EFF special projects coordinator and attorney Wendy Seltzer snaps photos of an error message on Menasian's monitor. Seltzer, who helped organize the Build-In, wants to be sure that accurate reports of glitches go to the hackers who wrote the software everybody's using today to turn their computers into HDTVs with built-in PVRs. Called MythTV, it's named for the "mythical convergence box" gadget-crazy futurists often predict will finally combine TVs, DVD players, Web browsing, and stereos in one simple machine.

What has galvanized this group – made up of TV fans, civil liberties activists, and politically minded hackers – is outrage at what the Broadcast Flag will do to the future of innovative, crazy-dream devices like MythTV. After the mandate goes into effect July 1, it will be illegal for anyone in the United States to manufacture a device that records high-definition television unless it's built to obey a special signal – the flag – emitted by stations broadcasting HD shows. The flag will tell PVRs and other equipment whether they're allowed to copy a show onto some other medium, like a DVD. In short, broadcasters and content owners will actually be able to control your recording habits.

Let's say, for example, that it's a couple of years from now, and your TiVo (bought anytime after July 1 of this year) has recorded the excellent Marx brothers movie Animal Crackers, which was just broadcast on TNT in HD. Tomorrow you're getting on a plane to Australia, and you'd like to save a copy on DVD to watch on your computer during the 15-hour flight.

You're entitled to make a personal copy under federal copyright law, so it should be no problem. And in fact, it was no problem back in the days of analog broadcasts and VCRs. But with the Broadcast Flag in place, TNT can send out a signal that tells your TiVo not to make HD copies of Animal Crackers. So when you burn that DVD and put it into your computer somewhere over the Pacific, you get a bunch of garbage. The FCC has just stolen your rights.

Think of it this way: if the Broadcast Flag applied to VCRs, it would, in effect, allow you to tape shows but not necessarily take the tape out of the VCR. And you'd likely be forced to erase your show in order to tape the next thing.

Certainly there may be broadcasting companies that refuse to send out the flag, or that send out a flag saying "go right ahead and copy this." But a company like Paramount, which owns the rights to Star Trek, is unlikely to allow them to do so, for fear that letting people make copies will undercut its ability to sell syndication rights to Spike TV and UPN. Networks like CBS aren't going to want to let their shows out of the box either – they don't want to lose control of their intellectual property. For years we've taken for granted our ability to record television programs to enjoy weeks or even years later. Now that we have a chance to get extremely high-quality, HD broadcasts, the FCC is trying to take our HD media libraries away from us.

Why would it do this, especially given that it has received absolutely no mandate from Congress? Basically, the agency succumbed to pressure from Hollywood. Entertainment companies figure that as long as the copies available online are of a lower quality than what's on TV, the broadcasters have a leg up on downloaders. But instead of relying on the law to stop people from infringing copyrights, these companies lobbied the FCC to take control of the marketplace and force vendors to sell machines that make all forms of copying effectively impossible. If your super-excellent HD copy of CSI can't get out of the TiVo box, then you can't stick it online and break the law. Too bad you can't do what the law permits either.

Even more disturbing, the Broadcast Flag mandates that recording devices be "robust against user modification." In plain language, that means consumers can't repair, tinker with, or optimize their own machines. What's more, it will also become impossible for small, upstart technology companies to break into the consumer electronics market for TV recorders. If they can't take apart the devices that output the HD signal, they can't build cool new devices to play with that signal.

Which also means that the devices people are using at today's Build-In will be illegal in four months.

The government-entertainment industrial complex

"I don't care about TV, and I don't watch it," says Build-In organizer Seltzer, who's been fine-tuning her MythTV box for several months, coaxing better and better performance out of it. "I'm concerned with the Broadcast Flag because it could be the first step in a new kind of technology regulation" – a precedent-setting moment in which one government agency takes control of the high-tech marketplace, allowing only certain companies to manufacture devices outputting the HD signal. It seems a dangerous direction to be heading in.

For now, consumers may not realize the immense impact of the Broadcast Flag – the big content owners and the FCC are being pretty foxy about it. Even after the Broadcast Flag goes into effect, you'll still be able to make low-quality copies with your VCR. Most televisions are still receiving and outputting analog signals. The full impact of the flag won't be felt for several years, when most broadcasts are in HD and most people have chucked their VCRs. Suddenly you'll find out that the DVD player you bought last year can't play HD programs you burned from your new TiVo. Sound confusing or hard to imagine? That's precisely the point – the FCC is counting on your not being able to figure it out until it's much too late.

Over the next decade, HD is going to become the standard signal – most new TVs will be able to tune it, and free-to-air networks like ABC, CBS, and Fox are going to move to HD broadcasting. So will cable. Most networks already make some shows available in HD – CSI, most sports events, some PBS shows, like The Desert Speaks.

If your current TV receives HD, you'll know it – the quality is so much better it's almost scary. A traditional analog TV creates its picture out of 480 interlaced lines on your screen, while a typical HDTV creates the same picture using 1,080 interlaced lines. Those extra lines mean more detail, more intense color, and an eerie sense that the picture on your screen is literally the same quality you'd get if you were watching something with your own eyes.

The FCC is acting now to shut down what you can do with this amazing quality because once consumers have something (the way they've long had VCRs that record TV), it's harder to take it away. As long as what's being taken away is something "in the future," it's hard to feel like you're losing. But of course you are.

For a perfect example of how you'll feel this loss, consider the DVD player. Ever wonder why there have been no new nifty gadgets you can use with your DVD player for at least 10 years? Seems strange, doesn't it? I mean, think of how many new hoozits and zoomies have been invented for your computer in the past decade. Given the rate of invention in this country, shouldn't DVDs be making breakfast for you by now?

There's one simple reason they aren't. A coalition of companies from the entertainment, consumer electronics, and computer industries got together in 1999 and formed a group called the DVD Copy Control Association, which enforces a strict standard on all devices that can play DVDs. Anyone who develops such a product must comply with the CCA's standards, which include forcing it to place copy protections on any copies made of a DVD. Those protections mean you can only play the DVD in "approved" devices, such as a Sony DVD player or a Microsoft Media Player. It means you can't run the DVD through a mixing board to make a video collage, or create a tiny digital copy of it to play in your cell phone when you're bored on the bus.

Just a few weeks ago, a company called Kaleidescape was sued by the CCA for having the audacity to invent something it called a DVD jukebox – a cool device that could hold dozens of movies ripped from DVDs and output them to as many TVs or computers as the user liked. It was sort of like an iPod for movies, except several people could watch the movies in the same house at the same time if they wanted. At $27,000, the DVD jukebox is a very high-end toy. Kaleidescape execs say it's ideal for somebody who wants to make his or her DVD collection available to people in multiple rooms all over a large house (like, say, Steve Jobs's).

CCA sued Kaleidescape on the grounds that the jukebox promoted piracy, despite the fact that the recordings in it were made from legitimately purchased DVDs and that copies couldn't be removed for distribution elsewhere. The industry group wanted Kaleidescape to rebuild it so that viewers had to insert the DVD they were watching to prove they actually owned it. Of course, that would defeat the whole purpose of a jukebox. It would be nothing more than a very expensive DVD player.

And that pretty much sums up why the DVD player you bought in 1995 isn't much different from the one you'll buy tomorrow. This is a situation that sucks for the consumer and sucks for the small-business owner or innovator who wants to bring his or her ideas to market.

The Broadcast Flag will create a cartel similar to the CCA, only this time the government will be directly involved. Instead of the CCA launching a civil suit against somebody for making a noncompliant device, under the Broadcast Flag the government will be able to fine that person or stop him or her from selling the product. This will allow big media companies like MGM, Sony, and Paramount to get what they want – total control of how you watch television – without having to get their hands dirty.

Already, small-business owners like Jack Kelliher – who runs a tiny computer hobbyist company called pcHDTV – are being forced to change their business strategies to survive the flag. A longtime hardware hacker and entrepreneur, Kelliher sells a computer component called a PC card that lets computers tune in HD signals like a television (people at the Build-In used his cards to turn their computers into TVs). "We wanted to do something for hobbyists who wanted to build their own HD systems," he tells me by phone from his office in Utah. "But then the FCC did their embargo, and the rule means we can't offer the product next year."

He and his partners are scrambling to come up with other (legal) products to sell next year, in order to make ends meet. Among other things, they're creating a computer card that will receive TV signals and output them to analog devices that aren't affected by the Broadcast Flag. "This whole thing bothers me because I come from an era when we built radios in high school and stuff like that," Kelliher says. "Being able to build your own TV seems really American to me. It's sad that the government wants to halt innovation – it's just un-American."

Another innovator whose brainchild will be seriously affected by the flag is Isaac Richards, the Ohio-based lead developer of MythTV, the program the Build-In participants are using to make their computers act like PVRs. MythTV interacts with a PC card like Kelliher's, then displays TV shows on your monitor. It also records and stores shows, movies, and music, and it can even be set up to display the weather for your area (scraped from the Weather Channel) and bring you the latest news from your favorite blogs. It's not much different from TiVo – except that it's free and it isn't authorized by the FCC.

Like many inventors, Richards started his project because he wasn't satisfied with what was commercially available. "I wanted a TiVo, but it was limited," he says. "And the concept was simple: you just record TV and play it back."

Since Richards released the first version of MythTV on the Net two years ago, the program has become quite popular: nearly 100,000 people downloaded the last release. And part of what makes MythTV such a seductive package is the fact that it's entirely open: anyone can add to it. It's the diametrical opposite of a DVD player, whose every element must be reviewed and approved by an industry cartel.

In general, people are using MythTV to watch analog TV. But when HD becomes the standard, MythTV's development may face stagnation. As analog becomes an obsolete format, MythTV will also become obsolete. People can build their own analog TVs, but they won't be able to build their own HDTVs. And thus there's no chance an upstart young innovator like Richards will ever create a bigger, badder, cooler PVR for HDTV the way he did with MythTV for analog.

Looked at from this perspective, the Broadcast Flag isn't really a deterrent against piracy so much as a deterrent against the big consumer electronics companies losing market share to little guys with big ideas. As long as it's illegal for people like Richards to tinker around with HD components, nobody will ever invent something better than TiVo or Media Player. It simply won't be possible to create new HD-related toys without a fleet of expensive lawyers in tow.

The Broadcast Flag is an unholy alliance of government, big entertainment, and big electronics. Each is protecting the others' interests so that they can maintain control over the marketplace. The only losers in the deal are small entrepreneurs and consumers.

Geeks and librarians unite

Hope is not lost – at least, not yet. Several public interest groups, including Washington, D.C.-based Public Knowledge and the EFF, as well as the American Library Association, are fighting the Broadcast Flag tooth and nail. Librarians worry that limiting devices that can output HD may interfere with future methods for distance learning and archiving. Public Knowledge is concerned with the bigger picture. As executive director Gigi Sohn puts it, "People who want to make fair use of copyrighted materials won't be able to do it." In other words, no personal copy of Animal Crackers to make the flight to Australia less arduous.

Last week, a D.C. appeals court heard oral arguments in ALA v. FCC, the lawsuit these groups brought against the FCC, in which they argue that the FCC overstepped its jurisdiction when it mandated the flag. "There is no precedent for what the FCC did here," Sohn says. "Every time the FCC has regulated devices, it's because Congress gave it the authority. But this rule isn't based on any congressional mandate or even ancillary to a provision in the Communications Act."

Sohn, who was at the oral arguments, says the three-judge panel was very persuaded by the merits of the case. All three acknowledged that the flag seemed unnecessary to ease the nation's transition to HDTV – one even remarked that this was as ridiculous as the FCC attempting to regulate washing machines. Unfortunately, the case may hit a snag when it comes to whether these groups actually have standing to bring the case. The court seemed eager to have more concrete examples of how people would be harmed by the mandate. "Of course, it's hard to come up with concrete examples when the devices in question aren't even out yet," Sohn points out. And may never be, given the flag rule's chilling effects.

The EFF's Seltzer says the flag will create media fiefdoms, in which consumers are locked into particular devices or sets of devices in order to enjoy their media. It will be costly to buy a set of flag-compliant consumer electronics that all work together – and even when you do, recordings made in, say, a Sony machine won't be able to play in a Microsoft one. Which is just one more reason why it's time to build your own TV.

Back at the Build-In, Seltzer and Brydon are jumping up and down and shouting. "We've got TV!" Seltzer exults. Brydon can't stop grinning at her monitor, where they've tuned in some local news. The picture is still a little jerky – the software needs some tuning – but we've got our first HDTV working. Best of all, it's a liberated TV – it isn't an "authorized device," and it's not "broadcast flag compliant." It certainly isn't "robust against user modification." But because it was built before the July 1 start date of the Broadcast Flag rule, it's going to remain perfectly legal. This TV will always be able to record HD shows and burn them to DVDs for personal use. Next year, Brydon can loan her friends an HD-quality copy of Battlestar Galactica if they missed it that week.

Dale Kiefling, another Build-In participant, is almost ready to channel surf on his box too. He and his friend Lorena Fleming say they're excited to play around with TV the way they do with their computers. "I think the Broadcast Flag punishes the wrong group," Kiefling says. "The people who do mass piracy will always have the means to – the flag won't stop them. Meanwhile, the rest of us are stuck with broken entertainment systems."

All the people who now take for granted the act of removing a tape from their VCR – the Star Trek fans, the OC addicts, the Marx brothers aficionados – will gradually discover they can't do the same thing with their new PVRs. Copyright law permits consumers to make personal, fair-use copies of their media. And yet the government-entertainment industrial complex will have engineered every device to stop them.

"That's the worst part of all this," Fleming says. "People won't realize how bad it is until suddenly their stuff stops working."

Annalee Newitz is policy analyst at the Electronic Frontier Foundation and a freelance writer. Get the gory details at www.techsploitation.com.