Digitizing video signals might violate the DMCA

Could it become illegal to digitize analog signals? The District Court for the Southern District of New York has come perilously close to saying yes.

It started with a lawsuit. In June of 2005, Macrovision sued Sima Products under section 1210 of the DMCA, claiming that Sima's video processors provided an easy way to circumvent Macrovision's analog copy protection (ACP). Macrovision's best-known form of copy protection inserts noise into the vertical blanking interval found in analog video signals, like those from DVD players and VCRs. This noise is not displayed on a television set, but it does throw off the automatic gain control used by most VCRs, making recording difficult. Sima's products simply convert the analog signal to digital, which eliminates the noise in the blanking interval, then processes the signal and converts it back to analog. Presto—no more copy protection.

Macrovision objected to the devices, which remove its copy protection from both VCR and DVD signals, making it simple for a user to copy movies (though only in analog format). Earlier this year, the Court agreed and issued a preliminary injunction against Sima, which was upheld in June.

The Consumer Electronics Association, concerned about the precedent that the move could set, denounced the ruling. President Gary Shapiro said, "Consumers should be outraged by today's decision. The devices Sima Products manufactures simply allow consumers to use digital techniques to make up for viewing artifacts in analog material—some from age or distortion, and some caused as a result of the use of distortive copy protection techniques. The legislative history of the 1998 Digital Millennium Copyright Act (DMCA) is clear that passive analog measures that distort video signals are not 'technical protection measures.'"

Now the injunction is being considered by the Court of Appeals for the Federal Circuit, and an amicus brief has been filed in support of Sima by the American Library Association, the Consumer Electronics Association, the Home Recording Rights Coalition, and the Electronic Frontier Foundation, among others.

The brief makes the point that Congress has already addressed this issue quite explicitly in Section 1201(k) of the copyright code, which prevents analog VCR manufacturers from ignoring automatic gain control copy protection. The coalition notes that this only applies to analog products, and they quote Senator Orrin Hatch's comments to the same effect.

But the main argument is that ACP is not a technological measure that "effectively protects a right of the copyright owner" because ACP does not actually prevent making copies at all. It simply makes it difficult to get good copies. Furthermore, ACP is really a "flag," not a "measure," since it can be either read or ignored without problems. Finally, it is not an effective protection measure because it does nothing to stop digital copying (digital video signals do not require blanking intervals, so digital copies simply do not use the information in the blanking interval at all),

The brief also argues that Sima is not "circumventing" anything—the stripping of the ACP is just a necessary byproduct of digital conversion. "Circumventing" suggests a much more active process.

The case is a long way from a resolution, but it's an interesting one to watch. As the EFF puts it, "If Macrovision wins, digital video innovators will be stuck carrying the albatross of Macrovision's analog noise for years to come." We all know what happens to those who carry an albatross for too long—they start crashing weddings and regaling guests with stories about life at sea. And nobody wants more of that.