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29–573 PDF 2006

S. HRG. 109–539

THE ANALOG HOLE: CAN CONGRESS PROTECT

COPYRIGHT AND PROMOTE INNOVATION?

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JUNE 21, 2006

Serial No. J–109–86

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 2

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 4

prepared statement .......................................................................................... 96

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

prepared statement .......................................................................................... 129

WITNESSES 

Burton, LeVar, National Board Member, Directors Guild of America, Los 

Angeles, California ............................................................................................... 2

Cookson, Chris, President of Technical Operations and Chief Technology Officer, Warner Brothers Entertainment Inc., Burbank, California ...................... 10

Glickman, Dan, Chairman and Chief Executive Officer, Motion Picture Association of America, Washington, D.C. ................................................................. 6

Shapiro, Gary J., President and Chief Executive Officer, Consumer Electronics Association, Washington, D.C. ................................................................ 8

Sohn, Gigi B., President, Public Knowledge, Washington, D.C. .......................... 14

Zinn, Matthew, Vice President, General Counsel and Chief Privacy Officer, 

TiVo Inc., Alviso, California ................................................................................ 12

QUESTIONS AND ANSWERS 

Responses of LeVar Burton to questions submitted by Senator Specter ............ 26

Responses of Charis Cookson to questions submitted by Senator Specter ......... 35

Responses of Dan Glickman to questions submitted by Senator Specter ........... 39

Responses of Gary Shapiro to questions submitted by Senator Specter ............. 46

Responses of Gigi Sohn to questions submitted by Senator Specter ................... 54

Responses of Matt Zinn to questions submitted by Senator Specter .................. 61

SUBMISSIONS FOR THE RECORD 

Burton, LeVar, National Board Member, Directors Guild of America, Los 

Angeles, California, prepared statement ............................................................ 74

Cookson, Chris, President of Technical Operations and Chief Technology Officer, Warner Brothers Entertainment Inc., Burbank, California, prepared 

statement .............................................................................................................. 80

Glickman, Dan, Chairman and Chief Executive Officer, Motion Picture Association of America, Washington, D.C., prepared statement ............................. 90

Miller, Scott P., Executive Vice President, Veil Interactive Technologies, St. 

Louis, Missouri, prepared statement .................................................................. 97

Shapiro, Gary J., President and Chief Executive Officer, Consumer Electronics Association, Washington, D.C., prepared statement ............................ 105

Sohn, Gigi B., President, Public Knowledge, Washington, D.C., prepared 

statement .............................................................................................................. 114

Zinn, Matthew, Vice President, General Counsel and Chief Privacy Officer, 

TiVo Inc., Alviso, California, prepared statement ............................................. 131

(1)

THE ANALOG HOLE: CAN CONGRESS PROTECT COPYRIGHT AND PROMOTE INNOVATION? 

WEDNESDAY, JUNE 21, 2006 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:34 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, Hatch, and Leahy. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. Now 

that our witnesses are all here, we will proceed. We had heard 

there was a traffic problem in Washington. Shocking development 

that that would occur to delay witnesses, but we are all here now 

so we will proceed with this hearing on the inherent tension between protecting copyrights and stimulating technology. 

This is the third hearing conducted by the Committee on this 

issue. Last April, we had a hearing on the digital radio issue, in 

September on Grokster, and today’s is the third hearing. We will 

take up the question of the so-called analog hole, which is the technological loophole that could allow intellectual property thieves to 

illegally duplicate digitally protected movies, video programming, 

and other visual creations that are viewed in the home. 

Content owners have incorporated anti-copying features, but they 

are not foolproof. So the object is to see to it that we can protect 

property rights and we can also do without curtailing innovative 

ideas in a very fast-moving field. 

I hosted a roundtable earlier this month on June 6th with the 

interested parties to see if we could find some area of compromise. 

When you deal in an issue of this sort with giants on both sides, 

my experience has been that it is preferable to see if the parties 

cannot find a solution among themselves as opposed to relying on 

Congress. Legislation is full of unintended consequences. It does 

not have too many intended consequences. So that if it can be 

worked out to the satisfaction of the people who are interested and 

know the most about it, that is the preferable course. 

Without objection, my full statement will be made a part of the 

record. 

2

[The prepared statement of Chairman Specter appears as a submission for the record.] 

Chairman SPECTER. Let me yield now to my distinguished colleague, Senator Hatch, for an opening statement. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Well, we are just happy to have all of you here. 

I am more interested in listening to you and seeing what you feel 

about these matters. Of course, we want to do what is right, and 

I appreciate the Chairman holding this hearing. I appreciate his 

leadership in this matter, and I appreciate all of you for being here. 

That is all I have to say. I am going to listen as carefully as I 

can. Thanks, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Hatch. 

Our first witness is Mr. LeVar Burton, a National Board Member 

of the Directors Guild of America; well-known for his performance 

in the role of Lieutenant Commander Geordi La Forge in the television series ‘‘Star Trek;’’ also a director on such television programs as ‘‘Charmed,’’ ‘‘JAG,’’ ‘‘Star Trek;’’ a graduate of the University of California School of Theater. Thank you very much for joining us, Mr. Burton, and we look forward to your testimony. 

As you note from the time clock, we have a 5-minute rule, and 

we will start the clock back at 5. 

STATEMENT OF LEVAR BURTON, NATIONAL BOARD MEMBER, 

DIRECTORS GUILD OF AMERICA, LOS ANGELES, CALIFORNIA 

Mr. BURTON. I will get right to it then. 

Chairman SPECTER. Thank you. 

Mr. BURTON. Thank you, Mr. Chairman, Senator Hatch, very 

much for the invitation to discuss this problem posed by the technology gap that you referred to earlier as the ‘‘analog hole.’’ 

As you stated, I am here today on behalf of the Directors Guild 

of America, and I am a National Board Member, and the Directors 

Guild today represents over 13,500 directors and members of the 

directorial team who work in feature film, television, commercials, 

documentaries, and news. The DGA’s mission is to protect the economic and creative rights of directors and the directorial team, and 

we are working to advance our artistic freedom and to ensure fair 

compensation for our work. 

Now, during the making of a film, directors are actually running 

a multi-million-dollar business—a business involving hundreds of 

people and a myriad of details and decisions that have to be made 

each day to keep the production on schedule and on budget. Whether it is the crafting of a single scene or the visual creation of a 

character from the written page, the director is always working to 

tell the story. That is what we do. This is not an effort we take 

lightly, and it is not uncommon for a director to put years of work 

into a single production. 

We want you to know that the DGA places the highest priority 

on the prevention of widespread pirating of movies, television programs, and other creative works. And, indeed, the entire film production industry—from studios to independent production companies, directors, writers, actors, and the tens of thousands of belowVerDate 0ct 09 2002 11:07 Aug 28, 2006 Jkt 029573 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29573.TXT SJUD4 PsN: CMORC
3

the-line workers, both skilled and unskilled—has a tremendous 

stake in the ever-growing problem of piracy. 

Now, when the film industry is mentioned, what first and foremost comes to people’s minds is generally the popular image of 

glitz and glamour and the wealth of Hollywood. But like that proverbial iceberg, that is just a small part of the picture. 

Yes, our industry is concentrated in Los Angeles and New York, 

but, in fact, the film industry exists in every State in the country. 

And, yes, there are some luminaries known the world over who are 

fabulously wealthy. But, in fact, most directors and others who 

work in our industry are very much unknown to the public. We 

work behind the camera, and the overwhelming majority of jobs in 

our industry are held by what we call ‘‘below-the-line workers’’—

the people whose names scroll by at the conclusion of a film. These 

are the set designers, the carpenters, sound technicians, painters, 

drivers, lighting technicians, make-up artists, seamstresses, and so 

many other jobs, often amounting to hundreds of hours of work on 

a film. And they are no different than workers in other industries 

whose jobs are understandably important to you Members of Congress. 

And those are just the employees of the production company. The 

filming of a movie and a TV program also generates substantial 

employment for scores of small businesses that provide supporting 

services and equipment for the filming of a movie, from highly 

skilled computer technicians and artists at special effects companies, to caterers, dry cleaners, security personnel, and others who 

work for the companies that support film production. 

For directors, writers, actors, and the many craftspeople we work 

with, film and television production involves years of creative effort 

and hard work to put a vision on the screen. For the studios and 

the investors, it involves tens, if not hundreds, of millions of dollars 

to make that vision a reality. Today, the average studio film costs, 

believe or not, nearly $100 million to make and market. 

Obviously, this involves a high risk for almost everyone involved, 

and it means that it is never easy to get a film financed—a reality 

faced by every one of us who is in this business. I want you to consider that many films do not actually retrieve their investment 

from theatrical distribution. 

Most films made for theatrical release require large capital investments, and these are highly risky investments since their return cannot be known at the outset. Yet today, theatrical receipts 

account for less than 30 percent of the income received from studio 

films, and that means that sales in ancillary markets—from DVDs 

to pay and free television, which are most at risk from unauthorized copying—are critical if films are to recoup their investments. 

Quite simply, without the revenue from these ancillary sales, pictures would just not get made today. 

Clearly, the willingness and capacity of producers to invest in 

film and digital television is undermined when our creative works 

are illegally copied, whether in analog or digital form, by casual 

users or mass-produced production facilities, over the Internet, or 

by hard disk. When a greater share of potential income is siphoned 

off—stolen as a result of piracy—risk rises, financing becomes more 

4

difficult, we are not able to make our films, and American jobs are 

lost. That is the bottom line. 

For directors and for the DGA, this is the fundamental concern 

with piracy: that the siphoning off of revenue from ancillary markets will result in fewer films being made, which means less opportunity for us, as creators, to make the films and television shows 

for the American public. 

I see that my time is ticking away. There is more I would love 

to say. 

Chairman SPECTER. It is not ticking away. It is up. 

Mr. BURTON. It is up. 

[Laughter.] 

Chairman SPECTER. But if you have another thought to express, 

go ahead, Mr. Burton, and summarize. 

Mr. BURTON. Well, just to summarize, Senator, obviously there 

are people in Hollywood who make a lot of money doing this, and 

there are many concerns that are expressed by both sides of this 

equation. We at the DGA want this Committee to know that we 

represent hundreds and thousands of working people who are doing 

their jobs every day, raising their families, and that the issue of piracy is one that is of great concern to us. And whatever help you 

can give on this issue, we are most appreciative, and thank you for 

your leadership on this problem. And good morning, Senator 

Leahy. 

Senator LEAHY. Good morning. 

[The prepared statement of Mr. Burton appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Burton, and I 

now yield to our distinguished Ranking Member, Senator Leahy. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman, and, Mr. Burton, 

thank you. I have read your testimony, I am glad I got in for this 

hearing, and it is good to see you again. 

Mr. BURTON. It is good to see you, too, Senator. 

Senator LEAHY. I was actually at a breakfast, Mr. Chairman, 

where this was the major discussion, and it went on a lot longer 

than I thought it was going to. That is why I am delayed. 

I am also glad to see Mr. Zinn, who is in the same class as my 

eldest son at UVM. We treat everybody fairly by mentioning he 

was with my eldest son at the University of Vermont. 

The so-called analog hole is a major issue, and content owners 

are concerned over this gap in copy protection of their digital 

works. The analog hole, as others will describe, opens up when digital input is converted into an unprotected analog form so it can 

be viewed clearly on the millions of analog TV sets in households 

across the country. It is something that people our age may not 

well understand, but our 12-year-old neighbors could very easily 

understand. That analog content, as Mr. Glickman knows, could 

then be reconverted into unprotected digital form and put on the 

Internet. And, of course, once it falls into that hole, it has lost all 

digital protection. 

5

The possibility that this digital-to-analog-back-to-digital transformation could facilitate indiscriminate redistribution of copyrighted video content is real. As we have learned from past experiences—the unfettered illegal sharing of content over peer-to-peer 

networks that cost the copyright industries millions of dollars—

there are many reasons to work hard to end the infringement of 

copyrighted goods. The theft of goods—Mr. Burton mentioned the 

number of people employed who lose jobs, but also Congress just 

has an overall obligation to help ensure that copyrighted materials 

are protected. 

But the balance I have always had trouble with is this: I do not 

yield to anybody in my concern about copyright matters. Senator 

Hatch and I have worked over the years many, many times on this 

issue, as have Senator Specter and I. If somebody has got a copyrighted material and they have worked hard and they have done 

it, they ought to be able to profit by it. If nobody likes it, if nobody 

wants to buy it, that is fine. Then they do not make anything. On 

the other hand, if somebody really likes it, they ought to get compensated for that. Your business models may have to change in 

how you do things. None of you are going to be investing huge 

amounts of money into brick-and-mortar stores to sell your product. 

But you are going to be investing a lot in trying to sell them in 

other ways. 

I worry that technology invariably moves faster than legislation, 

and many times you are far better equipped to know what is going 

to work and what consumers will buy. The inexpert hand of Government is not as effective as the relevant markets in moving assets and interests to their best uses. 

So we are trying to find the best thing. I think it is clear that 

we have to make sure that a copyright is a copyright. But we also 

have to make sure that we do not put a heavy Government brake 

on technology. We were asked to do that once years ago, I remember, on this Committee when the first VCRs were coming out, and 

we were afraid people might copy a movie off television. And we 

were told that a lot of the movie companies wanted to be able to 

sell their movies at $125 a copy. I said, ‘‘Well, why don’t you sell 

them at $10 a copy or $15?’’ Now everybody knows, Mr. Glickman 

and others know that with every movie made, you have to think 

of what is the after-sale on DVD. 

So let’s find the best way, but also let’s find the best way if somebody has a copyrighted material, it ought to mean that not only 

here, but my last point would be for those who may be listening, 

whoever is in the administration has got to do a tougher and better 

job around the world in getting other countries to respect this. You 

cannot have China just do a photo op when they are trying to get 

the Olympics in Beijing, a photo op of crushing pirated material, 

when out back of the same building they are selling five times 

more than they just destroyed. 

So, Mr. Chairman, this is very timely and I applaud you for having the hearing, and seeing my friend Senator Hatch here, he and 

I have sat through an awful lot of these hearings in the past. 

Chairman SPECTER. Thank you very much, Senator Leahy. 

We turn now to our second witness, Mr. Dan Glickman, Chairman and CEO of the Motion Picture Association of America; had 

6

been President Clinton’s Secretary of Agriculture; 18 years in the 

House of Representatives; bachelor’s degree from Michigan and a 

law degree from George Washington University. On his official resume, I do not see his most important attribute. He was born in 

Wichita, Kansas. 

Mr. Glickman, we are delighted to have you here. I might add 

by way of an addendum, at least in my view the most important 

attribute, I was also born in Wichita. 

Mr. Glickman. I heard that before I came to this hearing today. 

Chairman SPECTER. I left in 1942 to make room for Dan Glickman, who arrived in 1944. 

[Laughter.] 

Senator LEAHY. And, Mr. Chairman, if I might—

Chairman SPECTER. But I left on Highway 96, and he arrived at 

the Wesley Hospital. 

Senator LEAHY. You do do backgrounds on these guys. 

[Laughter.] 

Senator LEAHY. I might also mention that my youngest son is 

this week in Wichita in flight training. I mean, we get this—anyway. 

Chairman SPECTER. Senator Hatch, what do you have to say 

about Wichita? 

[Laughter.] 

Senator HATCH. I look at this bunch of characters and they leave 

me dumbfounded, I tell you. 

STATEMENT OF DAN GLICKMAN, CHAIRMAN AND CHIEF EXECUTIVE OFFICER, MOTION PICTURE ASSOCIATION OF AMERICA, WASHINGTON, D.C. 

Mr. GLICKMAN. Well, we citizens of Wichita appreciate it, Senator, and thank you all for having this hearing. And I want to 

thank you for the opportunity to talk about the analog hole, which 

is a fairly obscure term, but, frankly, an avenue for massive infringement of copyrighted material protected under the law. We 

have a hole here that has the potential of massive leakage of copyrighted material. So the question is how we deal with this particular problem. 

My friend LeVar has talked a little bit about the impact on the 

copyrighted industries. The film industry has a positive balance of 

trade with virtually every country in the world. It is an enormous 

job creator. However, the viability of this creative output is reliant 

upon our ability to protect it from being devalued by theft, and this 

is where the problem occurs. We are in the digital future, as Senator Leahy talked about. That will allow viewers to watch virtually 

any movie at any time, at any place, at prices dictated by a competitive and thriving marketplace. 

In my statement, I talk about our studios and our companies are 

expanding their distribution channels to harness new technologies 

to deliver content in a variety of ways. I have listed Disney, Warner Brothers, NBC Universal, MTV Networks, Fox, and every one 

of our companies and others are taking advantage of this digital 

marketplace right now by offering all sorts of options. 

However, while the industry embraces the many opportunities of 

the future, it must deal with the ever present threat of theft. 

7

The pilfering of our films costs our industry approximately $6.1 

billion a year. Noncommercial copying of movies for family and 

friends, which is a large part of what we are talking about here 

today, costs our members an estimated $1 to $1.5 billion each year. 

On the Internet front, it has been estimated that as much as twothirds of Internet bandwidth in this country is consumed by peerto-peer traffic, much of which is attributable to movie theft. 

We are embracing digital rights management technologies so 

that we can offer consumers more choices at greater varieties of 

price points. People may want to purchase a permanent copy of a 

movie. Others may want to only watch it once and do it at a lower 

price. However, to maintain that distinction, we need to provide 

technical safeguards to ensure that the consumer who opts to take 

advantage of a time-limited viewing option at one price is not, in 

fact, getting the benefit of the sale option. Otherwise, the price of 

the time-limited model will naturally migrate toward the sale 

model, all of which is to the detriment of the honest consumer. 

In the DVD area, we have done this, and we have developed copy 

control mechanisms to ensure that, in fact, that content is protected. But there are some areas where private sector solutions 

have not worked. The analog hole is an example of an area where 

assistance is needed. 

When digital content protected by digital rights management 

technology is converted to analog form for viewing on legacy analog 

television equipment—that is, existing TVs, for the most part—the 

content is stripped of all its digital protections. This analog content 

then can be redigitized ‘‘in the clear,’’ without any protections 

whatsoever. The redigitized and completely unprotected content 

can then be efficiently compressed, copies, and redistributed without degradation. It can also readily be uploaded to the Internet for 

unauthorized copying and redistribution. Like a black hole, the 

analog hole sucks in all content protections, leading to various 

problems—leading to the opportunity for massive copyright infringement of protected items. 

This is not an idle concern. Some manufacturers voluntarily design analog-to-digital conversion devices to respond to analog copy 

protection information, such as one called CGMS–A, other markets 

devices specifically designed to exploit the analog hole. I have one 

here. We will leave it with the Committee so you can take a look 

at it. This stripper is one example of a device specifically designed 

and marketed to take advantage of the analog hole. These bad actors are reaping a windfall at the expense of motion picture companies and ultimately consumers, and good actors are placed at a 

competitive disadvantage. 

Closing the analog hole would place analog-to-digital conversion 

devices on an equal footing with all digital devices by maintaining 

the integrity of digital rights management measures. My testimony 

talks about the bipartisan solution in the House sponsored by Congressmen Sensenbrenner and Conyers known as ‘‘CGMS–A plus 

VEIL.’’ It provides a practical degree of protection. It has been the 

subject of intense scrutiny by technology and content communities, 

as well as other interested parties, and there is a broad consensus 

on the nature of the selections that should be considered. Indeed, 

three major technology companies, I think all members, if I am not 

8

mistaken, of Mr. Shapiro’s organization—IBM, Thomson, and Toshiba—have publicly endorsed the CGMS–A plus VEIL technical 

solution. 

So I appreciate the fact of coming here. I want to restate the 

problem again. Because of this hole, we have an avenue for massive copyright infringement which will negate the economic value 

and basis of the production of movies and other video content 

which will hurt not only Mr. Burton’s clients and people he represents, but everybody in this industry. 

We look forward to working with you, as well as our colleagues 

here at this table, to find an appropriate solution, but we think 

that the legislative solution is warranted. And thank you very 

much, Mr. Chairman. 

[The prepared statement of Mr. Glickman appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Mr. Glickman. 

Our next witness is Mr. Gary Shapiro, President and CEO of the 

Consumer Electronics Association, also Chairman of the Home Recording Rights Coalition; was an assistant to Congressman Mickey 

Edwards; Phi Beta Kappa graduate from State University of New 

York, a double major—economics and psychology; and a law degree 

from Georgetown. 

We welcome you here, Mr. Shapiro, and the floor is yours. 

STATEMENT OF GARY J. SHAPIRO, PRESIDENT AND CHIEF EXECUTIVE OFFICER, CONSUMER ELECTRONICS ASSOCIATION, WASHINGTON, D.C. 

Mr. SHAPIRO. Thank you for this opportunity to testify on the socalled analog hole. We understand the movie industry is concerned 

about what consumers may do with content that they have absolutely lawfully acquired. This concern has led to yet one more request to Congress to expand copyright law and even to dictate how 

products can be designed and used. We believe that this most recent request is a bad solution in search of a problem, and we ask 

you to consider that every time that Congress accedes to the content community request, someone else is paying the price, whether 

in terms of higher prices, unavailable products and features, or 

even higher litigation costs. Indeed, the historic vast expansion of 

copyright law these last few years was supposed to end with the 

inducement language of the Supreme Court, but that case appears 

to be just the beginning. The content community is aggressively 

pushing new legislation that would impose new design mandates 

on our products, and the analog hole mandate is just one of those 

proposals. 

Mr. Chairman, in your opening statement, you referred to intellectual property thieves, and I just heard my two colleagues talk 

about piracy and thieves and theft. But yet, as Mr. Cookson points 

out in his written statement, the analog hole mandate does not 

even address piracy. This is what he says: ‘‘These technologies are 

not intended to resist determined commercial pirates. They are designed to provide normal consumers with a way to determine that 

they are crossing the line.’’ 

This is determined to frustrate consumers doing what they are 

supposed to be able to be doing in their home, which is shifting 

9

content around. Yet these technologies that they are advocating are 

complex, untested, and would cripple millions of consumer products 

and would have huge implications on many non-consumer technologies. 

Let me tell you how the Hollywood community views this proposal. The industry magazine called Variety recently ran a story 

headlined, ‘‘Biz Balks as MPAA Digs Hole for Itself.’’ The sub-head 

says, ‘‘Analog problem requires complex copyright protection 

scheme.’’ The story describes how a motion picture industry audience responded with ‘‘dubious groans’’ when the MPAA’s own top 

engineer described this so-called solution and that he expected it 

would be retailers who would be the ones who would have to explain it to disenfranchised consumers. The article states, ‘‘The final 

question summed up the problem. This is a roomful of people 

whose living depends on this working. You are getting pushback to 

the point of hostility. If you can’t sell it to us, how are you going 

to sell it to the target 16 to 45 demographic?’’ 

Yet the MPAA is pushing this complex, Rube Goldberg proposal 

which will distort devices to get at some theoretical harm. Where 

is the proof of harm? Where is the need for legislation? Indeed, 

there is no evidence at all that the analog hole is contributing to 

any motion picture industry problems. Don’t believe me. Look at 

the evidence. MPAA’s own website states that 90 percent of pirated 

copies come from handheld camcorders. And an independent AT&T 

study found that 77 percent of movies on P2P networks were 

leaked by movie industry insiders. Which ever of these studies is 

correct, it does not have to do with the analog hole. 

And even if there were some real harm, the only proposal we 

have seen on this, H.R. 4569, is so broad and so unfocused that it 

would eliminate real products that served needs and hurt no one, 

like the great Slingbox, which I could talk more about later. 

In fact, this bill, the legislation, starts with the premise that the 

thing to be protected is something called ‘‘a covered format.’’ 

MPAA, in its inter-industry discussions, has had 10 years to figure 

out what the video resolution of such a format would be and to define it and how many semiconductor components and pieces of software would be covered. They have not. They want under this legislation to leave it to the Patent and Trademark Office after Congress has decided that a mandate should be put in place. 

This fundamental drafting hole suggests one of two things: either 

they are afraid to admit the breadth of the hardware and software 

to be covered, or the technology is changing so rapidly that they 

are afraid to put a definition in the bill. 

One key concern is there are two required copyright protection 

technologies. One is VEIL. Its cost and operation are unknown. 

You cannot even assess the VEIL technology unless you pay a 

$10,000 fee and promise not to talk about it. So how can Congress 

mandate a technology which is incapable of being discussed and reviewed? How can we even comment on it? But I do trust our member, Texas Instruments. They oppose this proposal and point out in 

documents attached to my written testimony that the VEIL own 

documents indicate the VRAM watermark does not work 42 percent of the time, and it actually caused a noticeable difference in 

29 percent of the test clips. Asking Congress to mandate a secret 

10

technology which may affect visual performance and illegitimize 

many products is really quite an ask. 

Another unanswered question is VEIL’s licensing status. I would 

like to conclude with this: Other countries are busy developing 

their technology industries to compete with ours, but we are here 

facing and fighting proposals and a massive amount of litigation 

which is bankrupting some of my own members under existing 

laws which suppress new technologies simply to preserve old business models. We have prospered recently as a country because of 

these same technologies. We are a nation of individual creators, 

and our creativity cannot and should not be solely defined by a 

handful of large companies. There are all sorts of things from the 

Internet—mixing technology, blogging, mashing, and home video 

editing—which have made millions of Americans creators and fostered websites like iTunes, YouTube, and others. If you want to 

block the hole, the analog hole, we are also blocking Americans 

from exercising their fair use rights and sampling—

Chairman SPECTER. Mr. Shapiro, how much more time will you 

need? 

Mr. SHAPIRO. One minute. There is a new breed of Americans 

which are your constituents, and they are our consumers. They like 

to TiVo, timeshift, playshift, and manage their content, and I can’t 

imagine they want the law changed to deny this right. 

Thank you for this opportunity. We want to work with you to 

continue this historic digital revolution and our Nation’s leadership 

in content creation, entrepreneurship, and creativity. 

Thank you. 

[The prepared statement of Mr. Shapiro appears as a submission 

for the record.] 

Chairman SPECTER. Thank you, Mr. Shapiro. 

Our next witness is Mr. Chris Cookson, Chief Technology Officer 

and President of the Technical Operations at Warner Brothers; previously had been Vice President and General Manager of the Operations and Engineering Division of CBS, 10 years at ABC; undergraduate degree and an MBA from Arizona State University. 

Thank you for coming in today, Mr. Cookson, and we look forward to your testimony. 

STATEMENT OF CHRIS COOKSON, PRESIDENT OF TECHNICAL 

OPERATIONS AND CHIEF TECHNOLOGY OFFICER, WARNER 

BROTHERS ENTERTAINMENT INC., BURBANK, CALIFORNIA 

Mr. COOKSON. Thank you, sir. Chairman Specter, Ranking Member Leahy, thank you for inviting me to testify today. In 2002, 

Richard Parsons, our Chairman at Time Warner, testified before 

this Committee and identified that the analog hole was one of the 

challenges facing the audiovisual industry in its transition from the 

analog world to the digital world that could not be addressed purely in the marketplace but would require, in fact, some kind of Government intervention. Today, I would like to focus on three aspects 

of this issue: enabling consumer choice, respect for copyright, and 

the fact that this is a transitional issue that gets us from where 

we have been to where we are going. 

We are in transition from an analog world where we used to live 

to a digital world which faces us in the future. The analog world 

11

had order and structure that delineated the choices we had. For instance you could go and rent a VHS or you could buy a VHS. If 

you did not take it back, you knew you were going to pay more 

than if you just rented it. 

Unauthorized copies in that world degraded badly, and none of 

us really had the capability of transmitting content to other people. 

A fully digital world will also allow for this distinction between 

consumer choices. Technologies like encryption can be used to authorize access based on how a consumer wants to use content and 

the terms under which it is offered. For example, in the digital 

world you can choose to watch once. You can choose to have a copy 

to watch for a week. You could choose to keep a copy in a library 

and so on. The choices actually in the digital world can be unlimited. But the key thing is the consumer can decide which uses they 

want to make. 

The digital world also allows for unsecured content to be copied 

and transmitted quickly, inexpensively, easily, and endlessly, and 

with no loss of quality. 

Today, we are in the middle of that transition where content is 

delivered predominantly to our homes in digital form, and the problem is we mostly still have old analog TVs. And so the digital content that comes to us in digital form with rights management associated with it has to be descrambled and put into an analog form 

to get the last 3 feet from the top of the set to the back of the set. 

When that happens, all the protections are lost and the content can 

be easily redigitized, resulting in nearly perfect files, which can 

then be copied endlessly and retransmitted. 

Consumers need and deserve a clear understanding of the terms 

of an offer that they can accept and the bounds of the 

functionalities that they will receive. We expect that most consumers will respect copyrights when the offer is perceived as fair, 

when the offer is understandable and easy to use, when the quality 

of service meets their needs, and the outlines of what the agreed 

uses are are clear. A clear understanding when the attempted use 

crosses the lines then helps to make a better definition of the offer, 

and the consumer then understanding what they got. 

Our job is to figure out how to make appealing, fair, understandable choices available to consumers, and we are trying hard. Today, 

the products which analog inputs, such as some we have brought 

today, make it more difficult for consumers actually to understand 

what the deal is. If I can put a copy in my library when I take the 

offer that said view once and it is easy and it is done with things 

I bought in a regular on an open market, am I foolish if I pay the 

price to buy it to put into my library? And if the price for Pay-PerView includes the ability to put it in my library, can I really get 

a cheaper price if I really say I really want to watch it only once? 

Or do we all have to pay the same price no matter what use we 

want to make? 

The misapprehensions of this approach that Mr. Shapiro mentioned actually come from, I think, a lot of misunderstanding and 

some bad information about what is included. I would be glad to 

go into more detail about what is included, but there is no implication here for F–16s, as I have seen said, or for toasters or for other 

devices. We are focusing narrowly and only on those devices which 

12

a consumer would buy that have the ability to digitize analog. And 

those devices and only those devices are involved. 

It will not eliminate my TiVo. I have several TiVos. I like my 

TiVos. They are fed directly from digital satellite. Most personal recorders in the TiVo class are fed directly by digital satellite or 

cable, and they are already subject to the kinds of controls we are 

suggesting that the analog hole measures would induce. 

The advantage of this approach is that it is very narrowly focused. It deals only with those devices which have the capability 

to digitize analog. Other people have suggested the answer is just 

banish analog outputs. We think that that is a flawed approach because it ends up hurting those who can least afford it. The people 

who have analog TV sets should be able to expect to receive a service life of those TV sets which they were designed to give when 

they were new. 

Thank you very much. 

[The prepared statement of Mr. Cookson appears as a submission 

for the record.] 

Chairman SPECTER. Thank you, Mr. Cookson. 

Our next witness is Mr. Matt Zinn, Vice President, General 

Counsel, and Chief Privacy Officer of TiVo Incorporated; previously 

had been a senior attorney of broadband law and policy for Media 

One; also had been corporate counsel for Continental Cablevision; 

bachelor’s degree from the University of Vermont and a law degree 

from George Washington University. 

A thumbs up from Senator Leahy, Mr. Zinn, and we look forward 

to your testimony. 

Senator LEAHY. And classmate of my son. 

[Laughter.] 

STATEMENT OF MATTHEW ZINN, VICE PRESIDENT, GENERAL 

COUNSEL, AND CHIEF PRIVACY OFFICER, TIVO INC., ALVISO, 

CALIFORNIA 

Mr. ZINN. Chairman Specter, Ranking Member Leahy, and Senator Hatch, thank you very much for the opportunity to present 

TiVo’s concerns about this proposed legislation that we believe 

would inhibit innovation and have profound consequences for consumers’ expectations as to how they can use lawfully acquired content. TiVo is a 400-person Silicon Valley company that makes products that allow consumers to have flexible use of lawfully acquired 

content such that they can watch what they want to watch, when 

they want to watch it, and where they want to watch it. 

We are very concerned about piracy. We think that is a laudable 

goal, and we take a lot of steps to make sure that content does not 

get pirated by using strong encryption. However, we are also very 

sensitive to the needs of consumers who want to have flexibility to 

make use of content for their own personal noncommercial uses, 

such as in the home. 

I am not sure what the problem is here because nobody has 

talked about an analog hole problem. Mr. Burton has talked about 

piracy, but there is no linkage between his testimony and the analog hole. Mr. Glickman has talked about the potential for massive 

infringement through the analog hole, yet nobody has demonstrated a dime of lost revenue due to the analog hole. So, you 

13

know, we need to identify what we are talking about here. Is it piracy? Is it indiscriminate redistribution of content over the Internet? We need to identify what the problem is. 

If it is piracy, analog to digital conversion is not what pirates use 

to copy DVDs and pirate content. They use digital-to-digital conversion tools, such as the types of things that are discussed in Maximum PC magazine for this month. And if pirates were to even use 

the analog hole, then the combination of CGMS–A and VEIL would 

not stop a pirate. They are very easy to defeat by people who are 

determined to defeat those tools. So the only people who are affected by this legislation are ordinary, honest, law-abiding consumers who will have their rights stripped away so that Mr. 

Cookson can make more money by charging every time you play a 

show. Basically, Mr. Cookson is trying to remove the ‘‘L’’ from the 

‘‘Play’’ button and make it a ‘‘Pay’’ button. Every time you watch 

something, you have got to pay. 

Now, the legislation mandates that we use a technology called 

VEIL, which is an untested technology, as Mr. Shapiro has said, 

and it is a technology that has been hand-picked by the studios. It 

seems crazy to me that Congress would mandate that consumer 

electronics companies have to use a technology that has not been 

vetted by the companies that would have to use it. And VEIL presents us from a patent perspective with a massive problem. I have 

to use a certain technology mandated in a certain way, and I have 

got no protection if I get sued for patent infringement. You only 

have to look at the BlackBerry settlement of a couple of months 

ago for $612 million to understand the kind of damages I am talking about here for using technology that I did not even ask to use. 

So that kind of exposure should be reason enough to question this 

kind of legislation, but that is not all. We have criminal and statutory penalties of $2,500 per device just to comply with the 

robustness rules, and the robustness rules require us to protect 

against hackers using ordinary tools. 

Now, I do not think consumer electronics companies can make a 

device that could withstand hackers. Hackers can pretty much 

hack any device today, and so this legislation would put me in jeopardy of Draconian penalties from day one because I cannot build 

a device that can withstand hackers. 

So at the end, I feel that this legislation is really not about piracy. It is about exerting control over consumers’ uses of lawfully 

acquired content, and the types of things that would be prevented 

by this legislation would be I could not move a show from the living 

room to the bedroom if I get tired and I want to watch a show in 

the bedroom. Pat Reilly could not make a DVD of Dwyane Wade’s 

latest moves in the last game so that he can watch the next game 

when he is on a plane. And I could not, you know, transfer a copy 

of ‘‘The Crocodile Hunter’’ from the Discovery Channel to my laptop 

so I can watch it at a place more convenient. 

I am not a pirate, and these are not piracy. The MPAA may 

think they are piracy, but these are fair uses. And I see no reason 

to change the balance of copyright law to prohibit these uses just 

so that the content industry can make more money for people 

watching content that they have already paid to watch. 

14

So, in summary, the analog hole is not the problem. We believe 

in protecting content from piracy, but this is not the problem. This 

is a solution in search of a problem. Copy controls on legitimate 

consumer use are different than piracy prevention. These are two 

different things we are talking about, and manufacturers should 

not have to bear the burdens and the liabilities, and consumers 

should not have their freedoms restricted for a problem that has 

not even been really vetted. So we urge the Congress and this 

Committee to take a hands-off approach to the analog hole and to 

let the affected industries deal with this problem. 

[The prepared statement of Mr. Zinn appears as a submission for 

the record.] 

Chairman SPECTER. Thank you very much, Mr. Zinn. 

Our final witness is Ms. Gigi Sohn, President and co-founder of 

Public Knowledge, an intellectual property and technology public 

interest group; previously served as project analyst at the Ford 

Foundation’s Media, Art, and Culture Unit; also was Executive Director of Media Access Project; summa cum laude graduate from 

Boston University with a degree in broadcasting and film, and a 

law degree from the University of Pennsylvania. 

Thank you very much for joining us today, Ms. Sohn, and the 

floor is yours. 

STATEMENT OF GIGI B. SOHN, PRESIDENT, PUBLIC 

KNOWLEDGE, WASHINGTON, D.C. 

Ms. SOHN. Thank you, Mr. Chairman, Ranking Member Leahy, 

and Senator Hatch. Thank you for inviting me to testify today. 

I want to focus on the impact of efforts to close the analog hole 

on consumers, so I bought a couple of props to help. Here is a video 

iPod. It is one of the most advanced personal digital devices available, but it has an analog connector right here on the underside. 

With a $20 analog cable, you could connect this to your television 

and watch your legally downloaded videos on your analog TV. 

Here is a DVD player, also equipped with analog connectors on 

the back. These multicolored video and audio outputs allow you to 

watch your legally purchased DVDs on your television. You have 

probably seen similar outputs on the back of your VCR, TV, digital 

video camera, TiVo, or video game consoles. These analog outputs 

are the analog holes that the content industry wants you to close. 

What would closing the analog hole mean for consumers? For 

one, it would restrict lawful uses of technology, like recording television shows onto a computer or moving recorded content from one 

device to another over a home network. These uses may not be authorized by the content industry, but they are 100 percent legal. 

Second, closing the analog hole could make obsolete hundreds of 

millions of consumer devices. Devices that are purchased before an 

analog hole mandate goes into effect may not work with devices 

purchased after. There is no transition period and no backward 

compatibility. 

Third, to the extent that such a mandate results in costs to device manufacturers, they will inevitably be passed on to the consumer. 

Fourth, closing the analog hole will restrict, if not eliminate, the 

making of fair-use excerpts of DVDs or other digital media for 

15

blogs, videos, or classroom use. This is because the DMCA makes 

it illegal to circumvent digital access controls for any reason, even 

if that use would be lawful under fair use. 

The analog hole is an important legal and technical solution to 

this problem. Indeed, both the Copyright Office and the MPAA 

have said that the analog hole should be the only way for consumers to be able to engage in fair use of protected digital media. 

By now asking Congress to close the analog hole, the content industry is playing a shell game that consumers will lose. 

Now, let me just say, for Mr. Cookson, I think consumers are 

smarter and they know what the limits of copyright are. But, in 

any event, those are limits that the law should set, not that Time 

Warner or Fox or Disney should set. The legislation introduced in 

the House would codify these consumer harms. I get into detail in 

my written testimony, but let me just say for those of you who have 

been involved in patent reform, this would impose duties on an inexperienced and overworked Patent and Trademark Office in an 

area where they have really no expertise and put them in charge 

of oversight of a vast number of consumer electronics and computer 

devices. 

I note that Hollywood has offered no real evidence that analogto-digital conversion is being used for indiscriminate redistribution 

of copyrighted works. Indeed, much of the testimony submitted to 

you today focused on hard goods piracy and infringement resulting 

from the use of computers and digital networks. The way to fight 

these problems is not by removing an important means for consumers to lawfully use the digital media and technology they purchase. Instead, the content industry should use the many legal, 

technical, and marketplace tools at their disposal, including the Supreme Court’s Grokster decision, which allows content owners to 

sue manufacturers and distributors of content who actively encourage illegal activity. This directly addresses Mr. Cookson’s concern 

that some analog to digital device manufacturers encourage infringement. 

The Family Entertainment and Copyright Act, which makes it illegal to bring a camcorder into a theater or leak pre-release movies; lawsuits against individuals who engage in wholesale infringement over peer-to-peer networks; agreements between content companies and Internet service providers to crack down on piracy while 

protecting individual privacy; and digital rights management tools 

that are marketplace driven, not Government mandated. 

Of course, the best deterrent to widespread infringement are 

business models for online content delivery that are reasonably 

priced, easy to use, and flexible. To Hollywood’s credit, it is starting 

to experiment with different business models. We believe that Congress should allow the market to work before it adopts a technology 

mandate that, on balance, will hurt consumers far more than it 

would help the industry. 

I would like to close with this thought. When Congress was considering the DMCA 8 years ago, the content industry assured legislators that this would be the last law that they would seek to limit 

consumers’ lawful uses of digital media. But in that time, we have 

seen proposed law after proposed law intended to further limit consumer rights and which impose a variety of innovation taxes on the 

16

technology sector. In this Congress alone, no fewer than five bills 

in both Houses would tip the copyright balance even further toward the content industry. This is nothing more than a carefully 

planned, long-term assault on honest consumers to make them pay 

multiple times for uses that the law still considers fair. 

Members of this Committee, legislation to close the analog hole 

would be profoundly anti-consumer and have no effect on piracy. I 

urge you to reject technology mandates and thereby preserve the 

careful balance inherent in our copyright laws. Thank you. 

[The prepared statement of Ms. Sohn appears as a submission 

for the record.] 

Chairman SPECTER. Ms. Sohn, do you think the Congress should 

take seriously any representation by anyone saying this is the last 

legislative fix we will ever ask you for? 

[Laughter.] 

Ms. SOHN. I think you answered your own question. We could go 

through the history. In fact, I don’t know if you saw the ad that 

the CEA put in The Hill about the many times the content industry has come hat in hand to this body asking them essentially to 

preserve their old business models. Or they have gone to court. 

Chairman SPECTER. We have noticed they are coming, but not 

hat in hand. 

[Laughter.] 

Chairman SPECTER. Mr. Glickman, lots of information about piracy from you and from the Department of Justice, but can you 

quantify any direct connection between piracy and the analog hole? 

Mr. GLICKMAN. We have just completed a major study called the 

LE case study which estimates that our companies lose about $6.1 

billion a year in piracy, and as part of that—

Chairman SPECTER. OK. I mean from analog—I have only got 5 

minutes. 

Mr. GLICKMAN. OK, $1 to $1.5 billion in what we call noncommercial copying of movies for family and friends. We believe a 

big part of that is due to the analog hole. 

Chairman SPECTER. How do you arrive at the figure of $1.5 billion? 

Mr. GLICKMAN. The firm did worldwide and national piracy study 

focus groups. The methodology we considered to be quite good. 

Chairman SPECTER. Well, let me ask you to supplement your answer with the specifics as to how you come to that conclusion. 

Mr. GLICKMAN. Sure, be glad to. 

Chairman SPECTER. We would like to see the methodology because before we really tackle the problem, we want to know—before we really look for a solution, we would like to have a specification of the problem. 

Mr. GLICKMAN. We will get you that, Senator. 

Chairman SPECTER. Mr. Shapiro, you have marvelous technology, 

phenomenal. With all of the technological advances and the ingenious devices, why not an answer to prevent duplication? Is as 

much time spent on trying to avoid duplication as is spent on these 

new devices, to sell these devices to the consumers? I enjoy them 

as much as anybody, but why not a real technological effort to find 

a way to prevent duplication? 

17

Mr. SHAPIRO. We believe that Americans believe and have the 

right under the Sony Betamax case to shift the content they have 

lawfully acquired in time and in place and to manage it. And that 

is a fundamental disagreement. This is not about piracy. This is 

about taking content that you have lawfully acquired and being 

able to use it elsewhere. What you heard from Mr. Cookson is they 

want to charge more every time you play a product. This is all 

about price discrimination. 

We have embraced CGMS–A. We have tested it out. It is even 

in a CEA standard. Actually, most of our manufacturers are using 

CGMS–A. They have tested it and are comfortable with it. 

This other thing called VEIL that no one has ever really seen or 

tested because you cannot talk about it and you have to pay a license fee is what concerns us most. But our products respond to 

Macrovision; our products respond to CGMS–A. We have worked 

very closely—we have developed a DVD standard with the motion 

picture industry that everyone is comfortable with. 

Chairman SPECTER. Well, you talk about products legally acquired. That is really sort of a rabbit in the hat. Mr. Cookson has 

sent up an SOS, and before recognizing his hand signals, I would 

like to pose a question to him. How do you respond to this point 

that Mr. Zinn is making and Mr. Shapiro just made again that it 

is legally acquired? And Mr. Shapiro pointedly said to you, Mr. 

Cookson, you want to charge more money every time they play one 

of those Warner Brothers films. 

Mr. COOKSON. Well, one of the things that I wanted to address 

is that all three of the people surrounding me here have spoken 

about your ability to timeshift, to watch something later, to watch 

it in another room of your house, the ability to take a clip of a basketball game and—

Chairman SPECTER. Come to grips with the issue on legally acquired. Has it been legally acquired and—

Mr. COOKSON. It is legally acquired, yes, sir, and the—

Chairman SPECTER. And should there be a limit—it is legally acquired. Should there be a limit then as to its use? 

Mr. COOKSON. There is no limit proposed to the use of those 

things they spoke about. What I wanted to say and the reason I 

gave the SOS is that there is a misunderstanding. There is no proposal to limit the ability to timeshift, the ability to take content 

from your living room to your bedroom, the ability to take something off of a basketball game and record it onto a disk and watch 

it on an airplane. Those are all preserved in the bill as proposed, 

because most content, in fact, is marked for copying one generation 

and marked for the use in timeshifting. Only in very special cases 

things like video on demand, Pay-Per-View, or recorded media 

where you can control when the watching takes place is there a 

copy-never provision. 

So it was not proposed by any of these that the things that they 

have mentioned would not be used in the way that they say it 

ought to be used. 

Chairman SPECTER. Mr. Zinn, you had an SOS. I cannot ask you 

a question because my red light is on, and I do not permit anybody 

to do it, including me. But if you want to followup on your hand 

signal, go ahead. 

18

Mr. ZINN. If copies are marked one generation and I copy it to 

my DVR, then I cannot make a DVD of it. I cannot transfer it from 

one DVR to another DVR, and I cannot transfer it from one DVR 

to a laptop to make flexible use of what is admittedly lawfully acquired content. 

Mr. COOKSON. Here, again, this is a misunderstanding, sir. The 

technologies in the marketplace already that Mr. Shapiro’s company has created and there are in place such as the 5C technology 

permit the copying to a DVR and then the moving to a DVD. So 

I think a lot of the opposition that you are seeing here today is 

really based on a lack of understanding of the technologies that 

have already come to market and the way that it is proposed that 

they be used. 

Chairman SPECTER. Have you fellows finished your private debate now without intervention by the Chair? 

Senator Leahy? 

Senator LEAHY. I love the debate. 

Again, I go back to what I said. I do not want to step on technology. I want the people who produce these things to be able to 

get paid for it and the people who have a legitimate interest, a normal interest, whether it is a performer, a writer, a producer, whomever, whoever is involved in the copyright, whatever the entity 

doing the copyright negotiates with the people who are involved in 

there but must share the profits they get, and that is fine. Nobody 

here is going to dictate that. I just want to make sure you get it. 

Also, though, I think back to the days of the VCRs where if Congress had stepped in and basically put the brakes on technology, 

we could have been in a very serious area. So we have to have that 

balance. And there is nobody—you are probably the most knowledgeable people we could possibly have here, but none of you are 

going to be willing to tell me what the technology is going to be 

10 years from now. You are working on what it is going to be a 

year from now or 2 years from now. 

I want to get back to the money part. Secretary Glickman, who 

is an old friend of all of ours, you talked in your answer maybe it 

is around $1.5 billion from your study. And, Mr. Burton, what do 

you think it is? 

Mr. BURTON. You are asking me, Senator, what I think the annual loss of—

Senator LEAHY. The analog hole problem, what are the actual 

losses in your mind? 

Mr. BURTON. Well, I do not pretend to have all of the statistics, 

but I do know that as Senator Specter mentioned in my introduction, one of the things I am most known for is ‘‘Star Trek.’’ I have 

been in this business for a long time, almost 30 years. 

Senator LEAHY. You had a pretty impressive role before ‘‘Star 

Trek,’’ too, sir. 

Mr. BURTON. Well, I do not mean to make any of us feel old, but 

next year we will celebrate the 30th anniversary of ‘‘Roots’’ airing 

for the first time in this country, and there has been a lot of water 

under that bridge between then and now. 

But ‘‘Star Trek,’’ I think it is safe to say, is pretty popular worldwide, and its popularity is what makes it vulnerable to this kind 

of piracy. It was determined that in 2005 that were over 57,000 

19

worldwide auctionsites of DVDs of movies and television that were 

available for sale, but those DVDs had not been released to the 

public as yet. 

Senator LEAHY. I understand that, and also with the time limitations here. Does anybody—I mean, can we put an actual handle on 

this? What I am worried about, if you have, for example, $6 billion 

in worldwide piracy, and if this is around $1 billion worth, do we 

have bigger areas that we should be looking at, for example, our 

treaties by other countries, the enforcement of those treaties? 

You are always going to have some form of piracy, just as you 

are going to have somebody come into a bookstore and shoplift a 

book. And we can create all kinds of penalties for piracy, but creating penalties or defining technology are two different things. 

Mr. GLICKMAN. If I might—and we are going to get the Committee the information Senator Specter has requested. First of all, 

you are right, we are never going to be able to stop piracy. We have 

to stay ahead of it and control it through a myriad of ways, from 

enforcement and education and international treaties. 

There is no question you have leakage with the analog hole; that 

is, you have digitized content that goes through the whole and—

Senator LEAHY. But, Mr. Glickman, you also have leakage when 

some of your movie theaters do not keep strong enough controls. 

You are going to have leakage when you go into more digital projection in your movie theaters. 

Mr. GLICKMAN. That is true. The question here is: Is the leakages going to be like the levees around New Orleans after Hurricane Katrina? That is, do we believe that this hole is so vulnerable 

that the leakage will become a flood or an avalanche? In our judgment, that is, in fact, the case. 

Senator LEAHY. Now, I will go back. You and I will have more 

chance to discuss this, but my time is running out. 

Ms. Sohn, you say that there are other uses of the analog hole 

that have no adverse effect on the movie industry, like transferring 

old home movies to DVDs, something that, with the movies of my 

kids when they were little, now I am able to do, classroom use, and 

so on. If we bring up this legislation, how do we not stop that sort 

of thing? 

Ms. SOHN. Well, one of the things that I recommended in my testimony, which will sound familiar to all of you, I think, is some sort 

of environmental impact statement. I really think you have to take 

the balance of what the impact would be on honest consumers, and 

I really do think that conflating honest consumers who want to 

transfer their home movies or who want to, you know, do video 

blogs using an excerpt of a DVD using the analog hole, you have 

to consider that, I mean, particularly—and balance that against 

the harm, the alleged harm to the industry. 

I think we have made it pretty clear here that the things that 

the industry is complaining about are not going to be resolved by 

the analog hole. But it really, really needs to be balanced against 

what the consumers’ harm is here. In my environmental impact 

statement, the harm to consumers would far outweigh the benefits 

to the industry here. 

Senator LEAHY. Mr. Cookson had his arm up. He is the boss. 

Chairman SPECTER. You go ahead. 

20

Mr. COOKSON. I just wanted to clear up one thing. The proposal 

that is on the table would have no impact at all on your ability to 

digitize and record and transmit or do anything you want to with 

your own personal content because you would not have marked the 

content with any of the marks that would suggest it would be controlled. So that is something that I think is one of those misunderstandings that was mentioned. 

Chairman SPECTER. Mr. Shapiro, you wanted to comment. Go 

ahead. 

Mr. SHAPIRO. I have a number of comments. 

First of all, there is an article, ‘‘The Problem with the MPAA’s 

Shocking Piracy Numbers.’’ It points out that the methodology has 

not been released and, indeed, that they are inflated, and, in fact, 

it is inside the U.S. The U.S. is already the tightest country in the 

world in terms of fighting piracy. It is one of the few countries to 

make the circumvention of DVD access controls illegal. It is working out very well, and this would carry us into the extreme of the 

extreme in terms of getting every last drop, and it would hurt consumers. 

Second of all, again, the MPAA website says 90 percent of the 

piracy is people in camcorders in movie theaters, which Congress 

just made illegal. Now, Mr. Cookson keeps on saying that this 

would not affect any legitimate behavior of consumers. What it 

clearly would affect is their ability to use their own content in a 

way that they would wish, and at some point he is going to say exactly what it covers, what the legislation would cover, because the 

way we read the legislation, it covers absolutely every product with 

an analog output unless the Patent and Trademark Office says it 

does not, which includes literally thousands and thousands of products. And as Ms. Sohn said, you are talking about if this goes into 

effect, the products in people’s homes downstream from that product would be rendered unusable. So if you just bought a new 

Yamaha Surround Sound processor, you spent $3,000 on it. Congress legislates, there is a mandate, you have a box which all of 

a sudden you cannot get your product in your TV set. And that is 

why the reaction of consumers to this proposal, if it is enacted, 

afterwards is going to—the retailers and the manufacturers are 

going to have to bear the burden of that, explaining why the products they sell just do not work. 

Chairman SPECTER. Mr. Cookson, if you have another rejoinder, 

would you please make it brief? 

Mr. COOKSON. It is another misunderstanding, sir, and so I think 

that we need to clear up that there are no controls over analog outputs at all. Those are all handled through private contracts. It is 

only the devices that do the digitizing with the analog input that 

we are talking about. The numbers in the MPAA website refer to 

the early window theatrical piracy, which is 90 percent, from theatrical screens. That is before the DVD has come out to copy. The 

DVD then becomes the source of piracy as soon as people can replace the camcorder from the screen. And so the data is being misconstrued a bit, sir. 

Chairman SPECTER. Senator Hatch? 

Senator HATCH. Well, I want to thank all of you for being here. 

This has been an interesting hearing to me. But one frequent critiVerDate 0ct 09 2002 11:07 Aug 28, 2006 Jkt 029573 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29573.TXT SJUD4 PsN: CMORC
21

cism I hear about the analog content protection legislation that was 

introduced in the House is that it covers virtually all devices that 

contain an analog-to-digital converter, including airplanes, cars, 

MRI machines, measurement equipment, and even some high-end 

toaster ovens. 

Mr. Cookson and Mr. Glickman, how do you respond to that type 

of criticism? And, additionally, should we consider having some sort 

of a primary purpose test to ensure that devices are not typically 

used to handle the conversion of commercial video content, that 

they are not covered by legislation in this area? And anybody else 

who would care to answer after Mr. Cookson and Mr. Glickman, I 

would be happy to—

Mr. COOKSON. Yes, sir, if I could. The necessity that we see is 

to focus as tightly as possible on the fewest possible devices, and 

there are analog-to-digital converters in F–16s and, you know, in 

toaster ovens and in automobiles, and those are not sold to consumers with the purpose of taking analog television and turning it 

into data. 

Products such as this, though, this product is a cute little thing 

that I think has a very legitimate use, as we mentioned, if you 

want to take your home movies and digitize them. This plugs into 

the front of your computer in the USB port. This product, though, 

we have no basis for dealing with in the contractual way that we 

deal with the manufacturers who do things like make DVD players 

and so on. 

So the products that are sold for the purpose of taking analog 

input video and turning it into data are the only products that we 

would seek to regulate. 

Mr. GLICKMAN. I just would add to that. Three major consumer 

electronics manufacturers—Thomson, Toshiba, and IBM—have basically endorsed the legislation, and I just would read to you from 

the Thomson letter: ‘‘The hole allows for digital entertainment to 

be played in analog form and then redigitized. Thomson acknowledges that the analog hole is a problem that has not been readily 

solved by voluntary efforts.’’ 

So this is not an issue that pits the manufacturers and consumers and the content owners against each other. It is an issue 

that we ought to be able to embrace a legislative solution together. 

Mr. SHAPIRO. Oh, come on. Thomson is virtually out of the consumer electronics business. They own Technicolor, and this is their 

biggest customer sitting next to me. That is like saying someone 

from the motion picture industry has endorsed this legislation, congratulations. 

[Laughter.] 

Senator HATCH. I take it you smell something wrong here. 

Mr. GLICKMAN. Would you say the same thing about Toshiba and 

IBM? 

Mr. SHAPIRO. First of all, IBM is not even in the electronics business for the most part anymore. I don’t know what Toshiba is 

doing, but they did not endorse the legislation. What they said is 

they used CGMS–A as virtually every manufacturer does. There is 

not a manufacturer that you could show me that will embrace the 

VEIL technology because they have not seen it. And if they do see 

it, they are not allowed to talk about it. They have to pay, and they 

22

sign a nondisclosure agreement. So to have Congress come when 

this has not even been vetted with the industry and to say make 

this a law that has to be, you know, literally hundreds of millions 

of products, it is just—it is the biggest reach in copyright history. 

Senator HATCH. Mr. Zinn, I hope you can be short. I have one 

other question. 

Mr. ZINN. Just to pop up a little bit, we are getting a little in 

the weeds, but I think there is kind of a white elephant in the room 

here, and that is, we have not identified what the problem is. Is 

the problem piracy, stopping piracy? Or is the problem stopping indiscriminate redistribution of content over the Internet? Or is the 

problem that consumers have too much flexibility in the home and 

Mr. Cookson cannot make as much money as he wants from monetizing that concept? 

Senator HATCH. One of the problems is being able to digitize and 

then put it online, and that is what I think the movie industry is 

more concerned about. I don’t think this is as big a problem as 

some think it is. 

Mr. ZINN. I would agree with you. 

Senator HATCH. Ms. Sohn, in your written testimony you assert 

that adopting legislation similar to what the movie industry has 

advocated would immediately ‘‘make millions of consumer devices 

obsolete.’’ Now, if the legislation merely contained—let’s say we 

pass legislation that merely contains a prospective requirement 

that new devices recognize and respect the copy protection information, how does that make millions of legacy device obsolete? And 

won’t digital converters and digital recorders simply continue to 

work as they do now? 

Ms. SOHN. Could you repeat the question one time? 

Senator HATCH. Sure. You are asserting that adopting this legislation, similar to what the movie industry has advocated, would 

make millions of devices obsolete. Now, if the legislation merely 

contains a prospective requirement that new devices recognize and 

respect the copy protection information, how does it make millions 

of legacy devices obsolete? 

Ms. SOHN. Well, I actually have some charts that I would like to 

submit for the record—

Senator HATCH. Sure. 

Ms. SOHN.—with your indulgence that show exactly that. So here 

we have an example of—let’s say we have analog hole-compliant 

television set and a legacy Slingbox, OK? So what will happen is 

when the signal gets to the Slingbox, it will strip out the CGMS–

A. That is what is indicated here by the lock. It will go to the 

Slingbox and out will come the VEIL signal, all right? 

Now, the default on the VEIL signal is copy never, so if you want 

to then see it on your mobile phone or on your computer, you cannot because VEIL tells you essentially that you can copy never. So 

this Slingbox, therefore, becomes completely and totally obsolete. 

Senator HATCH. OK. Mr. Cookson? 

Mr. COOKSON. The misunderstanding in this case is that the 

VEIL presence always permits viewing. There is never a restriction 

on viewing anything. All content can always be displayed. The only 

question is whether or not it can be copied. 

23

Ms. SOHN. It is not viewing. It cannot record, so it says you cannot—the VEIL does not allow you to record it. 

Mr. SHAPIRO. If there are so many misunderstandings among the 

experts from the technology industry on this panel, I just cannot 

figure out how consumers are ever going to be able to deal with 

this and understand what occurs when they are frustrated. And 

who are they going to go to? Who is going to explain it? And that 

was the objection of the motion picture industry audience saying 

who is going to explain to consumers that they cannot do what they 

have always been doing and why they are not able to do that. 

Chairman SPECTER. Do you want to break tradition, Mr. 

Cookson, and seek recognition? 

[Laughter.] 

Mr. COOKSON. I apologize, sir. 

Chairman SPECTER. No, no. It is the other way around. But you 

go ahead. 

Mr. COOKSON. In terms of what consumers can do, as Mr. Shapiro pointed out—and I think it is worthy of appreciation on our 

part—many of his manufacturers do look for CGMS–A. In fact, 

there are many manufacturers who make DVD recorders that, if 

you plug into the analog input—you take the output of your analog, 

output of your DVD player, and plug it to your DVD recorder. The 

recorder will tell you it cannot copy this material because it is 

copyrighted. 

The issue we have is that that is a laudable thing for them to 

be doing, but there is no obligation to do so. Many of his members 

do that because they do recognize and respect copyright, and we 

appreciate it. There is no reason, though, that their competitors 

have to do the same thing, and we have seen some products come 

to market touting the ability to make back-up copies of your DVD. 

This product here is a product that does not do this. 

So a product made by one of his manufacturers that does look 

for the CGMS–A and does respond exactly as we are proposing 

today in the legislation is something consumers already have in the 

market. We are asking to level the playing field so that those who 

do not respect copyright and who do not look for the code would 

do the same as his many members today do do. 

Chairman SPECTER. Well, now we have two people seeking recognition. Like in the Senate, whoever sought it first. Go ahead, Mr. 

Shapiro. 

Mr. SHAPIRO. A brief response. 

Chairman SPECTER. Make it brief. We are running over time, but 

go ahead. 

Mr. SHAPIRO. The vast majority of companies—in fact, probably 

all of our members do have CGMS–A, and privately agreeing with 

the motion picture industry, this makes sense. If companies choose 

not to do that, and if those products are indeed being used in ways 

which violate the copyright law, then under the Supreme Court decision, the well-funded content industry can bring a lawsuit and 

put that company under even before it is determined, saying you 

are inducing a copyright violation. 

The point here is these are not copyright violations. These are activities that consumers are accustomed to doing. They want to 

24

manage. They want to TiVo. They want to shift their content in 

time and place. And that is what is being denied here. 

Chairman SPECTER. A rejoinder, Mr. Zinn, briefly. 

Mr. ZINN. Well, we keep coming back to the copying of DVDs, 

and DVDs are not copied under the analog hole. Sure, they can be, 

but that is not how you would do it. You would do it using DVD 

copying technology that is readily available on the Internet, and it 

is cheaper, and you do not need—

Chairman SPECTER. And your hand is up again, Mr. Cookson? 

[Laughter.] 

Chairman SPECTER. Go ahead, but make it brief. 

Mr. COOKSON. We are introducing new DVDs and Blu-ray disks, 

which are high definition. They have analog outputs on them. 

There is no hack. There is no way to record those things digitally. 

We are very concerned that we have seen new products that have 

come to market today costing as much as $1,500, but very soon in 

this price range, that digitize the high-definition outputs of the 

DVD or Blu-ray players. And there is no means that we can see 

to prevent that other than making strictly digital outputs for highdef and saying that the people who have analog outputs cannot see 

high-def, and I think that that is something we would like to avoid. 

And we think that if there is a means of getting reasonable protection from the digitization of the output of those high-definition signals other than denying high-definition to people with analog TV 

sets, that would be a better alternative. 

Chairman SPECTER. Well, thank you all very much. This has 

been an unusual hearing. I think that we might promote the quality of this hearing by having the Senators leave the room. 

[Laughter.] 

Chairman SPECTER. And after the Senators leave the room, you 

can continue the hearing. 

But on a very serious note, the idea of having you get together 

and try to hash it out is one which I think you ought to pursue. 

And we had a session in my office on June 6th, and I am prepared 

to do it again. But I think it would be useful if you met in the interim. And it may be that you ought to make a limitation. Senator 

Hatch points out the scope of the proposed legislation on so many 

lines. If you limit it to video or audio-video, something more narrowly focused, it might not be quite so complicated. Or if you are 

talking about patent infringements on mandated approaches, perhaps the legislation ought to provide immunity if you are doing 

something which the Government orders you to do. I am not saying 

that is necessarily going to be the result, but those are ideas you 

can come up with. You do not really need for us to do that. And 

if you find an answer jointly, you will be a lot happier with it than 

what is imposed by the Congress. 

Senator HATCH. Or the courts. 

Chairman SPECTER. Or the courts, right. And Senator Leahy notices the high-powered nature of the audience today. He was 

doing—well, you speak. He was doing a multiplication factor of the 

cost of this hearing to the principals of all those in attendance. It 

is high than when he practiced law, or I did, or Orrin did, on our 

hourly rates. 

25

Senator LEAHY. It is about equal to the gross domestic product 

of the State of Vermont. 

[Laughter.] 

Chairman SPECTER. Well, thank you all very much for coming. 

This is a matter of great importance, and we want to know more 

precision about the losses. And we would like to see if somebody 

can come up with an idea as to technologically how to solve it. I 

think the great effort of technology is directed to finding a product 

that will sell on the market, and that is the American system, but 

there ought to be some efforts made to find a way to close the opportunities for property right infringements as you go along because of the serious concerns and the serious interests which are 

involved. 

Thank you all, and that concludes our hearing. 

[Whereupon, at 10:49 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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