In spite of strong opposition on the part of consumer groups and civil society in general, Brazil is about to embrace DRM for its new digital television system. The situation is especially worrisome when one considers that TV is the number one network in Brazil, reaching more than 90% of Brazilian households. If the broadcasters succeed, DRM will be installed in all Brazilian set-top boxes, i.e., the digital signal decoders for analogical TV sets.

The history in Brazil is becoming different from what happened in the United States, where the adoption of DRM was proposed by the Federal Communication Commission (in the modality of a “broadcast flag”) and was rejected, even judicially, thanks to an effort coordinated by the Electronic Frontier Foundation, under arguments of unconstitutionality. In Brazil, the same unconstitutionality is once again present. To implement DRM (the same “broadcast flag”), the executive branch in Brazil will have to mandate that the Brazilian industry only manufactures set-top boxes tainted by the system. It will have also to ban all imports of equipment not certified according to the DRM standards. That will be a clear violation of the Brazilian Constitution, in as much as such drastic limitation of rights and imposition of burdens would have to be decided by the Brazilian congress.

To make things worse, the Brazilian Constitution sets forth that television must be “free and gratuitous”. Accordingly, if the DRM is implemented, it directly violates this constitutional definition. In addition to that, Brazilian Copyright Law explicitly allows limitations on copyright that actually allows copying and quoting excerpts of TV programmes. With the DRM, the technology is not able to distinguish between the types of uses that are allowed by law, and the types that are not. Good and bad uses will be dealt with in the same way: they will be equally blocked.

In spite of all these arguments, the battle is being won by the broadcasters. There are only a few Ministries in Brazil who went public against the implementation of the DRM: the Ministry of Culture and the Ministry of Science & Technology, among others. Nevertheless, the almighty Ministry of Communications, led by Helio Costa – a former anchorman of the largest Brazilian broadcasting company (TV Globo) – totally supports the adoption of DRM.

Recent facts, not-so-new divergences

On 21 August 2007, a major newspaper reported that "the tendency is that the Secretary of State will follow broadcasters’ request and recommend to the President the prohibition of recordings".

In the same article, the Folha de Sao Paulo newspaper stated that "divergences were opened on Government because of the DRM and Digital TV issue”. Besides the Ministry of Culture’s position against DRM, the Secretary of State released a communication to the press denying that the Committee had already made a decision on the issue (after rumours that it would reject the implementation of DRM). Even Minister Helio Costa, before meeting with his former employers (the broadcasters), had declared that the DRM would be unconstitutional, but he quickly changed his mind after being reprimanded for this slip.

On 22 August, Mr. Costa informed that, in the end, the final decision on DRM for digital TV would be taken directly by the President Luiz Inacio Lula da Silva.

Academics also oppose the implementation of the system. “The Brazilian Constitution refers to open television as free and gratuitous. Inserting anti-copy technologies means overcoming those characteristics foreseen by Constitution,” says Bruno Magrani, a professor at the FGV Law School in Rio de Janeiro.

Civil society groups disapprove

Articles presenting different points of view have been published in the main newspapers in Brazil. The broadcasters and their lawyers have written in support of the adoption of an anti-copy system, claiming that if it is not adopted, they will not be able to get deals on premium content such as the Olympic Games or the Soccer World Cup. The local branch of the Motion Picture Association (MPA) also insinuated that if DRM is not implemented, they might increase the prices of films sold to local televisions, and might even cease offering films altogether.

Consumer groups and civil society as a whole claims that legitimate and reasonable uses, like exhibiting a TV show in classroom in order to illustrate a theme, for example, would then be made impossible by DRM. Additionally, the main problem would be the transfer of power to the broadcasters: they alone would be able to decide what could and what could not be copied. In the best case scenario, even if someone is allowed by the broadcasters to copy a show, it will not be possible to take it legally anywhere else without breaking the DRM – not even to a friend’s house or to a classroom, a portable media player or work.

Proprietary DRM technology collects royalties

The DRM proposed in Brazil is the High-bandwith Digital Copy Protection (HDCP). It is a proprietary standard, and manufacturers must pay royalties for its usage. Royalties, in turn, will be collected from consumers purchasing the set-top boxes. In other words: you pay for a technology that does not do you any good. Conversely, it reduces the utility of your TV system. Additionally, HDCP has been pointed out by many studies as a fundamentally flawed protection technology. It will be easy to break it and to manufacture DRM-free set-top boxes, giving birth to a parallel market that simply eliminates the benefits of the Digital Television over the national industrial policy.

And it goes further – according to the chairman of the Institute for Television Studies and former member of the Advisory Committee of the Brazilian Digital TV System in Brazil, Nelson Hoineff:

“Very recently, manufacturers of TV sets asked government, if not allowing definitely the DRM for equipments, to at least allow them to have devices which would comply with future forthcoming DRM needs. Discussions about copyright and DRM are at the core of the most important discussion that is right now being undertaken on the digital TV implementation in Brazil.”

Who will pay the bill?

Proprietary and expensive, HDCP system would make set-top boxes even more expensive than the “one hundred dollars” promised by Minister Helio Costa. Some recent estimates indicate that the set-top boxes might cost up to US$ 400 – and we are talking about a country in which 1/3 of the population have per capita incomes of less than US$90. Considering that more than 90% of the households have television sets, think about a television divide between those with and without access to digital television.

Throughout a complicated license scheme, in which HDCP is offered as a feature of the HDMI connector, there is also a promise that the royalties might actually be cheaper if you buy HDMI with the DRM than without it. Nevertheless, who can guarantee that the cost of royalties – that must by paid annually – will not be increased in a few years, to compensate for this initial discount?

The largest consumer group in the country, the Institute for Consumer Defense (IDEC), recently published an article in one of the most popular newspapers in Brazil criticising the implementation of DRM in digital television. IDEC argues that "the anti-copy system simply does not work, as demonstrated by studies made in the US". It continues:

“MPA wrote a reply to our article claiming that there has been no opposition in the United States against the implementation of the DRM. DRM was actually rejected by public interest and consumer organizations in the USA. It would be worse for consumers and would not stop piracy.”

IDEC has been opposing DRM for some time – in May, it launched an anti-DRM campaign named ’Technological Restrictions: You Pay for it and Get Less’, in a partnership with the A2K Brazil project, run by the Center for Technology & Society at FGV School of Law. The Association of Housewives, Consumers and Citizenship also supported IDEC in its fight against DRM on Digital TV.

In Brazil, TV services must be governed by public interest. A political system that allows the adoption of a knowingly inefficient system, which implicates costs and no benefits to consumer, is a defective political system. Or, at least, it is giving too much importance to only a few speakers.

Article originally published in iCommons’ website