Take the red pill and see how deep the analog hole goes?

It's no secret that the media conglomerates and their agents are nosing around finding some way to close the so-called analog hole. This whole a-hole business flared up back around '02, '03 and now we've got another outbreak of a-hole fever in the form of the Sensenbrenner/Conyers Analog Hole Bill.

There is an aspect of this I haven't seen discussed yet. Although it wasn't discussed in these terms, didn't the 2600 DVD lawsuit address the analog hole directly, and at least suggest that it is protected under fair use?

The constitutional argument against the DMCA that 2600's lawyers made, that it represented a restriction of fair use rights, which was rejected by the court on the basis that it was still possible exercise fair use, was widely ridiculed at the time. The image of pointing a camcorder at your TV to make a "copy" of a DVD was held up as indicative of the kind of technologically clueless approach to the realities of the digital environment that made rotten legislation like the DMCA possible in the first place. But take another look at the language in the decision:

the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, such as commenting on their content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie.

Although the technological means described are crude, this is nothing less than a description of the analog hole. I can see no legal difference between pointing a camcorder or microphone at your television and recording a signal directly from the analog outputs on your computer, or indeed recording audio or video directly off the sound or video card of your computer...

This language suggests a legal precedent for a constitutional objection to any analog hole legislation. Just one more reason for electronics manufacturers to refuse to get on board.

All right, enough politics. Next week, back to my favorite kind of phree musique - the kind the artists want you to hear.

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