WASHINGTON-A technology expert warned last week that if Congress authorizes the Federal Communications Commission to require a broadcast flag in digital TV transmissions, the FCC could wind up as a gatekeeper for innovation.
A broadcast flag is coding that would prevent the indiscriminate copying of content sent over the air. Broadcasters argue a flag is necessary to protect the copyrights of content producers. The FCC agreed, and in 2004 the agency approved 13 different broadcast-flag readers. However, the American Library Association and others sued to stop the movement. A federal appeals court took on the case, and ruled that the FCC didn’t have the jurisdiction to require a broadcast flag. Congress is now examining whether it should give the FCC authority to reinstate the flag.
As more and more content becomes available in digital formats, people can copy that content over and over without any degradation of quality. Thus, content providers could be stripped of millions of dollars if people start recording TV content sent over the air, and passing it along, either for free or for a charge. Although last week’s hearing focused mainly on broadcast TV and radio, the discussion also turned to newer technologies like cell phones and how they would be impacted by flagging technologies.
“As technology converges, the range of devices capable of displaying, receiving or recording flagged video content is growing very broad. People can now watch video programming not just on TVs, but on portable digital video disc players, on general-purpose computers, on iPods, on Internet-enabled mobile phones, through personal video recorders like TiVo and through computer game consoles,” said Leslie Harris, executive director of the Center for Democracy & Technology. “The FCC’s flag rules would have had an impact on this entire range of technology products, and would give the FCC ongoing approval authority over the introduction of new video-capable technologies. An innovator seeking to develop a new and improved device would need to either license and incorporate a flag-compliance technology already approved by the FCC, or, if the device involved features or functions not contemplated by existing technologies, apply to the FCC for approval of new technology. In effect, the FCC would serve as a gatekeeper for the entry to new technologies into the video marketplace.”
Requiring broadcast flags could make some products obsolete. “Current versions of TiVos (and other digital video recorders), iPods (and other MP3 players), cell phones and PlayStation Portables would not work with analog hole-closing compliant devices, rendering them virtually obsolete,” warned Gigi Sohn, president at technology and law think tank Public Knowledge. “Is it good policy to impose a technological mandate like the broadcast flag and closing the analog hole that would result in consumers having to replace most of the new devices that they just purchased?”
In addition to a broadcast flag, the Recording Industry Association of America wants an audio flag to protect digital recordings broadcast in digital radio-a new format being used by 624 radio stations.
The National Association of Broadcasters said the time has come for a video broadcast flag, but suggested Congress wait before authorizing an audio flag, said Dan Halyburton, senior vice president & general manager of group operations for Susquehanna Radio.
“Local broadcasters support legislative efforts to immediately codify the broadcast flag for video. We believe, however, that copy protections on the audio side merit further discussion,” Halyburton said.
A legislative draft circulated by Sen. Gordon Smith (R-Ore.) would authorize both a broadcast and audio flag.
The opposition, led by CDT and the ALA, said Congress should be explicit about what exceptions to the flag it wants. However, one senator said the entire approach might be wrong.
“I don’t know of a case when the government mandated a specific technology. Maybe, the sky really is falling this time,” said Sen. John Sununu (R-N.H.).
“The sky is falling,” replied Smith. “It is called going from analog to digital.”
