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Digital Broadcast Flag Bill Revisited
January 23, 2006
Thomas Mennecke
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The American entertainment industry, largely represented by the RIAA and MPAA, are pushing for a new legislative effort aimed at deterring the proliferation of high definition material on file-sharing networks. As technology marches forward, our current analog audio and video broadcasts will be replaced by high definition radio and television. With the price of high definition TV and radio devices plummeting, the RIAA and MPAA are concerned that perfect digital copies will find their way on file-sharing and P2P networks. Indeed as this material is already finding its way online, these entertainment trade organizations are launching their latest attempt to stop the hemorrhaging by supporting the “Digital Content Protection Act of 2006.”

The Digital Content Protection Act (DCPA) at this point is a proposed bill. Specifically, the bill is an amendment to Title 47, Part 303 of the US Code of Federal Regulations. This Title and Part articulates the powers and duties of the Federal Communications Commission. The DCPA would add two important amendments to this Title and Part:

1) “[Give the FCC the] authority to adopt regulations governing digital television receivers to the extent necessary to implement redistribution control…” and

2) “[Give the FCC the] authority to adopt such regulations governing digital audio broadcast and satellite digital audio radio transmissions and digital audio receiving devices that are appropriate to prevent the indiscriminate unauthorized copying…”

In other words, this bill represents the reintroduction of the broadcast flag. The broadcast flag is digital code that accompanies a high definition audio or video transmission with the intention to limiting unauthorized replication. Digital radio or television manufacturers would be required to incorporate devices capable of receiving and interpreting these flags in order to prevent consumers from copying high definition programming.

As many will recall, the FCC attempted to implement broadcast flag technology as early as November 2003, but was thwarted by the District of Columbia Court of Appeals. The appeals court stated the FCC overstepped its bounds, as it did not have the power or authority to force HD radio or television manufacturers to implement broadcast flag technology. The DCPA resolves these issues by giving the FCC the power and authority necessary to implement broadcast flag technology.

Broadcast flag technology has long been an enormous point of contention. Loved by the entertainment industry, hated by consumer and technology groups, broadcast flag technology is a hotly contested item. Although defeated in May of 2005, the Senate Commerce Committee is scheduled to hold hearings on its reintroduction on Tuesday, January 24th. Like everything in life, there are two sides to this increasingly lengthy drama.

On one side stands consumer advocacy and technology manufacturing groups. In particular, the EFF (Electronic Frontier Foundation) has been predominantly vocal and active in preventing broadcast flag measures from becoming policy. The EFF is greatly concerned over a specific section of the bill, where the consumer organization contends the DCPA would freeze fair use rights entitled to consumers.

The bill specifies a certain criteria digital audio and video receivers must comply with in order to receive FCC approval. Specifically the DCPA states any proposed regulations aimed at preventing unauthorized duplication must “permit customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law…” Although this is a permissive criterion, the EFF feels this deflects fair use. Fair use, the EFF argues, is a forward-looking doctrine, not one that resides in the past. If allowed to pass, the EFF feels the future of technological innovation may be stymied, as “new gizmos will have to be submitted to the FCC for approval, where MPAA and RIAA lobbyists can kill it in the crib.”

Taking the converse position is the RIAA and MPAA. Long lobbying for broadcast flag technology, these trade organizations have testified such technology is imperative for their survival. Without it, everyone from artists, songwriters, broadcasters, advertisers and on-demand music services such as iTunes will experience a wide range of disastrous effects. The RIAA also takes exception to the EFF’s claim that fair use and technological innovation will be crushed, as it has articulated it is not interested in preventing consumers from making copies of music from the radio – much as they are permitted to do now.

“The recording industry is not seeking to (1) stop or delay the rollout of HD Radio or other platforms; (2) prevent consumers from listening to radio as they do today; (3) prevent time-shifting of radio programming; or (4) prevent a consumer from hitting a record button when a song comes on that they like.”

Whenever two completely polarized views clash, middle ground is usually reached. Perhaps the most favorable section of this bill dictates that all sides must come together and discuss its implementation. The EFF, technology groups and other pro-consumer advocacy organization groups have been successful in fending off broadcast flag technology in the past. How they will fair this round is anyone’s guess. While the EFF may not obtain an absolute victory, it’s doubtful the RIAA and MPAA will either.


This story is filed in these Slyck News categories
Technology News :: DRM

You can read the text of this bill here.

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