PK President Gigi Sohn submits the following statement for the record: Hearing on Broadcast and Audio Flag before the Senate Committee on Commerce, Science and Transportation, January 24th, 2006.

This statement is available in PDF format
here.

Statement for the Record
of
Gigi B. Sohn, President
Public Knowledge

Before the
U.S. Senate Committee on Commerce, Science & Transportation

Hearing on:
“Broadcast and Audio Flag”

Washington, DC
January 24, 2006

Chairman Stevens, Co-Chairman Inouye and other members of the
Committee, my name is Gigi B. Sohn. I am the President of Public
Knowledge, a nonprofit public interest organization that addresses
the public’s stake in the convergence of communications policy
and intellectual property law. I want to thank the Committee for
permitting me to submit this statement for the record on the
broadcast flag and radio content protection. I specifically want to
focus on the impact of these technological mandates on consumers.

As some of you know, I served as counsel to the nine public interest
and library groups that successfully challenged the Federal
Communications Commission’s (FCC) broadcast flag rules in the
United States Court of Appeals for the District of Columbia Circuit.
My organization financed and coordinated the case, which is titled
American Library Association v. FCC, 406 F.3d 689 (D.C.
Cir. 2005). I have attached a copy of the court’s decision and
a copy of petitioners’ opening brief in the case, and I
respectfully request that they be placed into the record of this
hearing.

Introduction

This hearing could not be more timely. Many of you and your staff
members just returned from the International Consumer Electronics
Show, an event that featured an amazing display of new innovative
technologies and newly forged partnerships between technology
companies and content companies. Here are just a few examples:

• Microsoft demonstrated new versions of its software that enables
  the playback of a consumer’s favorite media, whether on
  the individual’s home office monitor, living room
  television, or PDA. The company has also developed a new music
  service in conjunction with MTV, VH1, and CMT music channels.

• Innovators like DigitalDeck, NewSoft, SlingMedia, and Sony each
  have developed competing technologies that allow consumers to
  remotely watch the television playing in their living rooms on a
  laptop, mobile phone, or portable gaming console.

• Yahoo! announced the development of software and services that
  enable consumers to view, create, and share content between
  their mobile phones, computers and living rooms, all using the
  Internet.

• Google developed a distribution system to allow anyone to
  provide videos for free or for sale, and allow others to
  download that content to a computer, Apple iPod, or Sony Play
  Station Portable (PSP). Google has already announced content
  distribution agreements with large content providers like CBS
  and the NBA. This follows the recent success of NBC, ABC, and
  ESPN, which is distributing programming in partnership with
  Apple’s iTunes.

• TiVo displayed a soon-to-be-released software update that makes
  it simple for consumers to watch their favorite television shows
  on popular players like the iPod and PSP. And soon, the next
  generation TiVo recorder will help consumers record over-the-air
  high-definition television.

• Together, XM Radio and Pioneer developed an innovative portable
  satellite radio player that allows consumers to automatically
  record their favorite songs or shows while they are being
  broadcast. A consumer’s preferences are stored on the
  radio, and when connected to a computer, XM’s software
  helps the consumer to find more information about the artists,
  purchase music through the new Napster, and discover other songs
  and shows by similar artists.

The message of the Consumer Electronics Show is clear. The market
for delivering content digitally over new technologies is working.
Consumers can watch and listen to the content they purchase anytime
and anywhere they want. Some of that content will be protected, and
consumers can decide whether that protection is flexible enough. All
of these great developments happened without government
intervention.

The public appetite for buying individual TV shows and songs online
is growing by leaps and bounds. There are more ways than ever to
watch TV and movies and listen to the radio. Sales of HDTV sets are
skyrocketing.

Yet even as innovators in the content industry promote these
alternative distribution technologies, the very same content
industry wants Congress to step in and give it protection from the
vague threat of massive copyright infringement the industry says
these new technologies could facilitate. Let us be clear. The
content industry has not shown that any infringement has resulted
from these technologies. And they certainly have not shown that
government technology mandates will work to stop actual copyright
pirates rather than prevent ordinary consumers from engaging in
lawful activities.

The content industry is asking Congress to impose three technology
mandates: the broadcast flag, radio content protection and an end to
the analog hole. Each mandate 1) injects government into
technological design; 2) places limits on lawful consumer
activities; and 3) increases consumer costs by making obsolete
millions of digital devices. Once consumers start to purchase
devices that are compliant with these technology mandates, the costs
will be enormous. For example:

• A consumer would not be able to record over-the-air local news
  on her broadcast-flag compliant digital video recorder in her
  living room and play it back on a non-compliant player in her
  bedroom (broadcast flag).

• A member of Congress could not email a clip of his appearance on
  the national news to his home office (broadcast flag).

• A consumer would not be able to record analog home movies using
  a digital camcorder and transfer them to a computer in order to
  make a DVD (analog hole).

• A student would be prohibited from recording excerpts from a DVD
  for a college Powerpoint presentation (analog hole).

• A consumer would be unable to record individual songs off
  digital broadcast and satellite radio (radio content
  protection).

• Current versions of TiVos (and other digital video recorders),
  iPods (and other MP3 players), cellphones and play station
  portables would not work with analog hole closing compliant
  devices, rendering them virtually obsolete (analog hole).

• A university could not use digital TV video clips for distance
  learning classes (broadcast flag).

I urge the Committee to think very long and hard about trying to fix
what is not broken. Ask yourselves, in light of recent marketplace
developments, is it good policy to turn the Federal Communications
Commission into the Federal Computer Commission or the Federal
Copyright Commission? Is it good policy to impose limits on a new
technology like HD Radio (that unlike digital television, consumers
need not adopt) that may well kill it? 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?

There are better alternatives for protecting digital content than
heavy-handed technology mandates. Those alternatives are a
multi-pronged approach of consumer education, enforcement of
copyright laws, new business models for content distribution and the
use of technological tools developed in the marketplace, not
mandated by government. The recent Grokster decision and
the passage of the Family Entertainment and Copyright Act are just
two of several new tools that the content industry has at its
disposal to protect its content.

Technology Mandates Harm Innovation and are Costly and Inconvenient
for Consumers

For Public Knowledge, its members and its public interest allies,
the impact of the D.C. Circuit’s decision vacating the
broadcast flag rules goes far beyond the ability of citizens to make
non-infringing uses of copyrighted material that they receive on
free over-the-air broadcast television. Equally as important, the
case limited the power of a government agency that, in the
court’s own words, has never exercised such
“sweeping” power over the design of a broad range of
consumer electronics and computer devices. This hands-off approach
has fostered a robust market place for electronic devices that has
in turn made this country the leader in their development and
manufacture.

For this reason, any attempt to portray legislative reinstatement of
the broadcast flag rules as “narrow” should be viewed
with great skepticism. The rules put the FCC in the position of
deciding the ultimate fate of every single device that can
demodulate a television signal. The broadcast flag rules require the
FCC to pre-approve television sets, computer software, digital video
recorders, cellphones, game consoles, iPods and any other device
that can receive a digital television signal.¹ Thus, the broadcast flag scheme places
the FCC in the position of dictating the marketplace for all kinds
of electronics.

The agency has neither the resources nor the expertise to engage in
this kind of determination. This type of government oversight of
technology design will slow the rollout of new technologies and
seriously compromise US companies’ competitiveness in the
electronics marketplace.

Some argue that the initial FCC certification process worked because
all thirteen technologies submitted to the agency were approved.
However, that is a very superficial view of that process. First, it
is widely known that several manufacturers removed legal and
consumer-friendly features of their devices before submitting them
to the FCC, largely at the behest of the movie studios. Second, the
changing nature of the FCC and its commissioners is likely to make
for widely varying results. Given the fervor of then- Commissioner
Martin’s dissent to the Commission’s approval of
TiVo-To-Go, it is unlikely that such technology would be certified
today under Chairman Martin’s FCC.²

The certification process also exacerbates equipment incompatibility
problems caused by the broadcast flag scheme. Not only will the
scheme prevent consumers from making copies of a TV show on one
system and play it on another, none of the 13 different technologies
approved by the FCC in its interim certification process work with
each other. This means that a consumer who buys one Philips brand
flag-compliant device must buy all Philips brand flag
compliant devices. This raises consumer costs, and also raises
serious questions about competition among and between digital device
manufacturers. ³

Proposals to mandate content protection for digital broadcast and
satellite radio would similarly place the FCC in the position of
mandating the design of new technologies. Draft legislation in the
House gives the FCC the authority to adopt regulations governing all
“digital audio receiving devices.”⁴ In the case of so-called High
Definition (or HD) Radio,⁵ this could destroy this new technology
at birth. Digital broadcast radio benefits consumers through
improved sound quality (particularly for AM radio) and gives radio
broadcasters the capacity to provide additional program streams and
metadata. Unlike digital television, however, consumers need not
purchase digital broadcast receivers to continue receiving free over
the air broadcast radio. Certainly, if digital radio receivers have
less functionality than current analog radio receivers, consumers
will reject them and the market for HD radio will die.

In the case of digital satellite radio, mandated radio content
protection has the potential to cripple this increasingly popular,
but still nascent, technology. XM Radio now has more than six
million subscribers, and Sirius Radio last year passed the three
million subscriber mark. Consumers are buying all types of receivers
for those services, based in part on the new flexibility and
features the equipment offers.⁶The type of content protection the
recording industry seeks would likely slow this incredible growth.

The Content Industry Has Not Justified the Need for Technology
Mandates

Hollywood’s core justification for imposition of the broadcast
flag scheme can be paraphrased thusly: if the threat of
indiscriminate redistribution of “high value” high
definition television content is not reduced, broadcasters will not
make that content available, thus slowing this country’s
transition to digital TV.⁷

One of the most vocal proponents of this argument was Viacom, which
told the FCC in 2002 that “if the broadcast flag is not
implemented and enforced by next summer, CBS will cease providing
any programming in high definition for the 2003-2004 television
season. And without the security afforded by a broadcast flag,
Paramount will have less enthusiasm to make digital content
available.”⁸

Viacom never did carry out its threat to withhold HD programming,
and the argument that the broadcast flag is necessary to encourage
the broadcast of high value content and the orderly transition to
digital TV transmission has been repudiated in the marketplace.
⁹ First,
broadcasters are making “high value” content available
for HDTV or, “in HD” — 50%¹⁰ of TV shows, including 66
%¹¹ of prime time
programming, is broadcast in high definition. A number of
“high value” sports programming broadcasts, including
Monday Night Football, the Super Bowl, the NBA Finals, the NCAA
Final Four college basketball championship, Major League
Baseball’s All-Star Game and World Series games, all NBC
NASCAR races, the U.S. Open golf tournament, and the Olympics, are
broadcast in HD along with many other select sporting events
throughout the year.¹² Second, the country’s
transition to digital TV is accelerating, not slowing down, as sales
of digital TV sets continue to increase. According to the Consumer
Electronics Association, sales of digital TV sets grew 60% to $17
billion dollars.¹³ According
to Forrester Research, 16 million American homes have digital
television sets. In 2006, that number is expected to rise to 26
million, or one in four households.¹⁴ Indeed, the case could be made that
rather than accelerate the DTV transition, the broadcast flag could
slow the transition when consumers discover that expensive new
television sets have less functionality than their current sets.

The recording industry has similarly not demonstrated that radio
content protection is necessary. The industry does not cite to even
one instance of a digital broadcast or satellite radio transmission
being copied illegally or retransmitted over the Internet. Indeed,
RIAA chief Mitch Bainwol’s recent testimony and comments on
the subject make clear that the real rationale for seeking radio
content protection is not copyright infringement, but the recording
industry’s displeasure over the licensing fees it receives
from broadcast and satellite radio broadcasters.¹⁵

Broadcast Flag and Radio Content Protection Schemes Will Transform
the Federal Communications Commission into the Federal Copyright
Commission

Despite the FCC’s protestations to the contrary, the broadcast
flag scheme and any radio copy protection scheme will necessarily
involve the agency in shaping copyright law and the rights of
content owners and consumers there under. Making copyright law and
policy is not the FCC’s job. It is Congress’ job.
Petitioners brief in ALA v. FCC, at 43-50, lays out this
argument in great detail.

While it is true that the TV broadcast flag scheme does not
completely bar a consumer from recording her favorite TV show, it
does prevent consumers from engaging in other lawful activities
under copyright law. For example, as the D.C. Circuit noted in
ALA v. FCC, the broadcast flag would limit the ability of
libraries and other educators to use broadcast clips for distance
learning via the Internet that is permitted pursuant to the TEACH
Act, Pub. L. No. 107-273, 116 Stat. 1758, Title III, Subtitle C,
§13301, amending 17 U.S.C. §§ 110, 112 & 882
(2002). See ALA v. FCC, 406 F.2d at 697.

This and other examples highlight that while proponents of the flag
may justify it as prohibiting only “indiscriminate”
redistribution of content over the Internet, flag-compliant
technologies actually prohibit any and all distribution, no matter
how limited or legal. For example, if a member of this Committee
wants to email a snippet of his appearance on the national TV news
to his home office, the broadcast flag scheme would prohibit him
from doing so. Video bloggers and other TV watchdogs would similarly
be unable to post broadcast TV clips on their blogs. For example,
the Parents Television Council, which rates television programs
according to how child friendly they are, would be prevented from
posting clips from those programs for parents to see.¹⁶

The fact that the broadcast flag will limit lawful uses of
copyrighted content was detailed in the Congressional Research
Service Report entitled Copy Protection of Digital Television:
The Broadcast Flag (May 11, 2005). CRS concluded there that

While the broadcast flag is intended to “prevent the
indiscriminate redistribution of [digital broadcast] content over
the Internet or through similar means,” the goal of the flag
was not to impede a consumer’s ability to copy or use content
lawfully in the home, nor was the policy intended to
“foreclose use of the Internet to send digital broadcast
content where it can be adequately protected from indiscriminate
redistribution.” However, current technological limitations
have the potential to hinder some activities which might normally be
considered “fair use” under existing copyright law. For
example, a consumer who wished to record a program to watch at a
later time, or at a different location (time-shifting, and
space-shifting, respectively), might be prevented when otherwise
approved technologies do not allow for such activities, or do not
integrate well with one another, or with older, “legacy”
devices. In addition, future fair or reasonable uses may be
precluded by these limitations. For example, a student would be
unable to email herself a copy of a project with digital video
content because no current secure system exists for email
transmission.

CRS Report at 5.

Proposals for digital radio content protection similarly, and
perhaps even more directly, place the FCC in the position of
determining consumers’ rights under copyright law. For
example, the draft House bill gives the FCC the authority to

control the unauthorized copying and redistribution of digital audio
content by or over digital reception devices, related equipment, and
digital networks, including regulations governing permissible
copying and redistribution of such audio content.

Under this proposal, the FCC is placed in charge both of 1)
determining the extent to which unauthorized copying (which is legal
is some circumstances) of digital broadcast and satellite radio
content is permitted; and 2) determining what kind of copying and
redistribution of audio content is permissible.

Not only does this language give the FCC power to set copyright law,
it also directly conflicts with copyright law, specifically the
Audio Home Recording Act - which explicitly gives consumers the
right to record digital radio transmissions for noncommercial
use.¹⁷

A Technology Mandate to Close the Analog Hole is Premature,
Unnecessary and Would Cause Great Consumer Confusion, Cost and
Inconvenience

While this hearing does not specifically address the content
industry’s efforts to close the so-called analog hole through
legislative means, those efforts are closely related to the
broadcast flag and radio content protection initiatives, and are
therefore worthy of mention.

As many of you know, a bill was introduced in the House of
Representatives last year¹⁸ that would mandate that all digital
devices read and obey two specific technologies - an encryption
technology called CGMS-A and a watermarking technology called VEIL.
The content industry claims that both of these technologies are
necessary to ensure that analog content cannot be captured and
digitized for possible indiscriminate distribution over the
Internet.

Preliminarily, I would note that while the CGMS-A + VEIL technology
was discussed at the Analog Hole Reconversion Discussion Group, a
standards group with both industry and public interest
participation, it was quickly dismissed as not worthy of further
consideration. Thus, this technology has not been fully vetted by
industry and public interest groups. If Congress feels it must do
something about the analog hole, it should refer the technology back
to industry and public interest groups so CGMS-A+VEIL can be
thoroughly analyzed for its impact on consumers and the cost to
technology companies. In the complete absence of any such review,
the one-sided imposition of such a detailed technology mandated
would be unprecedented.

More importantly, the proposed analog hole fix suffers from a number
of important substantive flaws. Here are just a few:

• The analog hole technology mandate would be more intrusive
  than the broadcast flag: The content industry’s
  proposal mandates that each and every device with an analog
  connection obey not one, but two copy protection schemes. Thus,
  while the broadcast flag would put the FCC in charge of design
  control just for technologies that demodulate a broadcast
  signal, the proposal would mandate design for every
  device with an analog connector, including printers, cellphones,
  camcorders, etc. Like the broadcast flag, it sets in stone a
  copy protection technology for technologies that are always
  changing.

• The analog hole mandate would obsolete millions of digital
  devices. Popular portable video-playback devices like
  iPods, PSPs, laptops, and cell phones are all analog hole
  non-compliant. Using these kinds of devices in conjunction with
  analog video inputs is critical to the many innovative plans
  introduced at the CES 2006. An analog hole mandate could
  effectively obsolete newly purchased devices and the systems
  with which they work, and would require redesign of these
  devices.

• The analog hole mandate would impose a detailed set of
  encoding rules that would restrict certain lawful uses of
  content. The House bill includes tiered levels of
  restriction based on the type of programming (e.g.,
  pay-per-view, video on demand) that limit lawful uses in a
  manner that ignores the four fair use factors of 17 U.S.C.
  §107. This upsets the balance established in copyright law
  between the needs of copyright holders and the rights of the
  public by placing far too much control over lawful uses in the
  hands of the content producers.

• The mandate would eliminate the DMCA’s safety
  valve. This Committee has been the leader in ensuring that
  the anti-circumvention provisions of the Digital Millennium
  Copyright Act do not unintentionally impinge on fair use. One of
  the common justifications for limitations on fair use imposed by
  the DMCA is that the analog hole is available for individuals
  who, for example want to make a snippet of a DVD using a video
  camera held up to a video screen or connected to analog outputs
  on a TV set.¹⁹ An
  analog hole mandate would eliminate this safety valve.

The Proper Balance Between Content Protection and Consumer Rights
Should Be Set by Copyright Law and Marketplace Initiatives

I am often asked the following question: if Public Knowledge opposes
the broadcast flag, radio content protection and closing the analog
hole, what are better alternatives to protect digital television and
radio content from infringing uses? The best approach to protecting
rights holders’ interests is a multi-pronged approach: by
better educating the public, using the legal tools that the content
industry already has at its disposal, and the technological tools
that are being developed and tested in the marketplace every day. In
the past year alone, the content industry has used and won several
important new tools to protect content, including:

• The Supreme Court’s decision in MGM v. Grokster and
  its aftermath. The Supreme Court gave content owners a
  powerful tool against infringement when it held that
  manufacturers and distributors of technologies that are used to
  infringe could be held liable for that infringement if they
  actively encourage illegal activity. The result has been that a
  number of commercial P2P distributors have gone out of business,
  moved out of the U.S., or sold their assets to copyright
  holders.

• Lawsuits against mass infringers using P2P networks.
  Both the RIAA and the MPAA continue to sue individuals who are
  engaged in massive infringement over peer-to-peer (P2P)
  networks. By their own admission, these lawsuits have had both a
  deterrent and educative effect.

• Passage of the Family Entertainment and Copyright Act.
  The FECA gave copyright holders a new cause of action to help
  limit leaks of pre-release works and made explicit the
  illegality of bringing a camcorder into a movie theatre. It also
  provided for the appointment of an intellectual property
  “czar” to better enforce copyright laws.

• Agreements by ISPs to pass on warning notices. The war
  between Internet Service Providers and content companies has
  begun to cool. Last month, Verizon and Disney entered into an
  agreement by which Verizon will warn alleged copyright
  infringers using its networks, but will not give up their
  personal information to Disney.

• Increased use of copy protection and other digital rights
  management tools in the marketplace. There are numerous
  instances of the use of digital rights management tools in the
  marketplace. iTunes Fairplay DRM is perhaps the most well known,
  but other services that use DRM include MSN music and video,
  Napster, Yahoo Music, Wal-mart, Movielink, CinemaNow and
  MovieFlix. The success of some of these business models are a
  testament to the fact that if content companies make their
  catalogues available in an easily accessible manner, with
  flexibility and at a reasonable price, those models will succeed
  in the marketplace, without government intervention.

These tools are in addition to the strict penalties of current
copyright law, including the DMCA. To the extent that the content
industries are looking for a “speed bump” to keep
“honest people honest,” I would contend that many such
speed bumps already exist, while more are being developed every day
without government technology mandates.

Finally, by far the most effective means of preventing massive
copyright infringement involves the content industry doing what it
took the music industry far too long to do²⁰ - satisfy market demand by allowing
consumers to enjoy fair and flexible access to content at reasonable
prices (inevitably produced in a free market). DVDs are the best
example of the market working. There, a government mandate -the
Digital Video Recording Act - was rejected and an industry-agreed
upon fairly weak “keep honest people honest” protection
system was adopted. Despite the fact that the protection system was
defeated long ago, the DVD market has grown at an astounding rate -
from zero in 1997 to $25,000,000,000 in sales and rentals last year.
Moreover as I noted above, many other new digital music and video
distribution models, developed with content industry support and
industry-agreed upon content protection, are emerging in the market.
We believe that these efforts make government intervention in the
free market unnecessary.

Conclusion

The Consumer Electronics Show demonstrated that the content and
technology industries are moving forward, together, to provide the
digital content and the digital machinery that consumers are buying
and enjoying. Technology mandates like the broadcast flag and radio
content protection are a step backward from this progress, limiting
both innovation and consumer choice while increasing costs to
innovators and consumers. I urge the Committee to look at recent
marketplace developments and consider whether government action here
would do far more harm than good. Thank you.

¹ D.C. Circuit
Court Judge Harry Edwards noted this reach at oral argument when
he said, “You’re beyond transmission…I mean
you’re out there in the whole world regulating****I mean, I
suppose it will be washing machines next.” ALA v.
FCC, Oral Argument Transcript at 31.

² For a detailed
analysis of the flaws of the FCC’s certifications process,
see Center for Democracy and Technology, Lessons of
the FCC Broadcast Flag Process (2005), found at http://cdt.org/copyright/20050919flaglessons.pdf

³ For a detailed
discussion of these issues, see
http://www.publicknowledge.org/content/presentations/bflagpff.ppt

⁴ See HD Radio
Content Protection Act, found at
http://static.publicknowledge.org/pdf/20051103-hd-radio-draft.pdf

⁵ I say “so
called,” because calling a digital radio broadcast signal
“High Definition” is quite misleading. Whereas in the
television context, High Definition connotes a far clearer and
sharper picture, an HD radio signal simply raises the quality of
AM radio to FM standards, and permits the reception of broadcast
radio in places where an analog signal would get cut off, such as
in a tunnel or at a traffic light. Indeed, an “HD”
quality signal is not even a CD quality signal. See, Ken
Kessler, Digital Radio Sucks, it’s Official, found at
http://www.stereophile.com/newsletters/.

⁶ For 2005, XM
Radio forecasts a doubling of retail satellite radio receiver
sales for both services to more than one billion dollars.
See http://www.ce.org/press/CEA_pubs/861.asp.

⁷ See In the
Matter of Digital Broadcast Content Protection, FCC 03-273,
18 FCC Rcd 23550, 23553 (November 4, 2003).

⁸ See
Comments of Viacom In the Matter of Digital Broadcast Content
Protection, MM Docket No. 02-230 at 12 (December 6, 2002).

⁹ D.C. Circuit
Judge Edwards also rejected this argument. See ALA v.
FCC Oral Argument Transcript at 32 (Judge Edwards:
“This in no way — what you do here or not in no way
impairs the ability to … stay on the digital deadline…
. In no way.”).

¹⁰ http://www.ati.com/products/hdtvwonder/

¹¹ For the week
of Jan. 19 to Jan. 25, ABC will broadcast 13 of 32 prime-time
shows in HD. During the same week, CBS will broadcast 31 of 34
prime-time shows in HD; NBC will broadcast 32 of 50 prime-time
shows in HD during the same period. For all 3 networks combined,
76 of 116 (66%) prime-time shows will be broadcast in HD for one
week in January 2006.

¹² http://www.cnet.com/4520-7874_1-5119938-1.html

¹³
http://www.ce.org/Press/CurrentNews/pressrelesaedetail.asp?id=10913

¹⁴ See,
http://biz.yahoo.com/prnews/051220/nytu017.html?.v=36

¹⁵ See testimony
of Mitch Bainwol before House Committee on the Judiciary,
Subcommittee on Courts, the Internet, and Intellectual Property
for the hearing on “Content Protection in the Digital Age:
The Broadcast Flag, High-Definition Radio, and the Analog
Hole,” November 3, 2005 at 4, found at http://judiciary.house.gov/media/pdfs/bainwol110305.pdf
; and Mitch Bainwol, Out P2P Paranoia, In: Platform Parity,
Billboard Magazine, January 7, 2006 at 4.

¹⁶ See
http://www.parentstv.org.

¹⁷ 17 U.S.C.
§§1000-1010.

¹⁸ H.R. 4569:
The Digital Transition Content Security Act of 2005, 109th Cong.
2005. Found at: http://www.publicknowledge.org/issues/hr4569

¹⁹ See Testimony
of Dean Marks, Senior Counsel Intellectual Property, Time Warner,
Inc., and Steve Metalitz, Representing Content Industry Joint
Commenters, before the Copyright Office in Rulemaking Hearing:
Exemptions From Prohibitions On Circumvention Of Technological
Measures That Control Access To Copyrighted Works, May 13, 2003 at
60-61: “I think the best example I can give is the
demonstration that Mr. Attaway [MPAA Executive Vice President for
Government Relations and Washington General Counsel] gave for you
[Marybeth Peters, Registrar of Copyrights] earlier this month in
Washington in which he demonstrated that he used a digital
camcorder viewing the screen on which a DVD was playing to make a
excerpt from a DVD film and have a digital copy that could then be
used for all the fair use purposes….” (Mr. Metaliz at
60.) “I agree with everything Steve has just said about fair
use copying or taking clips … with digital camcorders and
analog camcorders being widely available …” (Mr. Marks
at 61).

²⁰ See Keynote
Address of Edgar Bronfman, Chairman and CEO of Warner Music at
http://www.tvworldwide.com/events/pff/050821/agenda.htm.
“The Music Industry, like almost every industry faced with
massive and rapid transformation first reacted too slowly and
moderately, inhibited by an instinctive and reflexive reaction to
protect our current business and business models.”