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Do you incorporate broadcast content into video shorts for online viewing? Whether you create a personal video blog, review TV shows, or archive interesting clips of local news, you rely on technology to make your work possible. Legislation currently pending before Congress would sharply limit your ability to record and distribute excerpts of broadcast television and other content over the Internet.
What is the Broadcast Flag?
The broadcast flag itself is simply a few bits of information included in a digital television (DTV) signal. The teeth of the broadcast flag is a legal mandate requiring all DTV tuners and all attached devices to detect the flag and protect flagged content.
In order to pass the FCC's approval process, flag-compliant devices may only send the digital video signals to secure outputs, which only connect to other flag-compliant devices. Any image sent to analog outputs, or digitally to devices the FCC has not approved, must be downgraded to the picture quality of a traditional television signal. What this means is that to receive a high-quality DTV picture, any device that can connect digitally to a DTV receiver--so-called "downstream devices," including televisions, TiVos, computers, video iPods, and anything that might connect over a home network--must also recognize the broadcast flag and be certified by the FCC.
The stated goal of the broadcast flag mandate is to prevent distribution of digital television content over the Internet. Thus, flag-compliant devices must keep DTV broadcasts from the Internet to be certified by the FCC. However, the broadcast flag as currently conceived would also prevent the redistribution of even the smallest program excerpt.
What is the Analog Hole?
Any digital protection method, from the broadcast flag to DVD encryption, has a big loophole in the form of unprotected analog outputs. These familiar red white and yellow plugs on the back of TV's, DVD players, and video cameras can be used to convert encrypted video to an unencrypted digital form that can then be distributed over the Internet. This is the so called "Analog Hole." You may already use just such a method to record cable or satellite television programming.
Hollywood has a plan for this too. Legislation pending in the current Congress imposes a technology mandate similar to the broadcast flag on any device capable of digital to analog conversion. Like the flag, it is a combination of a code embedded in the video signal and a legal mandate on device makers to recognize and protect that code. In this case it is a watermark on the video image and a bit of code embedded in the section of the TV signal traditionally used for close captioning. If implemented, it would completely eliminate your ability to legally copy, excerpt and distribute protected television and video content over the Internet.
What is 'Fair Use'?
Fair use is an exception under copyright law that permits certain uses of copyrighted content. Quoting passages from a book in a review is a fair use; so is recording a television program to watch in private later. Most relevant for your purposes: excerpting portions of a video program for educational purposes, critical commentary, or parody is also fair use. In short, you rely on the fair use exception to legally do what you do.
How Do the Flag and Hole Legislation Interfere With Fair Use of Broadcast Video?
The broadcast flag and Analog Hole system makes no fair-use distinctions whatsoever. Under the Digital Millennium Copyright Act, circumventing digital protection measures for any reason, including fair use, is a federal crime with stiff penalties. Thus, even when the consumer would be legally permitted to excerpt a video segment under copyright law, the broadcaster could flag the content, making it technologically impossible to excerpt. In this way, your fair use right becomes subject to the whim of the broadcaster.
A broadcast flag could effectively prevent:
- Online posting of your favorite television advertisements.
- Remixing political speeches into parodies.
- 'Vlog'(video blog) reviews of broadcast TV shows.
- Excerpting local news clips for classroom use.
What about my old television and DVR? Will they still work?
Digital television will still be broadcast unencrypted, so current DTV tuners will receive and pass on flagged content without restriction. So as long as all of your devices were purchased before the flag goes into effect you will (probably) be fine. But if you buy any new devices (such as a new computer), they will be subject to the restrictions and downgrading the Flag requires. Once the mandate goes into effect, it will apply across the board to a broad range of devices.
Doesn't the broadcast flag contain exceptions for news programming?
The version of the broadcast flag contained in the current Stevens telecommunications bill prohibits broadcasters from applying the flag to "news and public affairs programming whose primary commercial value is timeliness." However, the legislation leaves the decision as to what those programs are is left in the hands of broadcasters. CBS recently announces a deal to package programs such as "60 Minutes" for DVD, suggesting that their interpretation of this provision would be quite narrow indeed.
I record content from satellite or cable. How will this affect me?
Satellite and cable providers have their own methods for limiting distribution of their programming, some of which are more stringent than the broadcast flag. In most cases, the only method for recording, excerpting and redistributing cable and satellite program is through analog outs, a method explicitly threatened by the Analog Hole legislation. Analog Hole legislation would completely eliminate the only legal method of extracting video from cable and satellite program for the purposes of fair use.
I use Open Source Software to record video, how will I be affected?
Open Source software used to record or demodulate digital television signals, or facilitate digital to analog conversion would almost certainly be illegal. Both the broadcast flag and Analog Hole standards impose robustness standards to prevent users from modifying or evading the restrictions imposed by the hardware or software. Most open source licenses require that users be able to view and modify source code, which would clearly violate the robustness standards. An FCC proceeding to evaluate how the broadcast flag would apply to open source software was suspended when the Flag was struck down by the DC Circuit.
Other Problems With the Broadcast Flag and Analog Hole