A BILL To promote the deployment of broadband networks and services.

• The full text of this bill, as reported in the Senate as the "Advanced Telecommunications and Opportunities Reform Act" or the "Communications Act of 2006" is available here (PDF) (8/4/2006).
• The full text of this bill, as reported in the House as the "Communications Opportunity, Promotion and Enhancement (COPE) Act of 2006" is available here (PDF) (5/17/2006).

Summary

Amends the Communications Act of 1934 to allow an eligible person or group to obtain a national franchise to provide cable service in a franchise area in lieu of any other authority under federal, state, or local law. Requires: (1) the filing of a franchise certification with the Federal Communications Commission (FCC); and (2) cable operators with a national franchise to provide a specified minimum of channel capacity for public, educational, and governmental use, and to meet certain other requirements. Provides for FCC enforcement of franchising requirements.

Requires an annual FCC report on the deployment of cable service, including deployment by new cable operators.

Empowers the FCC to enforce its broadband policy statement and principles. Requires an FCC study regarding whether such statement and principles are being achieved.

Requires each VOIP (voice over Internet protocol) service provider to ensure that 911 and E-911 services are provided to subscribers of VOIP services. Outlines rights and obligations of VOIP service providers.

Allows the municipal provision of cable services, requiring competition neutrality among all providers in an area.

Prohibits a broadband service provider from requiring a subscriber, as a condition for such service, to purchase any cable, telecommunications, or VOIP service offered by the provider.

Directs the FCC to further the development of seamless mobility, requiring a study identifying barriers to achieving seamless mobility.

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.

Overview

What is the Broadcast Flag?

What is the Analog Hole?

What is Fair Use?

How do the Flag and Hole Legislation Interferes With Fair Use of Broadcast Video?

Common Questions:

What about my old television and DVR? Will they still work?

Doesn't the broadcast flag contain exceptions for news programming?

I record content from satellite or cable. How will this affect me?

I use Open Source Software to record video, how will I be affected?

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.

Common Questions

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

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__Government Mandated DRM (Digital Rights Management)__: Puts the government--not the market-in charge of selecting technology.

__Overly Broad Scheme__: Will affect every video-enabled consumer device.

__Will Confuse Consumers__: Video equipment will no longer be "plug and play."

__Not About Movie Filesharing__: Protects free over the air digital television.

__Totally Ineffective__: No effect on filesharing or dedicated, technology savvy pirates.

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For Immediate Release

The Net Neutrality amendment failed on an 11-11 vote. The ten committee Democrats joined Republican Senator Olympia Snowe voting in favor of the language with the remaining 11 committee Republicans voting against it.

The following is the statement of Gigi Sohn, president of Public Knowledge, on the Senate Commerce Committee's approval of telecommunications legislation.

"Over the course of two days, the Senate Commerce Committee handed control of Internet content to the telephone and cable companies, and control over the design of consumer electronics to the movie and recording industries. In each case, big companies win, and consumers lose.

Right now, filmmakers have a rare opportunity to influence the development of copyright law. Congress is looking for ways to address the problem of "orphan works:" how a copyrighted work may be used when its owner cannot be found. The U.S. Copyright Office and members of the House and Senate want to find a solution that is friendly to filmmakers and small artists. Unfortunately, groups representing photographers and textile manufacturers are trying to kill orphan works progress, which is why members of Congress need to hear from you...

For Immediate Release

Earlier this evening, the House defeated the Markey amendment to telecommunications legislation (HR 5252).

The following statement is attributable to Gigi B. Sohn, president of Public Knowledge:

It is a shame that the House turned its back on the open essence of the Internet. Instead, the House ignored the arguments of consumers, technology companies and interest groups from across the political spectrum and voted to allow the telephone and cable companies to discriminate by controlling the content that will flow over the network and to assess whatever additional fees the telephone and cable companies want to charge on top of normal access rates.

The House has rushed to pass HR 5252 at the urging of the telephone and cable companies, who feared the growing public support for an enforceable net neutrality law. With the defeat of the Markey amendment, the House bill will have no meaningful protections for consumers or service providers against the discriminatory practices that the telephone and cable companies will employ to favor their own content and services. Today's Internet, which gives consumers control over what applications, services and content they want to access, will be replaced by an Internet that looks like a cable system -- where network providers determine who gets on and at what price.

For Immediate Release

Draft legislation to be considered Thursday by a House subcommittee "would constitute an extraordinary expansion of copyright rights that would harm technology, innovation, and consumers," according to a letter sent to Capitol Hill signed by 19 companies and groups.

The draft bill, to be considered by the House Subcommittee on the Courts, Intellectual Property and the Internet, would put home recording in jeopardy and would require even temporary copies of movies or songs to be licensed.

"We can see the need for making improvements in copyright law, but provisions in this bill will be harmful to consumers and to innovation," said Gigi B. Sohn, president and co-founder of Public Knowledge. "Taken together, this draft bill, along with other legislation being considered in Congress and lawsuits filed against XM Radio and Cablevision, would have severe effects on consumers' rights and on technological innovation."

This a a page for public service announcements (PSAs) recorded to educate others on the issue of net neutrality. They are all created under a Creative Commons Attribution 2.5 License, so you can drop them in your own podcast/videocast/whatevercast. Please help promote net neutrality by including the content below to your own podcast episodes.

Right now, we've just posted PK's PSAs, but hopefully we will soon have at least a few more notable voices to add to your podcast. When there are more PSAs, I will post them to the PK Blog|RSS

Audio

June 20, 2006: Prof. Lawrence Lessig, Professor of Law at Stanford Law School, founder of the school's Center for Internet and Society, and PK board member.

• Download it here.

June 14, 2006: Damian Lacedaemion of This Spartan Life, on net neutrality.

• Download it here

An audio recording of PK's own Alex Curtis, on net neutrality.

• Download it here

Video

June 14, 2006: Christian Coalition of America and MoveOn.org together support NN PSA.

• preview the video here on VideoBomb

• download the video here to add to your own videocast

June 14, 2006: Damian Lacedaemion's Video PSA from This Spartan Life.

• preview the video here on VideoBomb

• download the video here to add to your videocast

May 19, 2006: A video clip with Moby from a press conference talking about net neutrality.

• preview the video here on VideoBomb

• download the video here to add to your videocast

A BILL To provide for increased competition in telecommunication services, promote the expanded use of broadband services, and for other purposes.

The full text of the draft is available here (PDF).

For Immediate Release

Background: Yesterday, Rep. Lamar Smith (R-TX), chairman of the House Intellectual Property Subcommittee, introduced HR 5439, the Orphan Works Act of 2006. The bill is scheduled to be marked up in subcommittee tomorrow (May 24).

Public Knowledge is part of a coalition that has been active in promoting the use of orphan works. Others in the group are: Association of Independent Video and Filmmakers; Doculink; Film Arts Foundation; FIND (Film Independent); International Documentary Association; Independent Feature Project (IFP); National Alliance for Media Arts and Culture; National Video Resources.

The following is a statement from Gigi B. Sohn, president and co-founder of Public Knowledge:

A Bill to amend Title 17, United States Code, to provide for limitation of remedies in cases in which the copyright owner cannot be located, and for other purposes.

The full text of this bill is available here (PDF).