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ACTION ALERT: Broadcast Flag Hidden in Telecom Bill

June 20, 2006 ,

UPDATE: Senator Sununu will be offering an amendment to strike the broadcast and radio flag. But it won’t happen without your help. Click here to find out more.

If you’re saying, “Broadcast Flag? I thought we defeated that?You’re right! But we’ll have to do it again. But we’ll have to do it now, as the bill is being marked up THIS THURSDAY

Amidst all the Net Neutrality hubbub you might have missed the return of the Broadcast Flag, this time tucked into Senator Stevens’ 151 page telecommunications bill, S.2686. What’s an onerous copy protection scheme doing in the middle of a telecommunications bill? If you’re confused, you should be, it’s a tactic designed to sneak in a regulation that’s been repeatedly rejected by both Congress and the courts.

The most recent version is worse than any before, without any real exceptions for fair use. Even worse, this time it’s paired with an Audio Broadcast Flag that will cover digital and satellite radio too. Government technology mandates all around!

Contacting your Senators is vital to defeat the Broadcast Flag—again.

Below you will find:

  • Senate Commerce Committee members contact information.

  • Talking points about the broadcast flag and specific problems with this bill.

If your member is on the committee, give him/her a call and tell them why the broadcast flag is still a bad idea. If you don’t have a member on the committee, try calling Chairman Stevens or Co-Chairman Inouye.

Once again, thank you for your effort!

The Public Knowledge Team

General and Specific Talking Points:

  • No Government Mandated DRM:

The flag makes the FCC in the role of gatekeeper for new technologies: any device that might receive DTV, or connect to a device that receives DTV must first be approved by the FCC. This includes computers, and anything that might then connect to the computer over a home network, or the Internet. As DC Circuit Judge pointed out at oral argument, the broadcast flag regulation would give the FCC the authority to regulate washing machines, if they were connected to a home network. If the Flag passes, the FCC will control innovation in the consumer electronics market. There are other options for protecting content, and the marketplace should sort them out.

  • Consumers Will Bear the Burden:

The 2009 digital television transition will make millions of television sets obsolete, unable to receive broadcast television signals without a costly conversion box. The flag makes this problem even worse, as many commonly used devices like VCRs and DVRs won’t work with new government mandated equipment. Consumers will be forced to buy new equipment–a boon to the consumer electronics industry, but a boondoggle for everyone else.

Even those who figure out why they can’t connect their old VCR to their new TV might still be in trouble, since the bill approves thirteen different copy control specifications. These aren’t necessarily interoperable, so even if you buy a flag-compliant DVR, it may not work with your flag-compliant TV! Consumers will bear the burden of this regulation in both costs and confusion.

  • Limits Fair Use:

As the May 11, 2005 Congressional Research Service report noted, the flag will prevent important fair uses, like the ability of teachers to engage in distance learning and the ability of individuals to email fair use portions of works to themselves and others. The most recent draft’s “expedited process” to approve new technology for distance learning is no solution at all. Expedited process or no, few such programs have the funding to replace all of their existing technology, which the broadcast flag will render instantly obsolete.

News excerpts are crucial to an increasingly multimedia political discourse. This legislation cripples this right by leaving the decision as to whether news content should be covered by the flag to broadcasters, who have every incentive to lock down their exclusive content, fair use or no. Both the audio and video flags gut the copyright protections that protected home taping and time shifting. No more mix tapes off the radio!

  • No Evidence the Flags are Needed:

The flag is about protecting free over the air digital television, but HD content is already broadcast in a Flag-free world, with no evidence of the predicted widespread piracy. While some content providers threatened to withhold content if the flag was not implemented, they never followed through. Evidence of digital radio piracy is even thinner: the RIAA has provided zero convincing evidence that recording off the radio has lead to Internet piracy. The vast majority of music on P2P networks comes from songs ripped–legally—from CDs. This is about stifling innovation, limiting the consumers’ rights, and forcing them to pay over and over for the same content, not piracy.

  • Specific Problems with this Bill (S. 2686):

It reinstates the FCC’s previous version of the broadcast flag, except it says that the FCC can amend it in any way it sees fit–meaning it could throw out the 13 approved technologies, it could allow the MPAA a greater say in the approval process (as was originally contemplated), and it could again say that it doesn’t have to permit fair use.

Congress is mandating the use of DRM, plain and simple. Although one part of the bill seems to give a nod to fair use, it’s done in the same way as it was under the DMCA. Meaning, the bill ignores fair use. It reads that the FCC’s regulation won’t affect fair use rights–well, it won’t. Those fair use limitations still exist under the copyright law–but as we know well, DRM legally trumps fair use thanks to the DMCA.

It pretends to prevent the flag recording/copying function from being used for “news and public affairs programming the primary commercial value of which depends on timeliness,” however, it leaves it up to the broadcasters to decide what falls into that limitation. Broadcasters would use the broadcast flag to “protect” their content when broadcast over television, by claiming it doesn’t fall into the “timeliness” limitation.