Study: Flag won't fly legally
Copyright 2005 Reed Elsevier Inc.
June 2, 2005, Thursday
Washington — Hollywood's effort to capture the broadcast flag may have been made more difficult by a recent report prepared for Congress.
"Copyright Protection of Digital Television: The Broadcast Flag," prepared by Congress' exclusive research arm, suggests that the DTV antipiracy technology might interfere with legitimate copying uses. Report also suggests that critics of the technology may be right in their assertions that it will stifle innovation and violate First Amendment rights.
A spokesman for the Motion Picture Assn. of America, which has supported broadcast flag, disagreed with that interpretation, saying the report is mainly "speculative in nature."
Last month, a federal appeals court threw out rules that the Federal Communications Commission promulgated requiring manufacturers of certain television sets, personal computers and VCRs to include broadcast flag technology, which is intended to prevent rampant illegal copying and distribution of digital content on the Internet (Daily Variety, May 9). The court said the FCC lacked the authority to issue the rules.
Broadcast flag proponents, chiefly the MPAA, have since turned to Congress, hoping it will enact legislation giving the FCC the necessary authority. But the report raises questions as to whether such legislation would withstand a court challenge.
"While the broadcast flag is intended to prevent the indiscriminate redistribution of (digitally 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," the report states.
"However," the report continues, "current (broadcast flag) limitations have the potential to hinder some activities which might normally be considered 'fair use' under existing copyright law."
Consumer electronics and information technology groups criticized broadcast flag rules because their attendant licensing terms for approving flag-compliant devices are too vague and thus could stifle innovation. The report notes that, before the court threw out the rules, the FCC had yet to establish clear criteria for evaluating whether devices are compliant though the agency had promised to do so.
Moreover, civil libertarians and consumer-rights groups complained that the FCC's broadcast flag rules contained no exemption for public interest content, news or works in the public domain.
"The FCC has so far declined to adopt language to prevent content providers from using the broadcast flag on such programs," the report concludes, "largely because of the practical and legal difficulties of determining which types of broadcast content merit protection from indiscriminate redistribution and which do not," thus constituting potentially serious First Amendment issues.
The report implies that the rules would have to be revised or clarified before Congress passes any legislation giving promulgating authority to the FCC. Revisions could delay any congressional action by months.
"We've been raising these issues all along," said Mike Godwin, legal director for Public Knowledge, one of the groups that have opposed the FCC rules. "This report shows that, yes, some lawful uses are going to be restricted" if Congress were to reinstate the existing rules by legislation. "It also shows that the state of technology today is such that, even if you think you're just preventing redistribution over the Internet, other legitimate uses will be prevented, too."
The most significant point about the report, Godwin added, is that "this is not from an advocacy group. This is a report with no ax to grind."
However, John Feehery, MPAA spokesman and a former congressional staffer long familiar with these types of reports, said that the report authors were "just doing what they're supposed to do, show all sides of an issue."
The section listing the possible legal and constitutional problems with the existing rules merely reflect what opponents have been saying, he said. "There's nothing new here," Feehery added. The problems, he said, "are all speculative in nature. Some people have been saying those problems would occur, but obviously we don't think they would happen."