A Briefing On Public Policy Issues Affecting Civil Liberties Online from The Center For Democracy and Technology
A Briefing On Public Policy Issues Affecting Civil Liberties Online
from
The Center For Democracy and Technology
(1) CDT Urges FCC to Protect Internet In Defining DTV Broadcast Flag
(2) CDT Comments Focus on Potential Impacts of the Flag Rule on the Internet and Innovation Online
(3) CDT Argues for Narrow, Objective Approval Process for New Technologies, with Regular Oversight
(4) CDT Warns Flag Should Not be Used as a Precedent for Further Regulation
CDT submitted comments to the Federal Communications Commission on January 13 in the latest round of proceedings regarding the copy-protection of digital TV (DTV) broadcasts via a mechanism called the "broadcast flag." The FCC has mandated that, starting in July 2005, all equipment capable of receiving DTV broadcasts must include federally approved content protection technologies. The FCC is now addressing a range of critical questions surrounding the implementation of the flag scheme. These issues include the procedure for approving protection technologies and questions about how to make the requirements of the rules compatible with increasingly popular software-based DTV applications and networkable consumer electronics devices.
CDT is working to find pragmatic solutions that balance the interests of Internet users with the intellectual property rights of content creators. Given the importance of the Internet to democratic values, CDT urged the Commission to make sure the flag rule did not "leave out the Internet" or overly burden the free flow of information online. CDT urged the Commission to ensure that users are able to make reasonable uses of content and exchange material over the Internet, so long as they do not engage in massive copying.
Specifically, CDT called on the FCC to adopt objective functional criteria for approving copy protection technologies and to develop a transparent and publicly accountable process for applying those criteria based on the narrow goal that the Commission has articulated for the flag regulations -- preventing "indiscriminate redistribution" of copyrighted content online. CDT also urged that the Commission make clear that the rulemaking is not a precedent for the FCC to take a broader role in the regulation of consumer technologies.
The broadcast flag regulations represent a specific response to some of the considerable challenges posed for copyright holders by the increasing importance of computers and networks in emerging digital media. However, these technologies also hold tremendous potential to foster expression and civic discourse, and CDT argued that the Commission must be wary of imposing undue burdens on their development and use.
While the FCC indicated in its earlier ruling that it intended for the flag regulations to "facilitate innovative consumer uses and practices, including use of the Internet as a secure means of transmission," (FCC Report and Order, November 4, 2003) some commenters suggested tightening the flag rule in ways that would severely limit the uses consumers can make of digital broadcast content online.
CDT and others argued, instead, for an implementation of the rule that focuses on the Commission's narrow expressed goal of frustrating mass, "indiscriminate redistribution" online, without obstructing secure private transmission over the Internet or other uses of broadcast content on personal computers and digital networks. Other groups that argued for a similar, narrowly tailored, implementation of the flag regulations include the Business Software Alliance, the Computer Systems Policy Project, Verizon, Phillips Electronics, and consumer groups Public Knowledge and Consumer's Union.
CDT said in its comments that continued innovation and free expression on the Internet is best protected by the development of a robust marketplace in content protection technologies. Such a marketplace ensures that consumers have real choices among rights protection options and that developers have strong incentives to find ways to meet consumer demands for reasonable and innovative uses of content while maintaining appropriate protections for copyrighted works.
CDT suggested several specific measures to ensure that the Commission's approval process for new technologies does not create unnecessary barriers for technology developers:
CDT also argued in its comments that the Commission must make it clear that the flag cannot be viewed as a precedent for broader regulation of technology. The specific rationale and processes put in place to deal with the special case of digital broadcast content protection are not sufficient to justify broad re-architecting of all digital technology. For example, CDT is concerned with the potentially sweeping ramifications of the Commission's stated intention to consider mandated protection measures for analog outputs. Most televisions, VCRs, and DVD players now in consumer's homes are connected through analog outputs and inputs. To be effective, a technological protection measure for these analog signals would require broad regulation of devices containing analog-to-digital converters, including personal computers and many consumer electronics devices.