CDT POLICY POST Volume 9, Number 21, November 5, 2003

A Briefing On Public Policy Issues Affecting Civil Liberties Online
from
The Center For Democracy and Technology

(1) FCC approves digital broadcast content protection rule

(2) Broadcast flag debate has far reaching consequences for consumers

(3) Flag ruling fixes some problems, but fails to address many of the hardest issues

(4) Flag report implicates broader copyright themes

(1) FCC approves digital broadcast content protection rule

The FCC approved a broadcast flag rule yesterday, incorporating several consumer- friendly improvements to an earlier Motion Picture Association of America (MPAA) proposal, but leaving some major consumer concerns unanswered. The ruling will require all equipment sold after July 1, 2005 that is capable of receiving digital television (DTV) broadcasts to include approved copy protection technologies.

The broadcast flag ruling is designed to address the problem of indiscriminate redistribution of digital broadcasts online. Online piracy of television programs and movies broadcast over the air represents a significant prospective threat to the video content industry. However, the FCC's rule is of concern because it creates a government enforced technological mandate for all equipment capable of receiving and using DTV broadcasts, including computers. Such technology mandates raise extremely difficult issues regarding innovation and the way consumers might reasonably record, use, and watch television programming in the future.

Prior to the FCC's ruling, CDT released a public interest primer on the implications of the broadcast flag, which raised many of these issues and which can be found at http://www.cdt.org/copyright/broadcastflag.pdf.

The FCC ruling is at http://www.cdt.org/copyright/031104fcc.pdf.

(2) Broadcast flag debate has far reaching consequences for consumers

The broadcast flag proposal has emerged as one of the focal points in the digital copyright debate. Creators of television programming and movies view the broadcast flag as essential to protecting high-quality content distributed through unprotected digital television broadcasts. Critics of the flag proposal view it as a dangerous precedent for government restrictions on computers and on otherwise lawful consumer uses of content.

The FCC launched its inquiry into protection of DTV broadcasts in August of 2002. Last December, the MPAA and other proponents submitted a specific proposal for a system of broadcast flag regulations. After an extended comment and review period, in which organizations and members of the public submitted over 5000 comments on the proposal, yesterday the FCC gave its approval to a broad flag rule based on the MPAA's plan.

The broadcast flag protection scheme is composed of two parts: a relatively uncontroversial technical method for marking digital television programs for copy protection, and a set of much more contentious proposed regulations for all devices that would handle flagged programs, including computers.

Yesterday's ruling outlines initial regulations about what kinds of technologies will be permitted to handle flagged DTV content, what consumer uses of flagged content will be permitted, and how specific technologies can become certified to handle flagged content.

(3) Flag ruling fixes some problems, but fails to address many of the hardest issues

The FCC's ruling has incorporated several significant improvements over the MPAA's initially proposed rule. These include:

explicitly allowing software-based protection technologies;
attempting to specify objective functional criteria to be used in the initial review of protection technologies;
clarifying that the flag rule is designed only to help curtail indiscriminate redistribution of video content online and is not intended to restrict any other forms of copying; and
adopting an ordinary-user standard for resistance to hacking, rather than expecting certified protection to stop all committed hackers.

At the same time, several problems still remain:

While the commission's report states that no new equipment will be needed by consumers to comply with the flag ruling, new technology that is compliant with the rule is unlikely to be compatible with devices now in consumers' homes, potentially requiring extensive, expensive upgrades.
The FCC declined to prohibit use of the flag protections on news or public affairs content. Limitations on the ability to easily share public affairs and public domain content raise significant first amendment issues for end users.
Of especial concern, the FCC ruling leaves many of the hardest problems up in the air. Critically, it still remains unclear what technologies and consumer uses will ultimately be permitted under the ruling and what the permanent process for approving copy protection technologies will be.
Additionally, as noted below, the ruling sets a troubling precedent for FCC regulation of computing architecture with little clear sense of the limitations on that authority.

A good deal more work remains to be done by policy makers on the flag issue. The FCC has started a further notice of proposed rulemaking on key outstanding issues. The FCC ruling may also be challenged in the courts and taken up by Congress.

(4) Flag report implicates broader copyright themes

More broadly, the broadcast flag rule represents a troubling precedent for direct FCC regulation of the architecture of digital devices. The effect of the flag on innovation and on the computer remains a serious concern.

In testimony before the Senate Commerce Committee in September, CDT articulated the view that it makes sense to pursue enforcement of existing powerful copyright laws, consistent with due process and user privacy, before enacting new laws or regulations, including technological mandates.

In general, CDT has argued that the most effective way to combat illegal distribution of content over the Internet in the long-run is to compete with it, especially when attractive, legitimate services like Apple's iTunes are paired with selective well-publicized enforcement actions and broad education efforts.

The broadcast flag ruling is the first step in what is likely to be an extended debate over the appropriateness of technological mandates as a solution to copyright concerns. CDT remains active in these discussions and encourages the public to make its voice heard.

CDT testimony on copyright issues, September 2003: http://www.cdt.org/testimony/030917davidson.shtml.

Detailed information about online civil liberties issues may be found at http://www.cdt.org/.

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