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As television moves into the digital age, there is the potential for someone to copy a television program and immediately transfer an exact copy around the world to millions of people.  But current solutions, like the broadcast flag, aimed at fixing this piracy problem could impact the personal or educational use of free, over-the-air television programming.  Personal uses such as copying TV programs could be at stake.

Unfurling the Broadcast Flag

Movie studios and their broadcast network partners urged the Federal Communications Commission (FCC) to require the "broadcast flag" in all new digital devices in order to prevent copying and redistribution of these programs over the Internet.  "Broadcast flag" refers to a system that would recognize a digital "flag" embedded in the program by the broadcaster, and prevent the computer or other unauthorized device from copying or simply displaying the program.

All broadcasters are supposed to transition to digital television shortly but broadcasters have been concerned about piracy of digital content.  The FCC, sympathetic to this argument, issued a rule that mandates that as of July 1, 2005 all new consumer electronic devices, like TV sets, DVD recorders, Digital Video Recorders (DVRs) and even computers that are capable of receiving digital television signals be able to read copy-protecting flags inside broadcast programs. 

Consumer and public interest groups took legal action to stop the FCC rule.  Essentially these groups believed that the rule – while attempting to solve piracy problems – goes too far.  It could block lawful personal use of digital broadcast TV.  The courts agreed, and stripped the FCC of its power to implement a broadcast flag requirement.  However, movie studios and television broadcasters are going to Congress to try to get them to pass a broadcast flag law.

While the broadcast flag only applies to over the air television, similar protection schemes are becoming a part of cable television as well.  To learn more about this, go to Cable Plug and Play.


Problems with the Broadcast Flag

Before the FCC issued their rule requiring broadcast flag technology, the Senate Commerce Committee held a hearing on the issue.  Consumers Union and Public Knowledge testified, addressing concerns that broadcast flag technology does not recognize fair uses of content.  For example, it could prevent libraries from archiving and playing back copies of free television programs.

Consumers Union and Public Knowledge filed comments to the FCC, raising objections as to whether the FCC had proper jurisdiction to rule on the broadcast flag. They also raised practical concerns about the compatibility between digital equipment like DVD recorders and HDTVs that are broadcast flag-enabled and existing digital equipment that is not.  Consumers Union and Public Knowledge also responded to the movie and broadcast industry's arguments in joint reply comments

The Center for Democracy and Technology's filings before to the FCC outlined concerns about the future of innovation of the Internet. The Center also argued in reply comments that regulating broadcast television with a flag might doom the Internet as a way to transmit and deliver video programming.  The Center's broadcast flag website has more information on the issue. 

Consumer Federation of America wrote reply comments that explained how innovation might be stifled if the FCC, with its broadcasting flag rule, was an obstacle to the introduction of new technology.

The American Library Association has information detailing how the FCC's broadcast flag rule would impact libraries' use of digital television programming for educational purposes.  Public Knowledge has more information on the FCC proceeding, their lawsuit and other resources. And Electronic Frontier Foundation explains how the broadcast flag would limit your rights in the digital age, and how you can build your own personal video recorder (similar to a TiVo) before the broadcast flag mandate was supposed to go into effect.

Legal Challenges to the Broadcast Flag

After the FCC imposed the broadcast flag onto all televisions and devices that could receive digital televisions, organizations led by Public Knowledge, along with Consumers Union, the Electronic Frontier Foundation, Consumer Federation of America, and five library associations, took legal action to stop the FCC rule.  Public Knowledge, which led the legal efforts to take down the flag has information on their federal case including a succinct summary

In May 2005, the DC Circuit of the U.S. Court of Appeals decided in favor (PDF) of the suit brought by Public Knowledge, Consumers Union, Consumer Federation of America, American Library Association, Electronic Frontier Foundation and groups representing medical, law and research libraries.

The public interest and library groups in this case filed three briefs with the court.  The initial brief outlines their arguments in the case, while the reply brief (PDF) responds to the arguments made in the case by the FCC and Hollywood studios represented by the Motion Picture Association of America (MPAA).  The U.S. Court of Appeals went one step further and asked the public interest and library groups to explain how they had the right to sue the FCC.  The supplemental brief (PDF) outlines specific examples of how the broadcast flag rule would harm libraries' distance learning efforts, bloggers' ability to link to newsworthy video clips and other legitimate uses of digital television programming.

Now that courts ruled against the FCC, experts expect Hollywood studios to move the fight over the broadcast flag to Congress to become part of broader legislation regarding the transition to Digital Television

Protecting Television Shows Sent Over the Internet

Before the rule was overturned by courts, the FCC allowed companies to create alternates to broadcast flag technology that would still comply with their regulations.  For instance, if an inventor could create a system that blocks content piracy while allowing for new features like sending a television show to a computer, then they could apply to the FCC for permission to market that innovation. 

TiVo, a company that makes Digital Video Recorders (DVRs) created a system that would allow a TiVo device to send a show to your personal computer.  Even though the system protected against wide-scale copying, producers of content like the Motion Picture Association of America and the National Football League feared the worst and argued to the FCC to stop TiVo.

The FCC sided with TiVo.  In this instance, Public Knowledge and Consumers Union agreed with TiVo (and filed comments outlining their position with the FCC) because TiVo's plan allowed consumers the opportunity to watch TV programs when and where they wanted.

The Center for Democracy & Technology Paper published a paper (PDF) on titled "All Eyes on TiVo:  the Broadcast Flag and the Internet."