The Federal Communications Commission (FCC) has entered the fray of the digital copyright debate, setting an Oct. 30 deadline for public comments on a new technology that would prohibit consumers—including educators—from making copies of digitally broadcast television programs.

At stake is whether or not content owners and device manufacturers should be allowed to equip their products with a new copyright-protection measure known as a “broadcast flag,” which would eliminate the free reign owners of DVD players and other digital recording devices have to make copies of programs broadcast on TV.

A “broadcast flag,” essentially, would be an electronic marking or signal sent out by digital television content and picked up by newly equipped televisions or digital recorders, prohibiting the machines from copying certain programs. The issue presents a special problem for educators, many of whom record news and media content at home for redistribution in the classroom.

The proposal is part of the Consumer Broadband Digital Television Promotion Act (S. 2048). Sponsored by Senate Commerce Committee Chairman Ernest “Fritz” Hollings, D-S.C., the bill is meant to encourage media companies—disheartened by a nationwide increase in movie and music piracy—to continue developing emerging media technologies, including the eventual rollout of digital television across the nation.

The bill’s opponents argue that, while it is important to protect the rights of intellectual property owners, the new “broadcast flag” is too extreme a solution. They say the measure would limit how content can be used for important education-related purposes and would anger consumers.

“Consumers have interests in protecting copyrights for digital television so that high-quality content will be available. They also have an interest in protecting their own reasonable expectations about personal use of programming and in the future health and growth of the internet,” said Jerry Berman, executive director of the Center for Democracy and Technology, in a statement. “The ‘broadcast flag’ raises many unsettled policy questions, and it is fair for consumers to ask that those questions be addressed before regulations are made.”

To meet these concerns, the FCC last month began soliciting comments from the public in a Notice of Proposed Rule-Making on its web site.

Some questions the agency is asking consumers include:

  • Are there any First Amendment rights that would be affected as a result of the proposed broadcast flagging system?
  • Will the technology allow consumers—especially educators—to exercise the same fair-use exceptions to copyright laws they have come to expect in the past?
  • Will broadcast flagging have a downstream impact on the growth and emergence of other technologies, including the internet?
  • Will the legislation open the door for broader government involvement in setting standards?
  • Do consumers fear it will be impossible for them to make secure copies for educational and home use under a flagging system?
  • Are broadcast flags likely to drive up the price of equipment to unaffordable levels?
  • Do the benefits of such a proposal outweigh the costs to the consumer market?

Likewise, some questions for manufacturers include:

  • What is the true extent to which high-quality digital programming is being withheld from the public for fear of piracy?
  • What are the technical impediments to implementing a broadcast flagging system on existing consumer electronics devices?
  • If the FCC refuses to accept broadcast flagging, how will that affect the industry’s position on the implementation of digital TV nationally?
  • Is the flagging technology efficient, and will it have the capability to be upgraded or changed easily over time?
  • Should the FCC impose regulations that require makers of consumer electronics devices to begin installing the technology, or is there a better, more efficient type of marking system that should be used instead?

eSchool News first reported on the Hollings bill in May. Even then, there was speculation as to how the bill—especially the “broadcast flag” provision—could be carried out without infringing upon the fair-use rights of educators.

“A one-size-fits-all technology mandate is not good for innovation on the internet, and [it] is not good for what we consider to be reasonable uses of content,” said Alan Davidson, a spokesman for the Center for Democracy and Technology. “The reason is that there are some major consumer concerns that haven’t yet been addressed by Congress.”

One problem, he said, is that the legislation did not mention how educators could get around the use of broadcast flags to redistribute digital TV recordings and other content for use in the classroom.

“It doesn’t tell us, ‘Can you replay portions of a recording for educational purposes?'” he said of the bill.

Davidson added that the current legislation does not specify how the new technology requirement would affect consumers with older equipment. For example, it’s unclear whether consumers would be forced to buy new equipment to meet the bill’s proposed technology specifications. If so, he said, the switchover could be a costly one for schools as well as consumers.

“A lot of people are not going to be happy when they see these proposals moving forward,” he said.

Despite these criticisms, a representative from Sen. Hollings’ office said the lawmaker remains wholly supportive of the legislation. Hollings is pleased that the FCC is taking comments from both industry leaders and consumers on how best to approach possible regulations, the spokesman added.

The issue of piracy has taken on a new urgency for the entertainment industry as analog recordings have given way to digital reproductions, which have allowed people to produce high-quality copies of pirated video and music from home.

Davidson thinks it’s unlikely that Hollings’ bill will pass this session of Congress in its current form. But, he said, it’s possible that many of the provisions included in the bill could reappear in the future as “a bunch of mini-Hollings bills.”

“They would be smaller, narrower technology mandates—like the ‘broadcast flag’—that still raise major consumer concerns that haven’t fully been addressed yet,” he said.

Links:

Federal Communications Commission
http://www.fcc.gov

Notice of Proposed Rule-Making
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-231A1.txt

Center for Democracy and Technology
http://www.cdt.org

Sen. Fritz Hollings’ Online Office
http://hollings.senate.gov

Digital piracy bill raises fair-use concerns; eSchool News, May 2002
http://www.eschoolnews.com/news/showStory.cfm?ArticleID=3672