When a federal court roundly strikes down an anti-consumer regulation like the FCC’s “broadcast flag,” Congress ought to take a long breath before trying to revive it. Even legislators who believe copyrighted works on broadcast TV need more protection will find, if they look hard at the broadcast-flag scheme, that it harms consumers in countless ways, and not just by limiting how many copies they can make of recorded TV shows.
On May 6, a three-judge panel of a U.S. Appeals Court in Washington, D.c=, threw out the broadcast flag rules on the grounds that the FCC did not have power under the law to dictate the design of technology devices. The legal basis for the decision was that the agency didn’t have the authority to impose the flag scheme, but that legal argument underscores a practical criticism of the scheme. If they’d been upheld, the rules would have required every consumer electronics and computer device that can demodulate a TV signal – and any other device that could connect to a TV receiver – to read and obey a series of bits (the “flag”) embedded in a digital TV signal. The purported aim of the flag would be to prevent consumers, teachers, librarians and others from 1) recording or playing back copies of digital TV shows unless the recording and playback devices were also flag-compliant, and 2) transmitting any part of the digital TV show over the Internet.
Even before the decision came down, the Motion Picture Association of America and the National Association of Broadcasters announced their intention to convince Congress to pass a law reinstating the FCC’s broadcast-flag regulation. Hollywood and the broadcasters insist that they need the government to protect them from the possible illegal transmission of digital TV over the Internet. (Never mind that downloading a high-definition television file takes many hours and an enormous amount of bandwidth.) Despite their entreaties, Congress should nix the broadcast-flag scheme for two reasons.
First, the broadcast-flag scheme is patently anti-consumer. For one thing, the flag scheme prevents both legal and illegal uses of broadcast content. Thus, if a teacher wanted to transmit a small portion of a digital TV show over the Internet as part of a distance learning curriculum, or if a member of Congress wanted to transmit their appearance on ABC news to their home office, the flag would prevent even those lawful transmissions. At a time when Congress is desperate to end -the digital TV transition and reclaim valuable spectrum broadcasters got for free in 1997, the transition would be hampered, not helped, by TV sets that are less consumer friendly than the analog sets most consumers still have.
For another thing, the flag would render obsolete a large number of expensive consumer devices. If I buy a flag-compliant TV set, then my current digital recorder will not be able to record off that set. And even if all my devices are flag compliant, my mother may not view a recording I made if she does not have flag-compliant playback devices. It would be ironic if, at a time when Congress is considering measures to avoid making analog TVs obsolete in the transition to digital TV (for example, by subsidizing converter boxes), it adopted a broadcast-flag regulation that would render worthless thousands of other consumer electronics devices already in consumers’ homes.
Not everyone in Congress recognizes yet that restoring the broadcast-flag scheme would give the FCC unprecedented power to determine the design of consumer electronics and computer technology. Proponents of the flag will claim that the legislative fix they desire will be narrow – but anyone who understands how the flag scheme actually works knows that claim is false. Because the flag scheme requires FCC permission for every piece of hardware (like computers, television sets and TiVos) and software (like Windows) that captures a television signal, it places the FCC in the position of having to approve a myriad of old and new technologies. If consumers are to reap the benefits of technological advance, it should be the consumer marketplace that selects technology winners and losers, not the government.
The battle over broadcast-flag legislation gives the Congress a unique opportunity to re-establish its pro-consumer and pro-market bona fides. If Congress chooses instead to reinstate this broad, intrusive regulation, the broadcast flag will entangle the government in massive industrial policy and place absurd new limits on what consumers and others can lawfully do with free over-the-air television. Now that a federal court has lowered the broadcast flag, Congress should think twice before raising it again.
Gigi B. Sohn is the President and Co-Founder of Public Knowledge, a nonprofit organization that addresses the public’s stake in the convergence of communications policy and intellectual property law.