The 463: Inside Tech : Unfurling the Broadcast Flag

Some are calling the "broadcast flag" an issue as big as the Grokster case in terms of its potential ramifications. Yesterday's New York Times (Tom Zeller Jr.) ran a nice summary of why.

The broadcast flag is a FCC regulation that they plan to implement this July. Susan Crawford, an Internet law expert (and a vocal opponent of the flag), explains that the rule:

"is a mandate that all consumer electronics manufacturers and information technology companies ensure that any device that touches digital television content 'recognize and give effect to' the flag by protecting content against unauthorized onward distribution. The FCC claims that the rule will protect digital television (DTV) broadcasts from massive redistribution over the internet."

The impetus of the Time's piece is a Public Knowledge (et al) lawsuit against the FCC challenging the rule. Today, oral agruments begin in the D.C. Circuit for the US Court of Appeals. (For a CNET review of today's proceedings. go here).

Public Knowledge's co-founder Gigi Sohn is quoted saying:

"This is about whether the F.C.C. is going to become the Federal Computer Commission and the Federal Copyright Commission. The F.C.C. does not have the power to tell technology manufacturers how to build their machines."

On the other hand, the MPAA, argues:

"that without the broadcast flag rule, content creators would have no incentive to provide digital content over the airwaves, because people could simply pluck video streams out of the air and redistribute them to millions of viewers over the Internet."

One of the core positions that Public Knowledge and others will make against the FCC's rule is that the FCC didn't have the ability to make it in the first place and that lawmaking on consumer issues should be left to Congress.

Interestingly, Zeller explains that if the content industries don't embrace digital broadcasting because of fears of piracy than the FCC's push to have all-digital broadcasting by 2006 will be thwarted. Why such a big deal? Because if analog signals can be swapped for digital:

"Those frequencies could then be ... auctioned off for use by emerging wireless and other technologies. The Congressional Budget Office estimates that such auctions could generate $15 billion in revenue for the government over the next 10 years. Other estimates put the value much higher."

But what might be the Feds gain, could be Grandma's pain, so says Consumer Union's Chris Murray, in a Public Knowledge press release:

"This is the first step that leads to trash dumps full of obsolete technology. Consumers who try to record digital television programs on new digital video recording devices (DVRs) are going to find that those programs won't play on their old DVD machines. If a consumer records a program on a new Broadcast Flag equipped machine and then tries to take that program and play it on Grandma's older DVD player, it's just not going to work."

Last word goes to the MPAA in form of a broadcast flag Q&A on their Web site:

Q: Even if the motion picture and other industries come up with a system to protect this content with a broadcast flag, the security technology will just be broken into and made worthless in a very short time. Given that, what’s the point?

A: It is unfortunate that some people may attempt to illegally hack or break into this security system. However, even if a few are successful, the flag will not be worthless. Most people are honest and will not attempt to circumvent the flag. We are hopeful that the broadcast flag will enable content providers to release more of their programming in HDTV format and drive the market forward providing new options for consumers. Consumers should not lose out just because there is threat against the technology.