Challenging the Broadcast Flag

The Electronic Frontier Foundation (EFF), Public Knowledge (PK) and the American Library Association (ALA) have announced that they are challenging the legality of the FCC’s broadcast flag. This is an exceedingly important issue, as the broadcast flag, which is set to take effect on July 1, 2005, will require copy protection on all hardware that receives digital television signals, ultimately allowing the Media outlets and cable companies to decide what you can, and cannot do with any programming that comes through that device. This is in direct contradiction to our rights of fair use. Want to record your favorite movie that comes on at three in the morning? You better hope the cable company, the channel it is being broadcast on, and the company who owns the right to that movie all agree that you are allowed to save the movie. If not, too bad.

In addition to this blatant attack on our individual rights, the fact that this same bill will also give media companies control over technology companies, with the very real potential to stifle innovation. The MPAA attempted to crush the VCR in the early 1980s, eventually losing a Supreme Court case. This time around, they are trying to skirt the issue by avoiding legislation (the FCC is an appointed body, not an elected one) and flying under the radar.

Luckily, a few key groups are fighting this. Gigi B. Sohn, president of Public Knowledge put it perfectly when she said, “[t]his is a crucial case that will determine how much control the government and Hollywood will have over current and future digital media devices consumers love now and will in the future”.

The EFF’s announcement provides a concise overview of the case:

The brief argues that the FCC has no authority to regulate digital TV sets and other digital devices unless specifically instructed to do so by Congress. While the FCC does have jurisdiction over TV transmissions, transmissions are not at issue here. The broadcast flag limits the way digital material can be used after the broadcast has already been received. “Bowing to a group of copyright holders led by the MPAA, the FCC promulgated a rule drafted by those corporate interests that will dictate design aspects of a vast array of consumer electronics – televisions, DVD recorders, TiVos, digital VCRs, iPods, and cell phones – for years to come,” the brief reads.