bIPlog is the first, to my knowledge, to point out that the Center for Democracy and Technology has just issued a report on the Broadcast Flag (Broadcast Flag III). You can read CDT's report here (Implications of The Broadcast Flag: A Public Interest Primer [PDF]).
CDT's report strives for even-handedness, and seems to be adopting the "speed bump" approach to the Broadcast Flag. In other words, the Broadcast Flag may not be entirely effective, but it might slow down file sharing by the average consumer. While at first glance this seems like a reasonable compromise, it is, in fact, a major concession to those who seek to monopolize and eliminate First Amendment rights to the benefit of copyright holders. The Broadcast Flag will hardly hinder internet distribution at all (how many people are actually ripping MP3s as opposed to sharing MP3s they've downloaded from another source), but will certainly be a major impediment to fair use and consumer rights.
The report does make some good suggestions with regard to improving the Broadcast Flag (such as eliminating the "market acceptance" criteria, which would enshrine an oligopoly of consumer electronics and movie/television studios as arbiters of innovation, and requiring transparency in licensing). However, some of the other "improvements" remain quite troublesome:
Functional criteria should be used instead of, or alongside, the "as effective as" test. Such functional criteria should be rooted in clear goals for the flag, should be reasonably easy to understand, and should permit developers to self-certify. For example, criteria could include "effectively frustrates the Internet distribution of protected content to the public” or "effectively frustrates the Internet distribution of protected content to more than x devices" (where x is a somewhat arbitrary but reasonable number).
I'm sorry, but "effectively frustrates the Internet distribution of protected content to the public" does not seem to be me reasonably easy to understand. This criteria seems somewhat circular. After all, isn't that what the Broadcast Flag is supposed to do?
It should be made clear that software solutions are on the same footing as hardware solutions in terms of eligibility for being approved technologies. Software solutions offer some advantages; for example, software would be upgradeable if breached.
Sure, software solutions will be acceptable ... so long as they are backed up by trusted computing hardware.
Secure online transmissions, to limited numbers of addressees, should be facilitated.
Translation: Better make sure that Grandma's devices can recognize the show you recorded for the kids to watch while Grandma babysits them at her place. Too many devices registered? Too bad.
More important than these major and minor tweaks to the Broadcast Flag proposal, CDT recognizes that many questions remained unanswered, including issues such as the precedents set for technology mandates (particularly in regard to computers), protection of fair uses, and retrenchment and inhibition of innovation. CDT calls for further discussion on these issues. It is a bit late for that. The FCC is going to mandate a Broadcast Flag. What will be the incentive for the MPAA to discuss these issues after the mandate has occurred?