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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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May 27, 2005

Broadcast Flag Rears Its Ugly Head in DTV Transition Hearings

Posted by Ernest Miller

As I predicted (New Bill to Mandate DTV Transition by Jan 2009), there are several Congressmembers pushing for the Broadcast Flag in the DTV transition bill that is being debated in Congress. According to TVTechnology.com, "Three particular points emerged at the hearing--set-top subsidies, the broadcast flag and predicating a deadline on the budget deficit" (Subsidies Are Sticky Point in DTV Draft Bill):

Several members indicated they'd seek a broadcast flag in any final DTV transition bill, including Reps. Jay Inslee (D-Wash.), Edolphus Towns (D-N.Y.), Elliot Engel (D-N.Y.) and Marsha Blackburn (R-Tenn.). No one actually came out against the flag. [emphasis added]
There is a lot of talk about the subsidy, but who cares? Subsidies will only matter for a couple of years, the changes the Broadcast Flag will implement will last essentially forever. Doesn't any of these representatives realize what a major change they would be making in our technology/innovation environment?
Rep. Elliot Engel, (D-N.Y.): "This is really a budget bill, not a telecom policy bill."
If you add the Broadcast Flag, it becomes a copyright/innovation/technology policy bill.

Now is not the time to give up on the Broadcast Flag! We need to explain to these Congressmembers that people aren't going to appreciate the change to DTV when they can't record a video for a friend who is out of town, or take copies of the kid's favorite shows to Grandma's when she babysits.

Comments (7) + TrackBacks (0) | Category: Broadcast Flag


COMMENTS

1. Jim Sampson on May 28, 2005 04:39 PM writes...

You state that, "We need to explain to these Congressmembers that people aren't going to appreciate the change to DTV when they can't record a video for a friend who is out of town, or take copies of the kid's favorite shows to Grandma's when she babysits." It is ok to be against the Broadcast Flag for a variety of reasons, but if you are going to write about the flag as a technology law expert, at least get your facts straight. The broadcast flag does not limit in any way the ability to make copies. You can make one copy or you can make 100 or a 1,000. So even with the Flag technology you will be able to record a video for a friend who is out of town or take copies of the kids favorite shows to Grandma's when she babysits. Rhetoric and scare tactics won't win the day for you. Focus on the facts...

Permalink to Comment

2. Ernest Miller on May 28, 2005 07:34 PM writes...

If you are going to comment on a blog accusing me of not knowing the facts, please at least have your facts straight. The Broadcast Flag will prevent redistribution of the copies. If I could easily make a copy and then take it my friends house for that person to play on that machine, then what keeps me from making a million copies for my closest million friends? You can, theoretically, make copies for your home network, assuming all the difficulties can be worked out, but taking the copy out of your home network is supposed to be difficult. That is the whole point of the Broadcast Flag. If I can make copies that play at Grandma's and my friend, and my friend, and my friend, ad infinitum, what is the bloody point of the BF?

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3. Jim Sampson on May 29, 2005 07:37 AM writes...

I do have my facts straight. Read the FCC report (http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-273A1.pdf? date=031104 p. 6.) The Broadcast Flag only prevents unauthorized redistribution of the broadcast content, it does not prevent copying. Yes, you could easily make a copy of a broadcast show and then take it to your friends house for that person to play on that machine. What keeps you from making a million copies of that show for your closest million friends is cost (which is not true when you upload that show on to the net to your closest one million friends). I would also hope that as a copyright lawyer you would know that although it is technology possible to make multiple copies of a television show and distribute those copies to your friends, doing so is already a violation of copyright law with or without the broadcast flag. In addition, you can use your home network (the flag triggers the same content protection technologies that are being used in cable set top boxes), so those difficulties are already worked out. And burning a copy from your home network will be no different or no more difficult then doing it today. The reason of the BF is to provide a protection mechanism for the unauthorized redistribution of the content over the net. But that does not mean that there is no BF compliant technology to distribute over the net. The FCC approved TIVO 2 Go which allows for the secure transmission of the content over the net. Thus, technology companies are already developing the devices that respect the flag and provide consumers with the access they want in a secure manner.

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4. Ernest Miller on May 29, 2005 08:13 AM writes...

Distribution to Grandma and to friends is unauthorized. From the report:

In light of our decision to adopt a redistribution control scheme and to avoid any confusion, we wish to reemphasize that our action herein in no way limits or prevents consumers from making copies of digital broadcast television content.
Yes, but that doesn't mean that the copies will be playable anywhere. You can make copies of iTunes, but that doesn't mean you can make a copy that will play on your friend's iPod. You could burn a copy to CD, but that is a different matter. The Broadcast Flag will not allow you to burn a non-encrypted copy. The copy will have to be encrypted and encryption allowing only distribution within the home or "similar personal environment."

Further from the report:

We also wish to clarify our intent that the express goal of a redistribution control system for digital broadcast television be to prevent the indiscriminate redistribution of such content over the Internet or through similar means. This goal will not (1) interfere with or preclude consumers from copying broadcast programming and using or redistributing it within the home or similar personal environment as consistent with copyright law, or (2) foreclose use of the Internet to send digital broadcast content where it can be adequately protected from indiscriminate redistribution.
And what is this similar personal environment? Is it going to allow unlimited redistribution to all my friends and family? How is this to be accomplished? There will have to be some limits.

As for the technical violation of the copyright law for making copies for your friends, it isn't perfectly clear that that is illegal. If I can timeshift, what is wrong with a friend timeshifting for me if I am unable to? And, in any case, I would love to see the copyright owners start suing people for it. Sue away I say! Finally, I would note that whether or not it is illegal, most people would consider it a legitimate practice in at least certain cases and would be unhappy if the ability was taken away or made much more difficult.

As for TiVoGuard. Note that Hollywood was quite opposed to the idea. Have you ever had to deal with dongelized DRM? It is a real pain in the ass. Dongles get lost, you only have a limited number of them. They'll only work on TiVo. Technically it'll work, just so long as you don't go over your Dongle limit, which was originally 10. Sounds like a lot, but then again, who ever thought we need more than 64K worth of memory for PCs? Possible to do? Maybe. Easy and convenient? No, and that is going to tick off voters.

Permalink to Comment

5. Jim Sampson on May 29, 2005 05:14 PM writes...

You must now admit that after reading the FCC report you were incorrect in stating that individuals will not be able to, "record a video for a friend who is out of town, or take copies of the kid's favorite shows to Grandma's when she babysits" which was my original point.

You are also correct that copies will not be playable on all DVD devices. That will be the case whether or not the broadcast flag is adopted if you are going to record digital cable programming since the Flag is using the same content protections that is already being built into every digital cable ready TV or digital plug and play set top box.

In addition, as you well know as a copyright lawyer, Hollywood will never sue an individual for making a single or even multiple copies of over-the-air broadcast. It is not worth the cost of the litigation and the economic harm is de minimus. So your statement, "[s]ue away" is sort of silly, it just will never happen.

You are also correct, "that whether or not it is illegal, most people would consider it a legitimate practice [making copies of broadcast television shows] in at least certain cases and would be unhappy if the ability was taken away or made much more difficult" is correct. That is why the broadcast flag does not stop copying and makes it no more difficult then making a copy today. As you point out, the FCC report is quite clear on this subject.

You are also correct that Hollywood was opposed to TIVO Guard technology. In their FCC filings they argued that the protection was not secure enough. However, the fact that consumers may find the TIVO dongle technolgy, "a real pain in the ass" is a TIVO problem, not a broadcast flag problem [again you will have the same problem with recordings of digital cable programming].

Finally, what I believe really ticks off voters are politicians who are mislead by rhetoric instead of making decisions based on the facts.

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6. Ernest Miller on May 29, 2005 05:35 PM writes...

If you jump through all the hoops that the Broadcast Flag creates then you may, may, be able to create a copy that plays on a friend's or grandma's machine. However, it will be quite common that you will not. This is entirely unlike the current situation where with videotape of a DVD recorder there is no question of how simple it will be. It would also be possible to make a copy onto a second machine in your house and then carry then entire machine to a friend's house. Inconvenient, but possible. So I make my statement clearer, we need to explain to these Congressmembers that people aren't going to appreciate the change to DTV when they can't conveniently and easily record a video for a friend who is out of town, or take copies of the kid's favorite shows to Grandma's when she babysits.

Being built in, but not yet used with regard to cable boxes. And, likely, people will soon come to regret and complain about these annoyances. It will be slightly different with cable, however, because people are paying for it and will be more likely to accept than "free over the air."

A law that is not enforced and that is openly mocked is hardly a legal principle. The members of the RIAA used to claim that making personal use copies (MP3s from CDs) was never clearly legal. They would deny that it was legal. Now, they admit that it is perfectly acceptable. It is the same with copies of shows. They may claim that it is illegal to make a copy of a television show for a friend who is out of town, but if they are unwilling to sue over it, then the legality is certainly questionable.

The FCC claims the goal is to make copying as easy as it is today. Goal. They do not claim it will be as easy. There is no guarantee. There is nothing in the Broadcast Flag that says inconvenient technologies will not be authorized. Every technology authorized will be as easy to use as current technology is not one of the standards. Or are you claiming it is?

The dongle isn't a Broadcast Flag problem? There would be no need for a dongle without a Broadcast Flag. You can blame the technologists, but ultimately the blame lies on the regulation. Unless, that is, you can propose the technology that would make everything as easy as it is today. Why is it, you think, that only TiVo has proposed a technology for sharing things?

To claim that making and sharing copies with family and friends (and even within the household) will be as easy under the Broadcast Flag as it is today is to mislead with rhetoric instead of facts. It won't be as easy. Claiming that nothing will change is far more misleading.

Permalink to Comment

7. Rolo Timassie on May 30, 2005 07:12 PM writes...

Nice try Jim but the actual text of the regulations doesn't get much play around here.

"This is entirely unlike the current situation where with videotape of a DVD recorder there is no question of how simple it will be."

No, it's EXACTLY like that situation. You can't play VHS tapes on DVD players, or DVDs in VCRs, and no one gets confused about this. In the future, you will not be able to play CPRM disks on D-VHS players and vice versa. But you will be able to play your CPRM disk on Grandma's CPRM player. Why is this so confusing?

I now return you to your regularly scheduled snappy comebacks.

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