Assignment
prepared by:
Wyatt J. Istvan-Mitchell
I. Background
The
"Broadcast Flag" refers to a set of
protocol and rules under which digital content owners and broadcasters
(e.g.
NBC, ABC, CBS, etc.) would embed code in their digital
broadcasting
stream. Such a stream is what Americans
will be receiving (over-the-air) come 2009, once all of
The
stream comprises the packets making up
a broadcast (e.g. a TV program), and the flag travels along with each
packet,
thereby telling receiving devices (e.g. a digital video recorder (DVR))
whether
the TV program could be redistributed or copied, and if so, on what
terms. In order to be effective, the
receiving
devices would be required to respect
instructions of the flag. Otherwise, the
flag would just be another bit
of information yielding no result. Analog
technology of today does not allow such transmission, and therefore, no
such
instruction, so you are free to record over-the-air programming today
on a VCR,
DVD recorder, PC, DVR (e.g. TiVo), etc. [Technology has been
developed, though, to disrupt digital recording of analog broadcast
signals. -- jtw]
If
Broadcast Flag rules are mandated either by law (or
legislature), things would be different, because manufacturers of
receiving
devices would be required to design
their devices to follow the instructions contained
in the flag. Thus, if a TV program was
flagged
as ědo-not-copyî, your TV and DVR would refuse to copy it, regardless
of how
you instructed your DVR to handle the TV program. Under
pressure from broadcasters (who feared
another ěNapsterî or ěGroksterî equivalent for their digital
broadcasts), the
FCC issued a set of rules mandating a Broadcast Flag regime in 2003. After much outcry from groups such as
Electronic Frontier Foundation (EFF) and the American Library
Association
(ALA), the D.C. Circuit struck down the FCCís rules in 2005 as being
beyond the
FCC's statutory authority.
Read the opinion -- American Library Ass'n v.
FCC, 406 F.3d 689 (D.C. Cir. 2005) -- at:
http://pacer.cadc.uscourts.gov/docs/common/opinions/200505/04-1037b.pdf
>Do
you understand the Courtís reasoning? (Hint: The
FCC had sought to rely on its ancillary jurisdiction, but the Court
held that
ancillary jurisdiction doesn't extend so far.)
>Do
you agree with the Courtís reasoning?
>Why
do you think the FCC attempted such a
sweeping change?
>Can
you appreciate the broadcastersí concerns?
Read some
interesting quotes regarding FCCís actions:
https://members.publicknowledge.org/node/1318
>
Do you
understand the concerns? (Hint: The FCC is attempting to regulate
consumer
electronics, and not just transmissions going thereto.)
For a better
understanding of the
Broadcast Flag, read a
ě3-minuteî guide at:
http://w2.eff.org/IP/broadcastflag/three_minute_guide.php
>Do
you agree
with the ěstudiosî or the ětechiesî (see paragraph 3)?
Why?
>Is
it ěfair
for the government to tell us that weíre not allowed to peek inside,
fix, and
improve out own propertyî? Why or why not?
Read in its
entirety (and pay special attention to the responses to the following
questions):
>What
do you
think of the answers?
>Are
you
surprised by the Government nudging
the public towards Digital TV? Why or why not? Does this raise any
concerns?
>Are
you
concerned with ěbanningî open source or putting
II. Finally
time for videos!
Watch: http://www.youtube.com/watch?v=N1oYfOdlmo8
>This
video is somewhat
biased (if you didnít notice), but does the underlying message in the
video
make sense?
>What
are the primary concerns presented?
>How
does this relate to our prior ěapplianceî
discussion?
For some real bias
(cheesy bias), watch http://w2.eff.org/corrupt/
>Which of the two videos above is more persuasive? Why?
III. Flags
and Copyright Law
Much
of the past
and present debates on the Broadcast Flag directly link to copyright
law, as
illustrated in the videos with discussion of, inter alia,
ěFair Useî. Some
of you may be familiar with Sony Corp. of
America v. Universal City Studios, 464 U.S. 417 (1984) (a.k.a. the
Betamax
Case, *DO NOT READ*). Sony
is a landmark case in copyright
law, which has sheltered a wide array of technologies (e.g. VCRs) from
lawsuits
at the hands of the entertainment industries.
In Sony, the Supreme Court
held that Sony was not liable for
creating a technology that some customers may use for copyright
infringing
purposes, so long as the technology
is capable of substantial non-infringing uses.
The Court ruled that making of individual
copes of complete television shows for purposes of time-shifting
does
not constitute copyright infringement, but is fair use.
>What
are the
similarities and differences between VCRs and DVRs?
Read the Statement
of Marybeth Peters, which predates the Flag being shot down, but still
presents
insight on Sony, copyright law, and
piracy prevention:
http://www.copyright.gov/docs/regstat030603.html
>What do you agree with? What do you disagree with?
For some additional viewpoints and arguments, read
Section I B. and Section II of:
http://www.law.duke.edu/journals/dltr/articles/pdf/2005dltr0024.pdf; and optionally
read
(skip Section
III, A. altogether):
http://www.law.indiana.edu/fclj/pubs/v57/no2/Kaplan.pdf
>Overall,
do
you think something, such as the Broadcast Flag, should be put in place
to
prevent another Napster-type situation?
IV. The Flip
Side
For opposing views
(i.e., the MPAAís view) on why flags
are necessary, read:
http://www.mpaa.org/Broadcast_Flag_QA.asp;
and
http://news.cnet.com/Why%20the%20broadcast%20flag%20should%20go%20forward/2010-1071-5719977.html
>What
point(s) do you agree/disagree with? Why?
V. So
the Broadcast Flag is ědeadî (for now), but what is next?
Learn about
ěSelectable Output
Controlî (SOC), which applies to distribution of programming via cable
television, by reading:
https://members.publicknowledge.org/issues/soc
>What
do you
think about turning off analog
outputs? Should we care?
>Do
consumers
have the right to copy or transfer information?
In what context and to what degree should copying and/or
transferring be
allowed?
>Do
you now see
how the aforementioned ěAnalog Holeî will be filled (i.e., blocked)?