Tomorrow the DC Circuit will hear arguments in the case challenging the FCC’s authority to impose the Broadcast Flag regulation. The case will determine whether the FCC can control the design of computers, in the name of copyright. It will also determine whether the ill-conceived Broadcast Flag rule will be imposed.
Today’s New York Times has a disappointing story, by Tom Zeller Jr., rehashing the arguments about the Broadcast Flag. I say it’s disappointing because it reiterates without comment the MPAA’s logically disconnected hash of arguments about the Broadcast Flag. I think the press has a responsibility, at the very least, not to let logically fallacious arguments pass without comment.
The article starts by describing Mike Godwin downloading an episode of the Showtime series “Huff.” After some scene-setting, we read this:
The M.P.A.A. has argued 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.
“It’s very simple,” said Fritz Attaway, a vice president and Washington general counsel for the M.P.A.A. “Without the broadcast flag, high-value content would migrate to where it could be protected.”
In practical terms, such “protected” places would be cable and satellite systems where digital content can be more easily scrambled, encrypted or otherwise controlled, leaving broadcast networks at a distinct disadvantage in the new digital marketplace.
The fallacy here should be pretty obvious. “Huff” is already distributed only in a “protected” place – a premium cable channel – and it’s available for infringing downloaders. (Other cable and satellite offerings are similarly available on P2P.) This is not evidence that cable-like protection is needed for broadcast. To the contrary, it’s evidence that the “protection” of cable-like DRM is illusory.
Similarly, the article repeats without comment the MPAA argument that they will be forced to withhold high-resolution broadcast service unless the Broadcast Flag is imposed. This argument couldn’t be more wrong in its view of broadcasters’ incentives.
In fact, P2P infringement gives broadcasters a powerful incentive to offer higher-quality, higher-resolution content.
High-res content makes legitimate broadcast service more attractive to viewers. P2P versions can’t match these increases in resolution because doing so would make P2P files much bigger, clogging P2P systems with enormous files and making downloads much slower. If broadcasters have to “compete against free” their best hope is to actually compete, by improving their product – especially when the competitor can’t match the improvement.
If the Broadcast Flag actually did reduce infringement, then imposing it would only reduce broadcasters’ incentive to switch to high-res broadcast. Looking at the evidence, though, it could hardly be more clear that the Broadcast Flag won’t reduce the availability of P2P content at all. Even ignoring the Flag’s many technical loopholes, the best it could possibly offer is the same level of protection that cable content gets today. The evidence is overwhelming that that level is insufficient to keep programs off the P2P networks. Remember Huff?
The real story here, for an enterprising reporter, lies in how the MPAA convinced the FCC to mandate the Broadcast Flag despite offering only these weak arguments in the public proceeding.