November 29, 2020

Reading the Broadcast Flag Rules

With the FCC apparently about to announce Broadcast Flag rules, there has been a flurry of letters to the FCC and legislators about the harm such rules would do. The Flag is clearly a bad idea. It will raise the price of digital TV decoders; and it will retard innovation in decoder design; but it won’t make a dent in infringement. It’s also pretty much inevitable that the FCC will issue rules anyway – and soon.

It’s worth noting, though, that we don’t know exactly what the FCC’s rules will say, and that the details can make a big difference. When the FCC does issue its rules, we’ll need to read them carefully to see exactly how much harm they will do.

Here is my guide to what to look for in the rules:

First, look at the criteria that an anti-copying technology must meet to be on the list of approved technologies. Must a technology give copyright owners control over all uses of content; or is a technology allowed support legal uses such as time-shifting; or is it required to support such uses?

Second, look at who decides which technologies can be on the approved list. Whoever makes this decision will control entry into the market for digital TV decoders. Is this up to the movie and TV industries; or does an administrative body like the FCC decide; or is each vendor responsible for determining whether their own technology meets the requirements?

Third, see whether the regulatory process allows for the possibility that no suitable anti-copying technology exists. Will the mandate be delayed if no strong anti-copying technology exists; or do the rules require that some technology be certified by a certain date, even if none is up to par?

Finally, look at which types of devices are subject to design mandates. To be covered, must a device be primarily designed for decoding digital TV; or is it enough for it to be merely capable of doing so? Do the mandates apply broadly to “downstream devices”? And is something a “downstream device” based on what it is primarily designed to do, or on what it is merely capable of doing?

This last issue is the most important, since it defines how broadly the rule will interfere with technological progress. The worst-case scenario is an overbroad rule that ends up micro-managing the design of general-purpose technologies like personal computers and the Internet. I know the FCC means well, but I wish I could say I was 100% sure that they won’t make that mistake.

Comments

  1. Mark Gritter says:

    What ticks me off most about the “broadcast flag” proposal its after-the-barn-is-empty nature. Digital TV is already being broadcast unencrypted, and broadcast-flag-free devices are already widely available. If there is harm being done by ABC broadcasting “Toy Story 2” in unencrypted, unflagged, high-definition MPEG-2 (as they did last Sunday), where’s the proof? How can digital TV adoption be held up by this issue when all my local stations already broadcast without it? How are we supposed to retrofit a new regulatory structure on the existing technology base?

    I think it will take just about long enough for all the non-blessed equipment to drain out of the market that broadcasters will find themselves made permanently obsolete by cable. It’s too bad, because currently digital TV is vastly superior to most digital cable channels.

  2. bluetheta says:

    The broadcast flag is totally STUPID; who DIED and made HOLLYWOOD the FEDERAL GOVERNMENT; are we now in NORTH CHINA now? This is why I have not plunk down my hard earned cash on HDTV.

    I should have the ABSOLUTE right to record/watch what I want, when I want it. I should be allowed to skip LOUD and obnoxious commericals (especially cars — useless to me). Here is a question for HOLLYWOOD: “Why should I spend over $100 for cable/satelite services if I can record it?” The cable companies will suffer as premiun and pay-per-view purchases bottom out!

    I hereby authorize Congress to reinstate the MacCarthy hearing and investigate everyone in the ENTAINMENT INDUSTRY for being COMMUNISTS. This “broadcast flag” WILL BE HACKED!

  3. Terrific article. Seems the government wants an Owrwllian future driven by coporations like Disney, Fox and Viacom. Hopefully, in 2004, we can rid ourselves of Bush and get an administration that 1. Understands digital and 2. Understands the bill of rights and the proper implementation of copyright. Keep up the good work.

    Nice blog btw.

    Regards
    Bob Moran

  4. Seems the government wants an Owrwllian future driven by coporations like Disney, Fox and Viacom. Hopefully, in 2004, we can rid ourselves of Bush and get an administration that 1. Understands digital and 2. Understands the bill of rights and the proper implementation of copyright.

    LOL. Bob, Democrats are much, much more buddies with Hollywood than Republicans are. If the Democrats come to power, things will get worse.

  5. Broadcast Flag Scorecard

    Before the FCC issued its Broadcast Flag Order, I wrote a post on “Reading the Broadcast Flag Rules”, in which I recommended reading the eventual Order carefully since “the details can make a big difference.” I pointed to four specific…