June 15, 2024

Broadcast Flag in Court

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.


  1. It’s still fair use to alter it once it arrives in your home as long as you don’t distribute the copies, for God’s sake — if I rip pages out of a book I own, I can’t be sued for that, so ripping chunks out of a show I taped after paying $(something_huge) for the privilege of receiving the signal can’t be any different surely?

  2. Neo, if I remember right the argument goes something like this … the station that broadcasts the program with commercials in it has a copyright to the program presentation that they broadcast. Even though the original producers of the show, edited it without commercials, they agreed to allow the station to add commercials to their derivative work. So you’re not watch Gone With the Wind or whatever, you’re watching a copyrighted dervitive work. And the copyright owner of the derivative does not give you the permission to change his presentation.

  3. For those who would like a little background on the issue, Engadget did a column on it last week.

    There is a lot of misinformation out there. It helps to clear some of it up.


    Two things to note:

    a) The MPAA’s argument is a crock. All of today’s PC HD cards will continue to work and will continue to ignore the BF. It’s the world’s biggest loophole and a great way to ensure that the content makes into onto the Internet.

    b) It’s NOT copy-protection or access-protection. It’s distribution protection. Ergo, examples like Mat’s aren’t the case.

  4. Mark Cuban posted a great rant on BF and HDTV… http://www.blogmaverick.com/entry/1234000893032857/

  5. Law Student says

    Ed –

    Can you get us a link to the mp3 of the oral argument? Does anyone have a link?

    Thanks –

  6. The FCC has been told they are not authorized to require the broadcast flag. It is unclear if they will strike down the requirement though since they are not sure the plaintiffs are legitimate. See the URL for the full story.

  7. Richard Dunham says

    Don Marti-

    You say in the post you reference, “If customer ability to copy DVDs mattered, delaying DVD release would matter.” I’m afraid I don’t follow the logic. Why does the one necessitate the other?

  8. Neo… see my post (comment 1).

  9. If copyability of media sold to individual customers really had the effect of keeping works out of that medium, DeCSS and DVD X Copy would have had an effect on DVD release dates. They didn’t.

  10. That’s unbelievable. A sober panel of judges thinks it is (or should be) illegal to hit that FF button at certain arbitrarily designated points in a tape? Are they mad? Who appointed these judges? Are they mad?

    First off, transforming or altering the presentation of a work in the privacy of your own home should be fair use in the legal sense of the term.

    Second — whose copyright is being infringed? The show is created without ads. Some (but not all) broadcasters insert ads — and different ones insert different ads. The show’s producer has a copyright, but it’s a copyright for the show’s own content. Outright editing a tape of the show to remove the ads, while carefully leaving the show itself unaltered, can’t therefore infringe their copyright. As for hitting FF — you’re doing the same thing as reading a magazine and jumping from the page before an ad to the page after without more than glancing at the ad. Is our page flipping when reading magazines to be policed too? What about driving along the highway and keeping your eyes firmly on the road, undistracted by the umpteen flashy billboards to the side? Will that get you pulled over and ticketed before long? Time was, not keeping your eyes firmly on the road was liable to get you ticketed — or worse, in a crash. I suppose putting “ *.doubleclick.net” in /etc/hosts is illegal too?

    This is ridiculous. The foisters of advertisements have every right to insert them into content that arrives in our homes, aside from cases where the costs are pushed on the recipient (junk faxes, spam …). Once the content is in our homes it is our right to examine or ignore it selectively as we choose. It is certainly a computer user’s right to delete files, reject network traffic, and so forth as he chooses on his own machine, and it is also certainly his right to inspect files, examine network traffic, and so forth that is on his machine, originating from it, or addressed to it. It is not possible to keep one’s own computer secure against viruses, spyware, trojans, and other threats without that right. There can be no justification for denying us that right; the bleating of fatcat CEOs whose arguably-anticompetitive, Sherman Act-violating business models are threatened is certainly no justification and even the so-called war on terror is no justification for such a gross invasion into the home and into the private lives of individual citizens.

  11. Tito,

    The Seventh Circuit says that commercial-skipping is copyright infringement. See page 6 of the Aimster opinion.

  12. “so they can preserve ad revenues while minimizing DVR-originated piracy”

    It really boils down to their attack of “fair use”, or at least a “common sense” interpretation of it. (Specifically, no one I know, technophile or techno-illiterate, thinks that skipping commercials is “stealing” the programming.)

    The core issue is an economic problem that seems to arise in a number of places, that of “split incentives”. In this case, the purchaser (customer/ad buyer) and user (consumer/user) of the product are two different people. A “classic” example of this is a landlord and tenant conflict over a furnace. The landlord buys the furnace, but the tenant pays the heating bill, so the landlord has an incentive to buy the cheapest (upfront), but least efficient furnace.

    This problem is a well known source of “market failure”. Until this core issue is reconciled (by a new business model), fair use will be a threat to their business.

  13. Preaching to the choir here but… you have to look at the BF issue with a wide-angle lens, so zoom out. Start with the FCC, who desperately wants HDTV in order to reclaim low-frequency broadcast spectrum. By setting the stage for broadband wireless, the FCC will have succeeded in their mission to provide the market with a third alternative to today’s telco and cable duopoly. Enter the media conglomerates, who saw the FCC’s desperation as an opportunity to do some “horse-trading”… they agreed to comply with HDTV transition in exchange for a BF mandate. It’s important to be aware that the first priority for the media giants is to control DVR functionality, so they can preserve ad revenues while minimizing DVR-originated piracy. Consequently, the media giants are betting that control over DVRs will give them leverage to exert influence over players that design and manufacture media-centric computing devices and consumer electronics equipment. It’s most illustrative to take a peak at what a company called NDS is doing with DirecTV.

  14. “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.”

    Undoubtedly it’s what they offered the FCC’s decision making people outside the public proceeding that is the real explanation. (The phrase “small, unmarked, nonsequential bills” probably fairly accurately describes it, although I cannot be certain.)

  15. Mark Gritter says

    Withholding HD content is almost certainly a bluff. Last year I was able to capture “Toy Story 2” off the air with a digital receiver card, in high definition. The content is already out there.

    Elee, the core “technology” of the broadcast flag is the insertion of a descriptor into the metadata of the MPEG-2 stream used for digital broadcast. This is coupled with restrictions about how devices may output content with this flag. This is harmful because it prohibits certain receiver architectures— for example, one receiver card I have used does not interpret the MPEG packets at all, just passes them to software. How can such a device possibly comply with the broadcast flag ruling if the software interface is known?

  16. Ed, thanks for your post. Do you think the BF would be harmful to innovation or technological development? Is that the big worry about the tech mandate? I’m not as familiar with the actual BF technology as you. But you could imagine a hypothetical in which a tech mandate (even one that is ineffective) did not really impose an impediment to the underlying technology for the development of the device. I’m not saying that’s what’s going on here. What’s your opinion?

  17. “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.”

    With this FCC, I don’t think they really had to be convinced.

    As someone else (from the EFF, maybe) pointed out, we should call the MPAA/NAB bluff, see if they refuse to provide HD content, and if they don’t take their frequencies away from them and do something useful with them.

  18. Ed,

    The MPAA was able to “convince” the FCC to mandate the BF by threatening to delay/withhold the transition to HD programming. BTW, the FCC did not want such a mandate.

    You are also right that control over DVR functionality was the major reason.

  19. Cypherpunk,

    I’m not saying they don’t have a reason for what they are doing. What I’m saying is that the reason they state in public doesn’t add up.

    What might the real reason be? Here’s one possibility: the Flag gives broadcasters some control over entry to the market for digital video recorders and similar technologies.

  20. “…How do you explain the MPAA’s actions, if what you say is right?”

    Shareholder: What’re you doing to protect my investment?
    FCC: It’s all cool — we have all kinds of technical magic…

    I’m beginning to think that the FCC/MPAA/RIAA/etc. *know* that there’s nothing they can actually do about “piracy”, but making these futile gestures is a) easier and cheaper than reinventing themselves and b) looks good to shareholders.

    However, I think if the full implications of the flag were explained in simple terms to people, there’d be a riot.

    “Dude, sorry, but when you’re on holiday you can tape show Y but you’ve gotta watch it within the next two weeks, so don’t plan on being away too long. Also, when your sister phones up and asks you to tape show X for her because she’s going to be out late and forgot to set the futuristic VCR, don’t forget she’s gonna have to come round your house to watch it. And don’t even THINK about skipping the commercials. (Heck, if we could get away with it you wouldn’t even be allowed to leave the room while the commercials are on…)”

    In short, “All Your Base are Belong to Us!”

  21. If, as you claim, the absence of a BF would increase broadcaster’s demand for movies, that would raise the price of contracts to distribute movies and benefit the MPAA’s members. If, as you claim, the BF would do nothing to stop infringement, the MPAA would not be helping itself by expending so many resources to make it happen.

    How do you explain the MPAA’s actions, if what you say is right? Do you really think that you know this organization’s business better than they do?

  22. Ed,

    I think the real story here is how the broadcast flag can exist at all! If I have a premium channel, which I pay for, and I want to tape (or Tivo or Myth) the content that I have bought for my own personal use, why should I not be able to? If I buy a book, a very expensive book that comes scrambled (it’s a cryptography book), don’t I have the right to read it at whatever time I want, wherever I want to? I know we went over this last year in class, but it just seems ridiculous.

    Also, regarding this post on TV copyrights, who says I can’t cut out the commercials?