Senate asked to delay, don't rush to approve broadcast flag [ip]

[David Farber <dave () farber net>]

Begin forwarded message:

From: Declan McCullagh <declan () well com>
Date: September 20, 2005 8:12:47 PM EDT
To: politech () politechbot com
Subject: [Politech] Senate asked to delay, don't rush to approve  
broadcast flag [ip]


On a related note, the House Commerce's discussion draft of  
communications bill is here:
http://energycommerce.house.gov/108/News/09152005_staff_disc.pdf

It does not include the broadcast flag. Background is here:
http://www.politechbot.com/2005/09/16/adam-thierer-on/

-Declan

---

Re: Hearings Required on Potential "Broadcast Flag" Legislation

June 17, 2005

Dear Chairman Stevens,

Public Knowledge, Consumers Union, and Consumer Federation of America  
are writing to you today to urge you not to pass as part of an  
appropriations or budget package any legislation giving the Federal  
Communications Commission (FCC) the authority to impose its  
"broadcast-flag" technology mandate.

We ask you to consider the potential pitfalls of the broadcast flag  
scheme which:

•Will give the FCC unprecedented control over technology
•Will harm educators and consumers
•Will be superfluous in light of the content-protection tools the  
content industry now has.


We recognize that you and other members of Congress have been told  
that the broadcast-flag scheme, together with legislative  
authorization for the Federal Communications Commission to implement  
it, are necessary to hasten the transition to digital television  
through recovery of the currently used "analog" television broadcast  
spectrum.

We believe, however, that you have heard only part of the story. As a  
result, we are concerned that Congress may choose to rush into law an  
authorization for the broadcast-flag scheme without fully considering  
both the consumer impact of the scheme and the fact that the scheme  
will require giving the federal government an unprecedented degree of  
control over digital economy. For these reasons, we believe it is  
necessary for Congress to hold hearings on the broadcast-flag scheme  
before any authorizing legislation is proposed or enacted.

As you may know, Public Knowledge, together with other consumer and  
public-interest organizations, challenged the FCC's the broadcast- 
flag regulation in the D.C. Circuit Court of Appeals. On May 6, 2005,  
that court in the strongest possible terms unanimously struck down  
the regulation, on jurisdictional grounds.

The jurisdictional issues in this case underscore the substantive  
problems with the broadcast-flag scheme; specifically, any  
jurisdictional grant to the FCC of the power to implement a broadcast- 
flag regulation necessitates giving broad, unprecedented power to the  
FCC to dictate product design, and to determine the future course of  
our digital economy. By imposing government-agency control over the  
design of digital electronics and, potentially, over computer  
operating systems and other software, the scheme will inevitably slow  
or stifle the development of innovative consumer electronics and  
other products. The Commission is not equipped by experience or  
tradition to be the gatekeeper on this unprecedentedly broad range of  
technologies.

Even if Congress nonetheless finds that digital-television faces an  
infringement threat that needs to be addressed, it should also find  
that there are alternative techniques for protecting television  
content that do not require putting the FCC in control of the design  
of almost all digital products, everywhere, that might conceivably  
contain or transmit digital television.

A full hearing of the issues surrounding Internet piracy of  
television also would show that content owners now have all the legal  
tools they need to pursue, punish, and deter infringers of television  
and other content. The passage of the Artists Rights and Theft  
Prevention (ART) Act, along with the U.S. Supreme Court's decision in  
the MGM v. Grokster case are only the most recent additions to the  
legal solutions the content industry has at its disposal.

The tenuous argument for mandating this technology should be weighed  
against the disruptions to consumers, who will likely face a  
compatibility nightmare. Because the flag-compliant technologies the  
FCC approved are not designed to work with each other, consumers will  
have to make certain that all of their devices use the same content- 
protection technology.

As the appellate court found, educators and librarians also will have  
difficulties using DTV material under the broadcast-flag scheme. On  
balance, the broadcast flag scheme is not worth the trouble and  
confusion in the marketplace it will cause.

We do not oppose all digital-rights management. Our view is that any  
government policy calling for technological protection of content  
should be should be designed so as (i) to rely on free-market  
standard-setting to the greatest extent possible, (ii) to protect  
long-standing consumer interests and expectations, (iii) to promote  
innovation, and (iv) to uphold the traditional "copyright balance"  
between copyright holders and the public interest. The broadcast flag  
fails all of these tests.

Congress would be able to more accurately understand the issues  
surrounding digital-television copyright protection only if these  
issues are given an adequate amount of scrutiny. Simply inserting  
broadcast-flag language into a budget, spending or other bill is not  
adequate. Such a hurried action will certainly lead to greater  
problems later than the ones intended to be fixed now.

Sincerely,

Mark Cooper
Research Director
Consumer Federation of America


Gene Kimmelman
Senior Director, Public Policy and Advocacy
Consumers Union


Gigi B. Sohn
President
Public Knowledge
_______________________________________________
Politech mailing list
Archived at http://www.politechbot.com/
Moderated by Declan McCullagh (http://www.mccullagh.org/)


-------------------------------------
You are subscribed as lists-ip () insecure org
To manage your subscription, go to
 http://v2.listbox.com/member/?listname=ip

Archives at: http://www.interesting-people.org/archives/interesting-people/