Broadcast flags and the war against digital television piracy: a solution or dilemma for the digital era?

• Author: Kaplan, Debra

1. INTRODUCTION II. THE MECHANICS OF THE SOLUTION A. The ATSC Flag B. The Flag's Technical Strengths and Vulnerabilities 1. Strengths of the Flag 2. Weaknesses of the Flag III. COMMISSION AUTHORITY A. Jurisdictional Issues B. The Vote Breakdown C. Questions of Implementation IV. IMPLICATIONS OF THE TECHNICAL SOLUTION A. Copyright Law B. Public Policy Concerns V. ALTERNATIVE SOLUTIONS VI. FUTURE LITIGATION: NAPSTER PART TWO? VII. CONCLUSION I. INTRODUCTION

   On November 4, 2003 the Federal Communications Commission ("FCC") formally adopted the "broadcast flag" as the primary anti-piracy tool for digital television transmissions. (1) This regulatory measure is intended to facilitate a consumer transition from analog to digital-signal television transmissions by ensuring high quality content, thereby encouraging consumer investment in digital technologies. (2) The FCC's goal is to complete the transition to digital broadcasts by 2007. (3) The flag is a technological measure designed "to prevent mass distribution [of digital television broadcasts] over the Internet." (4) Presumably driven by fears of a repeat performance of Internet music piracy in the television industry, the FCC seeks to protect content owners before sharing becomes too widespread.

   The ruling, however, has been far from uncontroversial. Critics of the regulation claim that the FCC's response to the risk of digital television piracy is disproportionate to the actual threat posed, (5) and that the ruling places unnecessarily broad restrictions on the public's ability to redistribute digital content, especially given that the regulation does not prohibit using the flag on public works. (6)

   Nonetheless, proponents claim it is a necessary step to ensuring high-quality content on television by curbing the high costs incurred by the widespread piracy of Digital Television ("DTV"). Without this measure, proponents claim, wary content owners will move their high-quality fare to more secure cable and satellite networks, resulting in higher costs to the consumer. (7) In the FCC's report, several FCC commissioners recognize the tension between these two interests. The commissioners approved the order adopting the flag, but dissented in part to the decision, citing the dangers of a regime which regulates such a broad range of content. (8)

   This Note argues that the FCC's adoption of the broadcast flag as a regulatory measure is both a warranted and a proper method of protection for content owners, given the problems of piracy in other areas of mass media and the strong likelihood that such problems will continue to arise in the digital television context. Piracy of content is an inevitable consequence of the release of new media technologies. It has emerged as a significant problem across various media, from digital video disc ("DVD") movies to file sharing in music, and soon may be as significant of an issue in file sharing of digital broadcasts. Sharing of such DTV broadcasts is already possible over the Internet with current technology, though at slower speed in digital form. (9) However, the regulation has important flaws that should be readdressed. For example, the FCC failed to exclude news and public programming from the flag. (10) Also, no specific measures were taken to) ensure that new digital technologies are able to emerge alongside this restriction. In order to ensure that this happens, all relevant groups should be considered in the decision-making process. Consumer groups should be allowed to respond to the industry players that have been strong supporters of the flag, Finally, the fair use doctrine must be a main consideration, and there must be enough breathing space given to the public so that it can engage in fair use of digital broadcasts. If these factors are taken into account in the drafting of further rules, the temptation to over-regulate can be sufficiently tempered and the ultimate transition to DTV can progress more smoothly.

   Part II describes the workings of the flag technology and its various strengths and weaknesses as a solution to digital piracy. Part III examines whether the FCC had actual authority in passing such a measure, as well as how the different commissioners voted on the measure. Part IV considers the implications of this solution on both existing copyright principles and public policy concerns, including the possible blocking of innovation and information in the marketplace and how these concerns might be tempered by future FCC decisions. Part V evaluates other possible alternative solutions, addresses the current challenge to the validity of the FCC's order, and addresses whether such a challenge may have merit in the courts. The Author concludes that the flag regulation is the most viable option for those affected in the industry and the public.

2. THE MECHANICS OF THE SOLUTION

   1. The ATSC Flag

      Most digital broadcasts are transmitted "in the clear," meaning they are unencrypted and thus readily capable of unauthorized distribution. (11) The Advanced Television Systems Committee ("ATSC"), (12) or "broadcast flag," created by the ATSC, sends a signal to digital television reception equipment that tells it "to limit the indiscriminate redistribution of the digital broadcast content." (13) The FCC order requires that DTV receptors manufactured after July 1, 2005 must be able to recognize the flag, and the FCC has issued a Further Notice of Proposed Rule Making to establish a process of approval for new flag-compatible technologies. (14)

      The flag consists of a series of bits which contain a "descriptor tag" and space reserved for "optional additional redistribution control information that may be defined in the future." (15) The flag is embedded within a TV program itself, and the flag sends a signal to a receptor, which in turn blocks unauthorized distribution of the program. (16) The DTV receptors are designed to recognize the flag and signal the TV to only output the broadcast to approved technologies, such as personal recorders, and to other approved content protection technologies, a category which has yet to be formally determined. (17) Hence, unapproved transmissions would not be physically feasible with the signal system in place. Larger-scale distribution of broadcasts will become much more difficult for those who want to engage in such distributions over the Internet.

      The Consumer Electronics Association ("CEA"), multi-channel video programming distributors ("MVPDs"), and the cable industry all approve of the ATSC flag as long as the flag is limited in scope when implemented so that it still allows consumers to be able to copy content. (18) In a press release shortly after the flag was adopted, the CEA's President and CEO, Gary Shapiro, stated, "We continue to urge the Commission and broadcasters to implement the flag in a manner that respects and protects consumers' fair use rights, and we believe some special status should have been given to news and public affairs programming." (19) Shapiro's comments signal that the real test for the broadcast flag measure will come as the FCC begins to draft the specifics of the flag's implementation.

      According to the Motion Picture Association of America ("MPAA"), the vast majority of groups that participated in the Broadcast Protection Discussion Group ("BPDG") (20) approved of the broadcast flag concept, with fourteen of the seventy participating groups dissenting to the flag's adoption. (21) Opponents' key concerns include making sure that consumers will not have to invest large amounts of money to be able to take advantage of the digital broadcast technology, and that they will be able to participate in reasonable forms of content sharing. (22)

      The National Cable and Telecommunications Association ("NCTA") has also filed a petition for clarification of the broadcast flag rules with the FCC. The NCTA claims that the order puts an "inadvertent freeze on network innovation" for two reasons. (23) It requires broadcasters to either use a single modulated signal, or if broadcasters want to use a more effective or sophisticated signal, the current rules require them to seek a waiver from the FCC. (24) The NCTA has also filed a petition claiming that the new rules put a greater burden on cable providers than on satellite providers. (25) The FCC must address these additional technical inefficiencies as it attempts to solve the many general implementation issues initially presented by adoption of the flag. By adopting the broadcast flag, the FCC has made a general statement about the need for digital content protection. Many of the technical issues have yet to be resolved, as is evident by the disagreement over such issues as robustness requirements within the industries affected. (26) Adoption of the broadcast flag shows the FCC's perceived need for digital content protection, but technical issues remain to be resolved.

   2. The Flag's Technical Strengths and Vulnerabilities

      1. Strengths of the Flag

         The broadcast flag is a relatively straightforward technical solution because it "regulates a minimum number of products." (27) It would only affect modulators or demodulators--the stage at which content is transferred into a useable form. (28) Because the technology "would not be required to be embedded in content" itself, a content provider can, at its discretion, decide whether it "wishes to make its broadcast content available for wide redistribution." (29) In other words, the flag is only designed to prevent "redistribution over wide-area networks like the Internet" and consumers would still be able to copy content in their homes. (30)

         The flag merely places a "speed bump" on the road to copying and redistribution by the regular consumer, and is not a technology that will provide perfect protection. (31) The broadcast flag will, at the very least, provide an important deterrent to piracy by the average consumer, though the experienced hacker will likely still...