The broadcast flag: it's not just TV.

• Author: Seltzer, Wendy

I am not much of a TV person. My only set, non-HD, still picks up its channels through rabbit ears. The broadcast flag still gets me steamed, though, so much so that I recently built a high-definition digital video recorder just to beat the flag mandate.

It is not about the TV. Rather, it is not about TV as broadcast to the passive consumer, to be received on single-purpose boxes. It is about TV as it could be, with innovative companies and tinkerers making TV broadcasts a core part of the converged home media network. The crippling of this kind of TV is an early warning against a pervasive technology regulation.

The broadcast flag represents a bad detour for the Federal Communications Commission, a heavily regulatory regime introduced in a period of supposed deregulation. Because the threats of this technology mandate echo through other regulations, it pays to dig into the details of "redistribution controls" and "covered demodulators" to understand how quickly "digital broadcast content protection" becomes technology licensing. (1)

Like standard definition analog programming, digital TV ("DTV") is broadcast free, unencrypted, over the public airwaves. Equipped with the proper antenna and demodulator, any device can see this signal and convert it to a stream of bits (the ones and zeros of digital content), then translate those bits into the audio and video of TV programming. The broadcast flag is a single bit's worth of information in that signal: flagged or unflagged. Flagged conveys the "do not redistribute" demand.

The Commission proposed and then adopted this scheme at the urging of motion picture studios, who threatened to withhold content from DTV unless they were given copy protection. (2) But a flag on a signal transmitted in the clear can serve at most as an advisory notification, like the "please do not forward" footer some people include in email that they send unencrypted. (3) Since mere notification could be bypassed, the Commission further determined to bake flag recognition into robust DTV hardware.

The Broadcast Flag Order, issued in late 2003, mandates that every device capable of demodulating or receiving the DTV signal watch for the flag and impose its limitations. These devices must permit the signal to pass only through "approved" outputs (analog, remodulated, low-resolution digital, or an "approved output content protection technology") and only to "approved digital recording technology." (4) All such devices must be robust against user modifications that might give access to the original digital signal. (5) After July 1, 2005, it is unlawful to manufacture or import a noncompliant demodulator for sale in interstate commerce. (6)

Thus, the Commission's regulation is not ultimately about communications, but about the devices that receive them:

We conclude that in order for a flag-based content protection system to be effective, demodulators integrated within, or produced for use in, DTV reception devices ("Demodulator Products") must recognize and give effect to the ATSC flag pursuant to the compliance and robustness rules.... This necessarily includes PC and IT products that are used for off-air DTV reception. (7) The Broadcast Flag Order aims at a copyright problem, studios' fear of indiscriminate redistribution of their copyrighted content, but it is...