Librarians knock wind out of 'broadcast flag'

Wired on Friday: Last October, I wrote about the "broadcast flag" - an initiative by the movie and broadcast industries that…

Wired on Friday: Last October, I wrote about the "broadcast flag" - an initiative by the movie and broadcast industries that would prevent any US high-definition digital TV from recording or outputting TV shows to other home equipment (such as computers or uncertified TVs) without the broadcaster's permission.

It would effectively provide TV companies with their own "on/off" remote control to viewer's audio-visual gear.

At the time, it seemed a done deal: the deadline for hardware to support the requirement was July of this year.

The Federal Communications Commission (FCC), the regulatory body in charge of broadcasting, had listened to the lobbyists and made their ruling.

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Groups working on clever, open-source, TV-recording software such as MythTV, were holding their breath to see whether their software would be made illegal at a stroke.

And then, a fortnight ago, a curious thing happened. Almost out of nowhere, a coalition of technologists and librarians succeeded in pulling down the flag.

This group, led by Washington digital rights group Public Knowledge, put forward a case in the US federal courts that the FCC was overreaching: that it only had the power to regulate the broadcast of signals, not what was done with them after the broadcast had ceased. They could not, the group said, impose on customers any restrictions on what they did with the shows they watched, whether it was watch them later, record them, or save them onto their computer's hard drive.

The librarians and consumer advocacy groups were staging a last stand, on as much a matter of principle: the broadcast flag would have made the next generation of TV more restrictive and more limited than the last.

Librarians would not be able to record or review works; consumers couldn't exercise the "fair use" rights to copy within their own home that they were due under US copyright law.

The principles were unanswered in court but, as far as the FCC's powers were concerned, the judges were convinced. In a unanimous decision, they declared the broadcast flag an illegal expansion of the FCC's power.

It's the sort of sudden switch around that makes politics in the United States such a delightfully dramatic, if rather formal, affair.

Now the broadcasters, having sealed their anti-copying requirement behind closed doors, must descend again into the barely less smoky cloisters of Congress and have their own private law passed to expand the FCC's reach.

Swiftly, they have regrouped and have already passed around a small draft law - certainly tiny enough to be snuck into any innocuous passing omnibus bill that might hold it.

And they have managed, too, to procure a letter offering support for a new law not only from the usual suspects of Hollywood and the like, but also HDTV manufacturers such as Philips and Thomson.

That's a significant and suspicious string to their party's bow.

When the original broadcast flag was running through the FCC's committees, Lawrence J. Blanford, then Philips's chief executive, was one of the industry voices speaking against the process, saying that the process "tramples upon the fair use rights of the consumer and introduces unnecessary levels of complexity and costs in consumer devices".

Now that Blanford has gone, it appears that his companies' dislike of the broadcast flag has abated.

Why might that be? The flag's affect on fair use copying - like time-shifting to watch shows later, or archiving programmes for your own video collection - remain the same.

Also still problematic are the unnecessarily complex costs of other flag requirements - ones that imply that every other part of a family's digital array, from the home computer to camcorders, be saddled with encryption and decryption devices that could be shut down at the moment the flag appears.

The broadcast flag is terrible long-term news for tech companies: it gives a precedent to the FCC and Hollywood to meddle with their product development and it poses significant technological burdens across almost all their future devices.

However, in the short term they seem unwilling to muster a fight. They may see the research and development cost of implementing the flag, given that they were working to a July deadline, to be mostly a sunk cost. And, given Hollywood's continuing clout on Capitol Hill, they may see the fight against the flag as a quixotic battle.

But, then again, the same thing could have been said six months ago, when the FCC made its decision. It seems tragic that, just when they have the chance to shake off their shackles, like geeks hunched in the corner of a high-school disco, the tech companies remain cowed by their showbiz rivals.

It's inspiring, though somewhat chastening, to see the future of their industry being stoutly defended - by librarians.

For full disclosure, I should say that I've commenced working for one of the non-librarian co-parties that brought down the broadcast flag, the Electronic Frontier Foundation (EFF).

The EFF is a San Francisco-based group which works to preserve free speech and other civil rights in the online world.

I hope to steer clear of areas which require such a clumsy statement of biases but the broadcast flag piece demanded an update - and self-censorship is rather against the spirit of either vocation.

I'll continue to hold forth on relevant stories with a clear proclamation of my own bias.