net.wars: Salute the flag

by Wendy M Grossman | posted on 28 November 2003

The Federal Communications Commission published new rules this week allowing over-the-air broadcasters to insert a "broadcast flag" into high-definition digital transmissions that would allow personal copying but block redistribution - at least, in the original high-definition format. All devices (such as VCRs and DVD players) that are capable of receiving digital TV broadcast signals that are sold after July 2005 will be required to have a tuner card that recognizes the flag. Getchyer unprotected TV equipment now, folks!

Wendy M Grossman

Seriously, the claim that is being used to justify this decision is that if broadcasters can't protect their content from piracy they'll move it off free-to-air networks and onto secured subscription channels such as HBO. Or, in the words of FCC chairman Michael Powell, introducing the new rules, "The widespread redistribution of broadcast TV content on the Internet would unnecessarily drive high-value programming to more secure delivery platforms."

Now, let's think about this. To whom is this a threat? Not the program makers: they're saying they'll simply move their distribution elsewhere. Not the cable/satellite channels who presumably are the fantasy recipients of this "high-value programming". Be the first channel on your block to carry the new season of Friends! It's meant to be a threat to ordinary TV viewers, who might have to pay more to see Survivor. The only network TV series that I can imagine on HBO is The West Wing.

These subtle differences are, by the way, generally lost on international viewers of American TV shows, even commentators for major newspapers outside the US and Canada. I remember reading an article in one of the British broadsheets that was based on the notion that people actually chose between watching Sex and the City and Friends (and condemning Americans for being so stupid as to choose the latter) with no understanding of the different contexts and business models in which they appear.

So really, the threat is to network broadcasters whose market share has been ebbing for two decades. Those folks have a lot of clout, of course, and to be fair I think it is important that we continue to have freely accessible broadcasting.

The immediate impact of the new rules seems likely to be minimal, at least in terms of existing equipment. It is already possible to download whole episodes of new TV shows less than 24 hours after their broadcast and sometimes even before, if someone intercepts the satellite feed. This is not going to stop instantly: the broadcast flag won't, for the moment, stop you from recording the show and watching it yourself. The FCC proposes to make rules later that will define the boundaries of a "personal digital network environment", a zone within which copying and redistribution will be permitted. We, of course, might like that PDNE to include all our own personal devices plus all our friends and families; the MPAA will doubtless want it to be confined to a single copy tied to a single device. But that's some way down the path.

Where the rules will have more impact is on equipment that could be made now and that people want to buy now, but that the MPAA wants to block. SonicBlue was driven out of seeling the Replay device that would allow anyone with a copy of a TV show to hit a "Send" button to dispatch a copy across an ethernet connection to a friend of relative with the same device. I know someone who transfers copies of American game shows from the US to the UK this way (expatriates get nostalgic for the strangest things). Wouldn't you prefer your high-def TiVo to have a built-in DVD burner?

However, although it's probably fair to say, as Paul Boutin does on Slate that the broadcast flag is not the end of the world and the FCC in its rule calls the broadcast flag a "speed bump" rather than a total blockade, it's important to remember that the most likely scenario is that it's a first step. The MPAA is not being as stupid as the RIAA in that it's not suing children for sharing files, but it still wants more digital control rather than less. The next point of attack will be what is now being called the "analog hole". That is, the bypass that will continue to allow people to make analog copies (certainly no worse in quality than today's, and possibly much better) of broadcasts and digitise and share those. A working group has already been set up to consider this problem, as has the EFF, "Cruelty to Analog". Satellite and cable systems, which are more secure, also have an analog hole, so anyone wanting to defend the fair-use rights we still have is going to be facing a much bigger array of interests.

The really unfortunate thing about all this is that all discussion of the future of broadcasting has been diverted into the copyright wars. Where is the will to demand a quid pro quo? Let the broadcasters have their flag if - and only if - they continue to provide services of public importance. Like hard and international news, which erodes year by year in favour of celebrity gossip. Somewhere along the line "high-quality" has been hijacked to refer only to the quality of the picture, not its content.

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Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).