Senate asked to delay, don't rush to approve broadcast flag [ip]
Begin forwarded message:
From: Declan McCullagh <declan@xxxxxxxx>
Date: September 20, 2005 8:12:47 PM EDT
To: politech@xxxxxxxxxxxxxxx
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
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