New Senate Broadcast Flag Bill Would Freeze Fair Use
January 20, 2006
http://www.eff.org/deeplinks/archives/004340.php
Draft legislation making the rounds in the U.S. Senate gives us a preview of
the MPAA and RIAA's next target: your television and radio.
You say you want the power to time-shift and space-shift TV and radio? You
say you want tomorrow's innovators to invent new TV and radio gizmos you
haven't thought of yet, the same way the pioneers behind the VCR, TiVo, and
the iPod did?
Well, that's not what the entertainment industry has in mind. According to
them, here's all tomorrow's innovators should be allowed to offer you:
"customary historic use of broadcast content by consumers to the extent
such use is consistent with applicable law."
Had that been the law in 1970, there would never have been a VCR. Had it
been the law in 1990, no TiVo. In 2000, no iPod.
Fair use has always been a forward-looking doctrine. It was meant to leave
room for new uses, not merely "customary historic uses." Sony was entitled
to build the VCR first, and resolve the fair use questions in court later.
This arrangement has worked well for all involved -- consumers, media
moguls, and high technology companies.
Now the RIAA and MPAA want to betray that legacy by passing laws that will
regulate new technologies in advance and freeze fair use forever. If it
wasn't a "customary historic use," federal regulators will be empowered to
ban the feature, prohibiting innovators from offering it. If the feature is
banned, courts will never have an opportunity to pass on whether the
activity is a fair use.
Voila, fair use is frozen in time. We'll continue to have devices that ape
the VCRs and cassette decks of the past, but new gizmos will have to be
submitted to the FCC for approval, where MPAA and RIAA lobbyists can kill it
in the crib.
The new legislation, being circulated by Senator Gordon Smith (R-Ore.), is
the first step down that path (and is eerily reminiscent of the infamous
2002 Hollings Bill). It would impose a broadcast flag mandate on all future
digital TVs and radios, much like legislation discussed by the House last
year.
We've covered the broadcast flag and radio flag extensively in the past.
These measures would impose federal regulations on all devices capable of
receiving digital television and digital radio signals. What's worse, the
regulations won't do a thing to stop "piracy," since there are plenty of
other ways to copy these broadcasts.
Sen. Smith's bill would retroactively ratify the FCC's broadcast flag
regulations, rejected by the courts last year. This effort to impose content
protection mechanisms in all future TVs is still just as terrible an idea
now as ever.
The bill would also give the FCC authority to regulate the design of digital
radios (both terrestrial HD Radio and XM and Sirius satellite). The bill
envisions an "inter-industry" negotiation with a preordained outcome --
federal regulations mandating content protection mechanisms in all future HD
Radio and satellite radio receivers.
The FCC regulations could make room for "customary historic uses of
broadcast content by consumers to the extent such use is consistent with
applicable law." Presumably, that means you could design a digital device
just as good as an analog cassette deck, but no better.
Sorry, Sen. Smith, but American innovators and music fans deserve better.
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