SELTZER.MAC2.DOC 3…

SELTZER.MAC2.DOC                                                   3/12/2005 12:11 PM11:47 AM




The Broadcast Flag: It's not just TV

Wendy Seltzer*

      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
           1
licensing.
      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.


* Wendy Seltzer, wendy@seltzer.com, is an attorney and special projects coordinator at the
Electronic Frontier Foundation, an online civil liberties organization that has challenged the
broadcast flag as a plaintiff in American Library Association et al. v. FCC.
     1. Digital Broadcast Content Protection, Report and Order and Further Notice of
Proposed Rule, 18 F.C.C.R. 23,550 (adopted 2003) [hereinafter Broadcast Flag Order].


                                            209
SELTZER.MAC3.DOC                                                3/12/2005 12:11 PM11:47 AM




210                FEDERAL COMMUNICATIONS LAW JOURNAL                              [Vol. 57


      The Commission proposed and then adopted this scheme at the urging
of motion picture studios, who threatened to withhold content from DTV
                                          2
unless they were given copy protection. 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
              3
unencrypted. 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 not
typical copyright law. Instead of focusing on infringing uses of TV
broadcasts (taping a show and selling copies, for example), this new kind
of regulation puts the government in the business of redesigning products
that might be used to infringe. In the process, it locks out many
noninfringing uses, innovative technologies, competitive products, and

      2. See Digital Broadcast Copy Protection, Notice of Proposed Rulemaking, 17
F.C.C.R. 16,027 (2002).
      3. I thank my colleague Seth David Schoen for the email analogy. Spelled out, it
illustrates how easily technology mandates devolve into full-fledged technology regulation:
To implement its "do not forward" regulation, the Funny Commands Commission would
have to redesign all email software to ensure that every program written, watched for, and
responded to the "do not forward" flag. That includes programs running the gamut from
Microsoft Outlook, to the Blackberry client, to open source clients mutt and pine, to the
few-line program written in a basic networking class.
      4. Broadcast Flag Order, supra note 1, at para. 42.
      5. Id. at para. 46.
      6. Id. See also 47 C.F.R. § 73.9002 (2004).
      7. Broadcast Flag Order, supra note 1, at para. 40.
SELTZER.MAC3.DOC                                                3/12/2005 12:11 PM11:47 AM




Number 2]                    THE BROADCAST FLAG                                          211


open source developers. Because these collateral harms are unavoidable,
technology mandates should be a last resort, not a predictive strike against
hypothetical danger.
      The HD-PVR I built--a general purpose PC, an HD tuner card, and
the free and open source GNU/Linux operating system and MythTV
         8
software --beats anything on the commercial market for flexibility and
programmability. With it, I can record over-the-air HD broadcasts, watch
them live, time-shifted, or at double speed; remotely program the PVR to
capture a show a friend recommends; play recordings back on a frontend
anywhere else on the network; or excerpt clips from recorded shows. I can
do this from the same place I manage my music, home movie, and photo
collections.
      After the flag mandate takes effect, however, it will be impossible to
build this machine with new parts. The HD tuner inside has open
interfaces, giving access to the full digital signal for recording and
replaying. It is not robust against user modification, a requirement by
definition incompatible with open source. It is not that anything I do with
the tuner card or HD-PVR infringes copyright, but the fact that the card
offers "uncontrolled" outputs and fails to watch for the broadcast flag that
will make it and others like it unlawful to manufacture.
      The broadcast flag rule means I cannot tinker with my TV. It means
others cannot either, including the technologists who might want to bring
us the next great advance like TiVo. They have to engineer to government
approval, more than consumer demand or technological requirements.
Before they could bring a new product near market, they would have to
hire a bevy of lawyers to seek Commission approval or to obtain a license
for an existing approved technology, with complex licensing requirements
                                                                         9
and restrictions that often surpass those of the Commission's mandate. By
the time the technology escaped that process, if it emerged at all, it would
likely have had the life sucked out of it in the name of compliance.
      The DTV devices on the market this July will lack high-resolution,
clear, digital outputs that can feed seamlessly into other devices. To ensure
that the "do-not-redistribute" bit stays firmly affixed to its signal, devices
will restrict users' ability to export the content, and use encryption and

     8. See the full setup at http://www.eff.org/broadcastflag/cookbook/. MythTV, initially
programmed by Isaac Richards, now has more than twenty active developers and hundreds
of users.
     9. See, e.g., Digital Output Protection Technology and Recording Method
Certifications, Order, 19 F.C.C.R. 15,876 (2004) [hereinafter Recording Method
Certifications Order] (approving thirteen technologies, including High Bandwith Digital
Content Protection, Digital Transmission Content Protection, and Windows Media Digital
Rights Management Technology).
SELTZER.MAC3.DOC                                              3/12/2005 12:11 PM11:47 AM




212                FEDERAL COMMUNICATIONS LAW JOURNAL                            [Vol. 57


dongles to ensure that they communicate only with their own, restrictive,
kind. Watching DTV is, as Susan Crawford puts it, "like being bitten in the
neck by a vampire:" Once one piece of the home media network has been
                                                                    10
bitten by DTV, all others must be infected by the same standard.
       Even among restricted devices, there will be incompatibilities. You
cannot just pull a tape (or DVD) from one machine and put it in another.
The TiVo HD-video recorder might not be able to communicate with Sony
MagicGate hardware or a RealNetworks Helix-enabled device. For unless
they are designed together, devices might not know whether their
downstream neighbors would respect the flag limitations or leak. Just when
you have the home network running smoothly, any of the DTV devices can
have its HD privileges revoked at any time.
       Thus the broadcast flag's technology mandate vitiates copyright's fair
use doctrine--the principle that some uses of copyrighted material are
permissible without authorization of the copyright holders. If some fair
uses are technically blocked by all devices lawfully made for sale, those
uses are as good as gone.
       Although the Supreme Court has said that "[t]he task [of fair use
analysis] is not to be simplified with bright-line rules, for the statute, like
the doctrine it recognizes, calls for case-by-case analysis," technology
cannot pull in a judge to analyze each case.11 Any technological
implementation of fair use must therefore be a rough cut, and the cuts the
broadcast flag gives us are particularly rough. Recording a show to watch
on another device might be fair, to watch it later, or unfair, to duplicate and
sell. Excerpting clips from the evening news for redistribution might be
fair, to create your own parodic Daily Show, or unfair, to make a competing
cut-rate newscast. Yet, the technologies approved under the Commission's
initial certification, and the devices implementing them, presume unfair
what they cannot control.
       The technical specifications of the broadcast flag mandate do not
explicitly foreclose fair use copying. Indeed, the Commission repeatedly
states that "our goal of preventing the indiscriminate redistribution of
digital broadcast TV content `will not (1) interfere with or preclude
consumers from copying broadcast programming and using or
redistributing it within the home or similar personal environment as
                                     12
consistent with copyright law.'"         But much fair use copying or


   10. Tom Zeller, Jr., Federal Effort to Head Off TV Piracy Is Challenged, N.Y. TIMES,
Feb. 21, 2005, at C1, available at http://www.nytimes.com/2005/02/21/technology/
21flag.html?ex=1109653200&en=f831bf942e767caf&ei=5070.
   11. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).
   12. Recording Method Certifications Order, supra note 5, at para. 4 (quoting
SELTZER.MAC3.DOC                                               3/12/2005 12:11 PM11:47 AM




Number 2]                   THE BROADCAST FLAG                                          213


interoperability falls into the gap between the rule and its implementation.
       Twenty years ago, while Universal Studios was suing Sony
Electronics for producing the Betamax video tape recorder, Universal
suggested that Sony should have engineered its devices to respond to a
broadcast flag marking programs unauthorized for recording. The Supreme
Court majority, ruling in Sony's favor, rejected that suggestion and held
that time-shifting broadcast TV was fair use, even without the authorization
of the copyright holder.13 The Court had never addressed this kind of fair
use before; anyone trying to encode existing legitimate uses of broadcast
TV might well have coded it out of the picture. Yet, the fair and previously
unanticipated use prevailed. The Sony Court refused content owners'
request to hold the public's rights and abilities static in the face of new
technologies. Fast-forward twenty years, however, and that is precisely
what the Commission has done in this rulemaking. The Broadcast Flag
Order precludes the next fair use that has not yet been invented.
       Under the broadcast flag regime, market participants, bound up in the
welter of licensing and preapproval requirements cannot offer the products
users want. Where the market fails to provide fair-use-enabling
technologies, the robustness rules prevent end-users from correcting the
problem. Absent technology mandates, users dissatisfied with commercial
options can and do write their own software alternatives (and often share
them in open source). In a world of restricted, robust hardware, users are
limited to the options the commercial market provides: the fully-capable
hardware HD tuner card cannot be manufactured. Consumer-driven
innovation is cut off when users cannot tinker with existing technologies or
develop new ones that challenge market leaders.
       Finally, the broadcast flag, like other roadblocks designed to "keep
honest people honest" is both over- and under-inclusive. It stops the honest
people from legitimate noninfringing activities, while it does not stop the
dedicated pirates, who will still have legacy devices, the analog hole, and
                                                              14
the ability to hire experts to build their own demodulators. Honest people
don't need technologically enforced barriers, while dishonest people are
not deterred by them.
       Limits on open source development, on interoperability, on
technological innovation, and on fair use, are not merely incidental to this


Broadcast Flag Order, supra note 1, at para. 10).
    13. Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984).
    14. See ACM Workshop on Digital Rights Management, Peter Biddle et al., The
Darknet and the Future of Content Distribution (Nov. 18, 2002), at
http://crypto.stanford.edu/DRM2002/darknet5.doc (proposing that it takes only one leak to
seed unauthorized distribution of high-value content).
SELTZER.MAC3.DOC                                              3/12/2005 12:11 PM11:47 AM




214                FEDERAL COMMUNICATIONS LAW JOURNAL                            [Vol. 57


implementation of a broadcast flag technology mandate. The burdens, and
the broadcast flag's over- and under-inclusiveness in addressing the
concerns that motivated it, are inherent in a technology mandate. At the
                                                                       15
intersection of multiple regulatory modes--law, code, and markets --
public rights are hard-coded out.
      Copyright holders have long desired the kind of control technology
mandates offer. If they get to oppose new technologies before they come to
market, before they disrupt existing distribution models, the studios can
keep doing business as they have and blame any downturns on piracy.
After motion picture studios' apparent success with the DTV Broadcast
Flag, members of the recording industry have gone to the Commission
                                                      16
asking for their own broadcast flag for digital radio.
      Nor is the regulatory urge of tech mandates limited to copyright
holders. In August 2004, the Commission opened a Notice of Proposed
Rulemaking in response to a joint petition of the Department of Justice, the
Federal Bureau of Investigation, and the Drug Enforcement Administration
requesting expansion of the Communications Assistance for Law
Enforcement Act ("CALEA") to cover communications that travel over the
Internet. If the Commission were to accede to their demands as well,
broadband providers would be required to rebuild their networks to make it
easier for law enforcement to tap Internet phone calls that use Voice over
Internet Protocol, or online conversations using various instant messaging
programs such as AOL Instant Messenger or Jabber. Once again, open
source implementations of these protocols might be precluded because they
could not keep the "tappability" mandate built in.
      The Commission should recognize the extreme regulation all of these
tech mandates require and reject intrusive regulation here as it has
elsewhere.




   15. See LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE (1999).
   16. See Digital Audio Broadcasting Systems and Their Impact on the Terrestrial Radio
Broadcast Service, Order, 19 F.C.C.R. 12,856 (2004).