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Senator Hollings Urges Broadcast Flag Implementation |
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Posted by Raul Ruiz on Tuesday, July 23 @ 12:04:04 EDT
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Senator Fritz Hollings, aka Senator Disney, has written a letter to the FCC urging the implementation of a digital broadcast flag. Senator Disney believes that the Congress does not need to pass legislation in order for the broadcast flag to be implemented as he believes that the FCC has authority under 47 USC 336(b)(4) and (b)(5). Hollings states that it is ""beyond dispute that the public interest would be served" by his mandate. Rep. Tauzin has also written a letter of his own[PDF].
A copy of Senator Disney's letter is below and CNET has a related story.
July 19, 2002
The Honorable Michael K. Powell
Chairman
Federal Communications Commission
445 12th Street, S.W.
Suite 8C453
Washington, DC 20554
Dear Chairman Powell:
I am writing to urge that you implement a ‘broadcast flag’
solution to protect digital content delivered over the broadcast
airwaves. I believe the Commission has the authority, pursuant to specific
statutory provisions in the Communications Act, as well as under its
general public interest authority, to implement such a solution for the
benefit of the digital television transition and consumers across America.
For the better part of a decade, the U.S. copyright industries,
the consumer electronics industry, and the information technology industry
have been engaged in negotiations over how best to protect copyrighted
content transmitted over a variety of platforms, such as DVD players,
analog VCRs, digital broadcast television, and the
Internet. Notwithstanding some limited successes (for example with respect
to copy protection for DVD players, conditional access systems for cable
and satellite distribution, and analog VCRs) these talks have largely
languished as technology has advanced. And as technology has advanced,
copy protection schemes developed voluntarily in the marketplace have not
kept pace. While the advance of technology has undeniably benefitted
consumers, it also has facilitated piracy. The content industries are
understandably reluctant to provide their top quality products in digital
form in areas (such as over-the-air digital television) where potential
piracy is a real threat.
This reluctance has real and adverse consequences for the digital
television transition, for consumers, and for the broadcast
industry. Absent robust protection, copyright owners may increasingly
restrict their best television programming to cable and satellite networks,
which are conditional access systems that can accommodate digital rights
management (“DRM”) solutions that protect content. As you know, Congress
and the Commission have mandated that local broadcasters construct digital
facilities at a significant cost premised on the notion that widespread,
high quality digital content will lead consumers to purchase digital
television sets. But broadcast stations that have spent considerable
capital to upgrade their facilities are currently denied access to a broad
consumer base as consumers are unwilling to pay thousands of dollars for
digital television reception equipment, when there is little high quality,
digital broadcast content available in the absence of agreement on copy
protection technologies.
In light of this growing problem, I am pleased that the leading
representatives of the affected industries have come together to solve this
problem. Broad multi-industry consensus has emerged around the
appropriateness and feasibility of the ‘broadcast flag’ technology since it
was originally proposed by a coalition of the motion picture studios and
equipment manufacturers late last year. This consensus originated in talks
organized by the Broadcast Protection Discussion Group (BPDG), which was
set up in November 2001 specifically for the purpose of seeking input from
all affected companies and interest groups on the technological merits of
the “flag” proposal. The final report submitted by group Co-Chairs from
Intel, Mitsubishi, and Fox on June 3, 2002 confirm that the fundamental
technological aspects of the ‘broadcast flag’ proposal are now both fully
understood and supported by numerous affected industry participants.
These developments represent a considerable achievement by the
private sector. I would particularly like to commend the consumer
electronics and information technology industry representatives for
negotiating in good faith and agreeing on the need to protect digital
broadcast content from redistribution over the Internet. Moreover, the
representatives of the content industries warrant praise for agreeing to a
proposed technological solution that allows consumers to make physical
copies of digital content for use on compliant devices (consumer
electronics devices designed to comply with the ‘broadcast flag’
technology), regardless of where those devices may be. This give and take
by affected industry parties is exactly what I had hoped to achieve through
introduction of broad bipartisan legislation earlier this year. While we
do not want to have to legislate in this area, the industries must know
that the government stands ready to ratify consensus agreements, and to
step in if no agreements can be reached after a reasonable time is given
for negotiations to move forward.
Indeed, additional legislation to protect digital content has
already been announced in the House, on the heels of the successful
‘roundtables’ conducted by House Energy and Commerce Committee Chairman
Billy Tauzin. I have discussed this matter with Chairman Tauzin, and look
forward to working with him, and ranking member Dingell on this and other
critical issues associated with the digital television
transition. Similarly, our ranking member, Senator McCain has a long
standing interest in this area and I expect that we will work together this
August toward the development of DTV legislation.
With respect to a ‘broadcast flag,’ however, the FCC may act
absent legislation. Such implementation is clearly authorized by statutory
provisions in the Communications Act specifically delegating to the FCC
wide authority to facilitate the digital television transition. For
example, 47 U.S.C. § 336(b)(4) authorizes the FCC to “adopt such technical
and other requirements as may be necessary or appropriate to assure the
quality of the signal used to provide advanced television services,” and 47
U.S.C. § 336(b)(5) grants the FCC the authority to prescribe regulations
relating to advanced television services “as may be necessary for the
protection of the public interest, convenience, and necessity.” It is
beyond dispute that the public interest would be served by regulations
protecting digital broadcast content; while at the same time preserving
lawful consumer use of that content such as making a physical copy for time
and/or device shifting purposes.
Moreover, I must note that intervention is consistent with the
FCC’s authority under Title I of the Communications Act, which provide
jurisdiction that is “reasonably ancillary” to its specific grants of
authority over numerous telecommunications issues. Specifically, Title I
grants the FCC the authority “to perform any and all acts, makes such rules
and regulations, and issue such orders, not inconsistent with this Act, as
may be necessary in the execution of its functions.” 47 U.S.C. § 154(i).
When the Commission acts to implement a ‘broadcast flag’ solution,
it is critical that the views of all relevant interested parties, including
consumer groups, be incorporated through the standard notice and comment
process at the FCC to protect digital broadcast television from
piracy. Any solution, and the process that led to it, must be credible and
transparent. At the same time, however, given the central importance of
broadcast content protection in expediting the digital television
transition, it is imperative that the FCC quickly arrive at a final
resolution and implementation.
Thank you for your quick attention to this important public
interest matter.
Sincerely,
Ernest F. Hollings
Chairman
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Re: Senator Hollings Urges Broadcast Flag Implementation (Score: 2, Interesting) by Anonymous (Name Withheld on Advice of Counsel) on Tuesday, July 23 @ 16:18:12 EDT | DISCLAIMER: I am a 50-year-old computer
scientist. I publish on the web in excess of
2000 pages of software and documentation --
the very easiest matter to "pirate."
Law itself must be lawful. The relevant law
for this matter is the Supreme Law of the
Land, the US Constitution. Relevant sections
include Article 3, Section 8, Paragraph 8,
which gives the government authority:
To promote the progress of science and
useful arts, by securing for limited
times to authors and inventors the
exclusive right to their respective
writings and discoveries;
There are three points with regard to this
Constitutional requirement which are
essential in order for such bills as this to
be themselves lawful:
- Copyright must have limited term.
This is part of the quid pro quo
negotiated by the Founders, for which a
limited monopoly on content is exchanged
for public accessibility and use after the
expiration of that limited term. Even the
present Copyright Act violates this in a
number of ways:
- In mathematical
terms: If Congress is free
retroactively to extend the term after
it has been set, then by mathematical
definition, that term is not limited.
Congress has indeed retroactively
extended copyright terms *eleven times*
in just this past century. It has been
argued that this extension of copyright
encourages authorship, and that such
promotion of authorship is more
important than any Constitutional
concerns. Such an argument is purely
specious: it is impossible that an
author already 50 years dead can be
encouraged to produce further works by
the extension of his copyrights for
another twenty years.
- In operational
terms: Copyright law that
ensures "protection" for works made a
generation before I was born in 1953,
and extends that protection for a
generation after I expect to be
dead--and moreover that has been
extended during that period so that no
works have actually made it into the
public domain during my adult lifetime
nor during its expected remainder--is
indistinguishable from "protection
forever" by any experiment I can
perform.
- In functional
terms: The lifetime of
magnetic media is at most 20 years;
film and optical media such as CDs have
a lifetime of less than 50 years.
Current copyright term is more than
double the longest of these. The works
will have become unreadable before they
become publicly acessible. This breaks
the quid pro quo of copyright law:
when the term exceeds the physical
lifetime of the media on which the
works are stored then the term has no
effective expiration. The progress of
science and useful arts can never be
promoted under these circumstances.
- The term of protection of "technical
measures" must be limited. In particular,
such protection must expire upon
expiration of the underlying copyright.
Means of protection that do not terminate
themselves at that point are not permitted
under the Constitution. Therefore,
Hollings' bill is unconstitutional on its
face.
- The protection must be afforded to
the authors and inventors. This has at
least two particularities:
- For Congress to permit such
protection for works that are properly
in the public domain is itself a
violation of this Constitutional
mandate. Such protection itself is
theft by the publisher, and should be
a violation, punished at least as
severely as copyright infringement.
It is quite clear that the
entertainment industry wants
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