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Senator Hollings Urges Broadcast Flag Implementation
Posted by Raul Ruiz on Tuesday, July 23 @ 12:04:04 EDT Copyright
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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Related Links
· Senator Fritz Hollings
· Senator Disney
· broadcast flag
· 47 USC 336
· Rep. Tauzin
· letter of his own
· related story
· More about Copyright
· News by Raul Ruiz


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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:
  1. 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.
  2. 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.
  3. 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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