FCC Anti-Piracy Play Rejected

Industry observers described the court decision handed down on Friday as extremely significant, indicating that while the broadcast flag technology -- which is actually a collection of various anti-piracy solutions -- may be dead, the fight over guarding content from illegal copying will continue.

A report on the ruling's impact from Gartner (NYSE: IT) G2 said it creates more uncertainty and delay over the transition of traditional, over-the-air broadcasting to digital television. Analysts who authored the report indicated while technology companies spent much time and effort developing the broadcast flag, they are unlikely to aggressively try again.

"There's going to be a little hesitance to do a whole lot more," Gartner G2 analyst Mike McGuire told TechNewsWorld.

Fearing Flag

Groups declaring victory with the ruling -- including library associations and consumer groups such as Public Knowledge -- had complained that the broadcast flag technology was presented as a narrow mandate to limit only illegal distribution of digital television content, but would actually be detrimental to legitimate media consumers.

"The flag will impose significant strictures and constraints on the design of consumer electronics and computer products -- limitations that will diminish interoperability between new products and old ones, and that even pose interoperability problems among new devices," said a statement from Public Knowledge. "And the flag will limit what users can do with broadcast television content to a significantly greater degree than they are limited now."

The broadcast flag opponents also argued the FCC had overstepped its authority, pointing out that the commission is not permitted to impose "broad product design mandates on consumer devices and computers" nor is it permitted to adopt "what is, for all intents and purposes, copyright policy."

The Circuit Court of Appeals for the District of Columbia agreed the FCC broadcast flag implementations, which would have been required as of July 1, went beyond the commission's authority.

Digital TV Divide

Those in support of the broadcast flag measures -- mainly television broadcasters and the major Hollywood studios -- called Friday's decision a disappointment, but indicated they will continue to work toward adoption of the technology and rules.

Motion Picture Association of America (MPAA) President and Chief Executive Officer Dan Glickman, however, said by slowing or preventing access to digital programming for some consumers, the broadcast flag rejection could create "a digital television divide."

"Television audiences, whether they subscribe to cable or satellite service or not -- are benefiting from the higher quality picture of digital programming," he said in a statement. "If the broadcast flag cannot be used, program providers will have to weigh whether the risk of theft is too great over free, off-air broadcasting and could limit such high quality programming to only cable, satellite and other more secure delivery systems."

Confusion and Delay

Gartner G2 analysts generally agreed the FCC had overstepped its authority, indicating the broadcast flag technologies did not apply during transmission, but instead later, when a user attempted to move the content to other devices.

The analysts, who described broadcast flag as dead unless Congress acts legislatively, added the ruling increases confusion and adds delay to the transition to digital television.

"It hits hardest at over-the-air broadcasters and favors pay TV providers, including satellite and cable [with many years' experience at conditional access] and nascent Internet protocol television (IPTV) using true digital rights management technologies," they wrote.

Far from Over

Jupiter Research vice president Michael Gartenberg told TechNewsWorld that the broadcast flag fight is far from over, adding that some form of piracy control technology will have to be adopted and implemented for digital TV to work.

"The (content) companies have basically said without some privacy protection in place, we will not put our content in this format," he said.

As for technology companies and hardware vendors, Gartenberg indicated they realize they must balance user freedom with piracy protection.

"The technology companies themselves obviously prefer content in the most flexible format for users, but they also understand and respect the need for some controls over that content," he said.