FCC Anti-Piracy Play Rejected

A U.S. Circuit Court of Appeals ruling against the Federal Communication Commission’s requirement of broadcast flag anti-piracy technology may give consumers more control over how they watch and record broadcast content, including digital television. That programming may be limited, however, because of content providers’ concern over piracy.

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 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.


  • Why do news sites insist on headlining this story with "Anti-Piracy" when it’s obviously "Anti-Fair Use"?? Hollywood surely doesn’t care about "piracy" or they’d try to go after pirates: people who make a living making copies of entertainment media. Over and over, they’ve used advances in technology as opportunities to get into my home and stop me from doing what the courts and the legislature have called "fair use." They waste taxpayer money on measures that would not slow down a pirate for a heartbeat, but they somehow get news sites to say it’s "anti-piracy." Could it possibly be that media consolidation means that most of the news sites are owned by the same people who own Hollywood?

  • Way back the MPAA tried to take our right to record regular television with VCRs away and failed. That failure earned them BILLIONS of dollars when the market for Movies on VHS openend up.
    Now they want to kill the DVR, because they have this pipe dream of charging everyone for every viewing. But they have to take away my over 20 years of being able to record brodcast content. That’s too high a price to pay all around. They should learn their lesson from the last time and figure out how to make billions of dollars off of HD content, instead of how to cripple it so that no one will really want it or be able to do what they want with it.
    Everyone knows full well that if they get the copy flag, all the biggest shows will once again DEMAND that you sit in front of the TV a the networks pre-determined time or miss the show. If that’s my choice, I think I’ll miss. Of course I’m sure they’ll be more than eager to set up a service where I can pay them a couple of bucks a time to get my fair use recording rights "back".
    I say to hell with the copy flag.

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