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Broadcast Flag Controversy Explained

In-stat offers perspective on fair use controversy -- "Almost two years ago, the United States Federal Communications Commission approved a regulation called the "Broadcast Flag." The regulation mandated that after July 1, 2005, all consumer electronics devices sold that could receive over-the-air terrestrial television signals must also be able to detect and read "Broadcast Flags." These Broadcast Flags are actually small pieces of software code embedded in a digital terrestrial television stream that can be recognized by consumer electronics products like digital TV sets, PVRs, and even PCs with TV tuner cards.

However, this past May the US Court of Appeals for the District of Columbia Circuit ruled that the FCC lacked the necessary jurisdiction to establish the Broadcast Flag regulation. This ruling effectively stopped the implementation of the Broadcast Flag, and put the future of the content protection initiative in doubt.

So what was all the fuss about? Depending on who you listen to, the Broadcast Flag regulation was either a necessary tool designed to prevent digital TV signal piracy, or it was an unnecessary restriction of the "Fair Use" rights of US consumers.

The Broadcast Flag was created out of a concern that the content creators, specifically the broadcast networks like NBC, CBS, Fox, and ABC, would "have no incentive to provide digital video" content over the airwaves due to the high threat of content piracy. The broadcasters argued that consumers could simply pluck digital terrestrial broadcasts out of the air and record them on DVDs or hard disk drives. Then, according to this argument, these recordings could be redistributed over the Internet, thus fulfilling the broadcasters worst nightmare: A Napster-like environment where they lose control over the distribution of their content.

Unsurprisingly, movie studios and TV broadcasters were the driving force behind the Broadcast Flag regulation. The organizations that led the charge were the National Association of Broadcasters (NAB) and the Motion Picture Association of America (MPAA). Conversely, self-styled consumer groups like Public Knowledge opposed the regulation, and ultimately filed a lawsuit that led to the May 2005 Appeals Court ruling.

So have we heard the last of the Broadcast Flag? The answer to that question is no. Based on continued support from both the content development community and leading consumer electronics manufacturers, In-Stat believes that the Broadcast Flag is far from dead.

In fact, based on numerous discussions with key players in the Broadcast Flag debate, it seems likely that a Broadcast Flag bill will be introduced in Congress later this summer, with the bill debated and passed into law before the end of 2005. If this scenario does play out as predicted, then final implementation of the Broadcast Flag will likely occur in early 2006."

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