January 20, 2006 | By Fred von Lohmann

New Senate Broadcast Flag Bill Would Freeze Fair Use

Draft legislation making the rounds in the U.S. Senate gives us a preview of the MPAA and RIAA's next target: your television and radio. (Please write your Senator about this!)

You say you want the power to time-shift and space-shift TV and radio? You say you want tomorrow's innovators to invent new TV and radio gizmos you haven't thought of yet, the same way the pioneers behind the VCR, TiVo, and the iPod did?

Well, that's not what the entertainment industry has in mind. According to them, here's all tomorrow's innovators should be allowed to offer you:

"customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law."

Had that been the law in 1970, there would never have been a VCR. Had it been the law in 1990, no TiVo. In 2000, no iPod.

Fair use has always been a forward-looking doctrine. It was meant to leave room for new uses, not merely "customary historic uses." Sony was entitled to build the VCR first, and resolve the fair use questions in court later. This arrangement has worked well for all involved -- consumers, media moguls, and high technology companies.

Now the RIAA and MPAA want to betray that legacy by passing laws that will regulate new technologies in advance and freeze fair use forever. If it wasn't a "customary historic use," federal regulators will be empowered to ban the feature, prohibiting innovators from offering it. If the feature is banned, courts will never have an opportunity to pass on whether the activity is a fair use.

Voila, fair use is frozen in time. We'll continue to have devices that ape the VCRs and cassette decks of the past, but new gizmos will have to be submitted to the FCC for approval, where MPAA and RIAA lobbyists can kill it in the crib.

The new legislation, being circulated by Senator Gordon Smith (R-Ore.), is the first step down that path (and is eerily reminiscent of the infamous 2002 Hollings Bill). It would impose a broadcast flag mandate on all future digital TVs and radios, much like legislation discussed by the House last year.

We've covered the broadcast flag and radio flag extensively in the past. These measures would impose federal regulations on all devices capable of receiving digital television and digital radio signals. What's worse, the regulations won't do a thing to stop "piracy," since there are plenty of other ways to copy these broadcasts.

Sen. Smith's bill would retroactively ratify the FCC's broadcast flag regulations, rejected by the courts last year. This effort to impose content protection mechanisms in all future TVs is still just as terrible an idea now as ever.

The bill would also give the FCC authority to regulate the design of digital radios (both terrestrial HD Radio and XM and Sirius satellite). The bill envisions an "inter-industry" negotiation with a preordained outcome -- federal regulations mandating content protection mechanisms in all future HD Radio and satellite radio receivers.

The FCC regulations could make room for "customary historic uses of broadcast content by consumers to the extent such use is consistent with applicable law." Presumably, that means you could design a digital device just as good as an analog cassette deck, but no better.

Sorry, Sen. Smith, but American innovators and music fans deserve better.

UPDATE: For more on this, check out Public Knowledge's analysis, as well as Boing Boing's.


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