August 24, 2005 | By Derek Slater

The Broadcast Flag Cannot Be Fixed

Yesterday, our colleagues at the Center for Democracy and Technology (CDT) published recommendations [PDF] for Congress should it choose to reinstate the broadcast flag, which EFF and a coalition of organizations defeated in court. While we admire CDT's tortured attempt to make the broadcast flag seem reasonable, its suggestions are flawed. That was inevitable--the broadcast flag is fundamentally flawed policy and should be scrapped entirely.

The broadcast flag simply cannot satisfy its stated objective: preventing widespread distribution of digital television content. The "ordinary user" might not be able to get around the restrictions, but it only takes one skilled user [DOC] to put an unencrypted copy online and make it instantly available to everyone.

The flag will, however, chill technological innovation. While less draconian than the FCC's original ruling in certain ways, CDT's proposal ultimately gives the FCC and Hollywood broad veto power over innovation.

The flag will also create significant incompatibilities between devices, especially the millions of HDTV devices consumers have already purchased. CDT would have us throw away our current TVs at the behest of Hollywood in the futile fight against online downloading. In fact, CDT's only "recommendation" to address this problem is to educate consumers on exactly how much of their equipment to dump and repurchase under the new regime. EFF believes consumers deserve better than to be told "tough luck"--they deserve to be able to use digital television content on the device of their choice, including those they've already purchased.

Consumers also should be able to use content for non-infringing uses, such as playback on their laptop or mobile device. CDT's proposal only contains a limited exception for consumer use when it relates to "critical" news or public affairs; that's not enough.

Don't let Congress misinterpret CDT's waffling on the flag as a change to the public's position. Tell your representatives that this flawed policy should be junked, not "fixed."

See also Public Knowledge's official response.


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