September 26, 2005 | By Danny O'Brien

You Are the MPAA: A Broadcast Flag Update

Imagine you're a happy-go-lucky conglomerate of Hollywood media companies.
Faced with some tweaks to your business model that you'd rather not
contemplate, your members have conceived of an ingenious alternative:
compelling tech companies to implement shoddy copy-protection on every digital
AV-enabled computer in the land.

Let's call this cunning plan the "Broadcast Flag."

Your "Broadcast Flag," while undoubtedly quite brilliant and only slightly
delusional, has been running into a few problems recently. First, after it was
torn to shreds by techies in its drafting committee, you had to shout more than usual to get the FCC to adopt it.

Whereupon it was promptly smacked down in court, which decided that dictating what people can do with free over-the-air digital media after it reaches their home devices is too vast a power, even for the FCC.

Oh well. There's still Congress, right? Ah, if only it were that simple. Turns
out Congress has a quite unnatural fear of signing legislation that meddles in the intimate relationship between American couch potatoes and their TVs. Plus, nowadays the whole political process is scrutinized by
millions of Net types bleating about "transparency" and the need to rein in "special interests." Which, believe me, does not help.

Sometimes you must wonder: How will I ever manage it? Pull yourself together,
media conglomerate! You're a big brave incumbent industry. You can do it!

Let's consider your options...

The traditional way of creating conglomerate-friendly law is to get somebody to draft a bill that incorporates your ideas. Let's call our hypothetical bill the "Save Our Cartel Privilege by Unfeaturing People's Television Act of 2005," or SOCPUPT for short.

Getting backing for consumer-hostile legislation isn't easy -- as you discovered
that with that Induce Act fiasco. Also, congresscritters love to
discuss bills; they consult, they hold hearings. Frankly, you've had it up to here with all the, "that's not in the public interest" business, thank you very much.

So how about slipping a stealth amendment into a bill that can't be defeated?
Like an appropriations bill, Congress's money mega-bill? No one would notice a little Broadcast Flag language in there, right? All you need is one SOCPUPT-supporting senator to sneak it onto an innocent committee agenda, and...

Argh! Just when you're about to do that, thousands of those pesky Net
busy-bodies barge into the committee, blowing your cover. Curse you, Interweb!

Okay, don't panic. Think really devious.

One especially sneaky way to get an amendment passed is to smuggle it into a
reconciliations bill. Reconciliation is the mirror image of appropriations. Appropriations is about taxes; reconciliation is all about making cuts. Because Congress dearly loves to appear thrifty, reconciliations has special fast-track status. It can't be filibustered, it's almost
impossible to amend once agreed upon, and it only needs a plain majority to pass.

Of course, with such good intentions, it's a perfect vehicle for piggybacking unpopular provisions. Except...there's the Byrd rule. Under this point of order, any senator can get a reconciliation clause thrown out if it's not really about government cuts.

This will be tricky, since the Broadcast Flag essentially demands government
interference with every digital AV product on the market.

Ah, but how about -- no, that's far too sneaky. But...perhaps...

Listen. Suppose our sympatico politicos carve out a bunch of Digital TV provisions that, in fact, do have something to do with government finance? Suppose they stick those provisions in the Senate Commerce Committee's reconciliations bill (due October 26th), where they're practically untouchable?

But some key clauses on which these provisions depend will be omitted.
Consequently, it will it be vitally important that Congress passes another Digital TV bill to fill the gaps.

That Digital TV bill will contain -- oh, look at that! -- the Broadcast Flag language. Oh, and the RIAA's Digital Radio Broadcast Flag, too, just for the sake of completeness.

Now our friendly politicians can tell their colleagues that the Digital TV
Completion (n?e SOCPUPT) bill is an essential part of the reconciliation
process, and must be passed as a matter of urgency before the compulsory reconciliations come into effect!

Oh, yes. That is good. Really, you've outdone yourself, major Hollywood conglomerate!

Your only remaining challenge: choosing language to put in to the reconciliations bill that actively requires a Broadcast Flag in the
secondary bill.

And what happens when you publish this legislation, and the cursed Net-enabled public finds out what you're up to?

Find out over the next month, as the MPAA and RIAA join forces to sneak their flags through Congress -- in the next episode of: the Broadcast Flag saga!


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