On November 4, the Federal Communications Commission published a Report And Order And Further Notice Of Proposed Rulemaking approving the “broadcast flag” scheme for copy protection for broadcast digital television. The order requires that all DTV tuners, as well as devices that receive or manipulate DTV content in the home, incorporate certain content protection technologies that will protect broadcast programming from unauthorized copying. The range of devices affected by the new order is likely to include personal video recorders, DVD recorders, and personal computers used to display or manipulate DTV content.The new copy protection scheme is known as the “broadcast flag,” referring to a single-bit indicator (“flag”) that broadcasters may incorporate into an over-the-air DTV signal to indicate that a program requires copy protection. DTV tuners will be required to detect the flag at the point of demodulation (separation of the digital stream from the analog carrier wave). When the flag is detected, the tuner will be required to apply an approved form of copy protection to the digital stream before passing the content to another device (or sub-device) for recording, manipulation, or display. The FCC emphasized in its Order that the goal of the broadcast flag scheme is to prevent Internet redistribution of copyrighted works -- not to prevent reasonable consumer uses of broadcast television.
The FCC’s order does not go into detail about which copy protection technologies will be approved to handle content protected under the broadcast flag scheme -- a crucial question for device makers attempting to introduce DTV-related products. The original broadcast flag proposal by the Motion Picture Association of America (MPAA) proposed that new technologies could become certified in four different ways -- (1) approval by three major motion picture studios; (2) approval by two major studios and ten equipment manufacturers; (3) demonstration that a new technology is “at least as effective” as an already-certified technology, and; (4) the new technology is explicitly referenced as an acceptable output/recording technology in the licensing terms of an already-approved technology. In its recent order, the FCC acknowledged that substantial controversy surrounded this proposed process; in particular, commentators were concerned that such a process could give one industry inappropriate authority over another. In its recent order, the FCC did not approve the proposed system, instead publishing a Further Notice Of Proposed Rulemaking to consider more extensively how new technologies ought to be approved for use with DTV. In the interim, the FCC itself will approve new technologies.
While the FCC’s order establishes the basic framework for copy protection in DTV, numerous difficult questions concerning the technologies that will be used, their impact on consumers, and their effect on technological development, remain unanswered. As a result, lobbying groups from the content, IT, consumer electronics, and public interest communities are preparing for continued discussions about key specifics of the flag scheme.