The Clicker: The Broadcast Flag Revisted

Every Thursday Stephen Speicher contributes
The Clicker, a weekly column on television and technology:

As the old saying goes – be careful what you wish for.  You might just get it.

On Friday May 6th, the U.S. Court of Appeals for the D.C. Circuit
ruled that the FCC had overstepped its bounds with regards to the Broadcast Flag.  The three-judge panel unanimously held that "the FCC has no authority to regulate consumer electronic devices that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission."  So, goodbye Broadcast Flag.  We barely knew ye.

While libertarians and Slashdotters alike rejoice in the decision, the question still remains: for those interested less in the moral victory and more in getting their HD, is this a good thing?

Don?t misunderstand; the Broadcast Flag was not, nor will it ever be, a good idea.  It limited fair-use, and it placed restrictions where there shouldn?t be any.  Furthermore, the FCC?s land-grab mentality when it comes to control and power is, at times, chilling.

However, the fact remains: the Broadcast Flag was a highly sidestep-able solution to the ?problem? of content-protection.  The technical implementation had more loopholes than a bowl of Fruitloops.  Device manufacturers had little incentive to bulletproof their devices and, unlike OpenCable devices, testing wasn?t rigorous enough to ensure that content stayed protected.  Furthermore, broadcasts remained in-the-clear and there was nothing to disrupt existing receivers/recorders.  In short, the Broadcast Flag would have been as effective as DVD
protection.

It was evil, sure, but it was a known evil.  It was a rather ineffective evil.

So what now?

The options are threefold.  First, the MPAA and the NAB can give up without a fight and we can all live happily ever after.  However, that option seems unlikely.  In a statement responding to the court?s decision, NAB
President and CEO Edward O. Fritts indicated the NAB?s desire to work with Congress in order to authorize implementation of the Broadcast Flag, saying ?We will work with Congress to authorize implementation of a Broadcast Flag.?

This leads to option two: Congress gets involved.  If the idea of the FCC determining ?fair use? was chilling,
get ready to become a member of the Polar Bear club.  To this day I still wake up in a cold sweat when I have nightmares of Fritts?s homophonic brother, Ernest ?Fritz? Hollings, and his desire to rule all things digital. 
Last Friday?s decision opened up the possibility that the same brain-trust that gave us such hits as the ?Consumer Broadband and Digital Television Promotion Act? and the ?Digital Millennium Copyright Act? could be in charge of DTV
copy-protection.  Want a scare?  Check those two out.

Now ? let?s assume that nothing else happens: Congress backs off and nothing replaces the Broadcast Flag.  At that point we get to play a game of chicken with the broadcasters.  While most believe that broadcasters are actually too smart to follow through with such threats,  they have threatened to cease broadcasting in HD if something akin to the Broadcast Flag isn?t implemented.  They argue that without a Broadcast Flag there is insufficient protection of their high-quality programming.  

Perhaps that?s why they?ve replaced all their high-quality programming with Reality TV.  Their thought? 
Nobody will want to send copies of a B-list actor?s brother giving roses to desperate, attention-craved women.

Two things are clear ? the court?s decision isn?t the end of this circus and uncertainty isn?t likely to help the transition to digital television.

If you have comments or suggestions for future columns, feel free to drop an email to
theclicker@theevilempire.com.