Broadcast Flags and the War against Digital Television Piracy: A Solution or Dilemma for the Digital Era?

I. INTRODUCTION II. THE MECHANICS OF THE SOLUTION A. The ATSC Flag B. The Flag's Technical Strengths and Vulnerabilities 1. Strengths of the Flag 2. Weaknesses of the Flag III. COMMISSION AUTHORITY A. Jurisdictional Issues B. The Vote Breakdown C. Questions of Implementation IV. IMPLICATIONS OF THE TECHNICAL SOLUTION A. Copyright Law B. Public Policy Concerns V. ALTERNATIVE SOLUTIONS VI. FUTURE LITIGATION: NAPSTER PART TWO? VII. CONCLUSION I. INTRODUCTION On November 4, 2003 the Federal Communications Commission ("FCC") formally adopted the "broadcast flag" as the primary anti-piracy tool for digital television transmissions. (1) This regulatory measure is intended to facilitate a consumer transition from analog to digital-signal television transmissions by ensuring high quality content, thereby encouraging consumer investment in digital technologies. (2) The FCC's goal is to complete the transition to digital broadcasts by 2007. (3) The flag is a technological measure designed "to prevent mass distribution [of digital television broadcasts] over the Internet." (4) Presumably driven by fears of a repeat performance of Internet music piracy in the television industry, the FCC seeks to protect content owners before sharing becomes too widespread. The ruling, however, has been far from uncontroversial. Critics of the regulation claim that the FCC's response to the risk of digital television piracy is disproportionate to the actual threat posed, (5) and that the ruling places unnecessarily broad restrictions on the public's ability to redistribute digital content, especially given that the regulation does not prohibit using the flag on public works. (6) Nonetheless, proponents claim it is a necessary step to ensuring high-quality content on television by curbing the high costs incurred by the widespread piracy of Digital Television ("DTV"). Without this measure, proponents claim, wary content owners will move their high-quality fare to more secure cable and satellite networks, resulting in higher costs to the consumer. (7) In the FCC's report, several FCC commissioners recognize the tension between these two interests. The commissioners approved the order adopting the flag, but dissented in part to the decision, citing the dangers of a regime which regulates such a broad range of content. (8) This Note argues that the FCC's adoption of the broadcast flag as a regulatory measure is both a warranted and a proper method of protection for content owners, given the problems of piracy in other areas of mass media and the strong likelihood that such problems will continue to arise in the digital television context. Piracy of content is an inevitable consequence of the release of new media technologies. It has emerged as a significant problem across various media, from digital video disc ("DVD") movies to file sharing in music, and soon may be as significant of an issue in file sharing of digital broadcasts. Sharing of such DTV broadcasts is already possible over the Internet with current technology, though at slower speed in digital form. (9) However, the regulation has important flaws that should be readdressed. For example, the FCC failed to exclude news and public programming from the flag. (10) Also, no specific measures were taken to) ensure that new digital technologies are able to emerge alongside this restriction. In order to ensure that this happens, all relevant groups should be considered in the decision-making process. Consumer groups should be allowed to respond to the industry players that have been strong supporters of the flag, Finally, the fair use doctrine must be a main consideration, and there must be enough breathing space given to the public so that it can engage in fair use of digital broadcasts. If these factors are taken into account in the drafting of further rules, the temptation to over-regulate can be sufficiently tempered and the ultimate transition to DTV can progress more smoothly. …