Lawmakers have revived legislation that could provide a huge boost to efforts by music and movie studios to curb online piracy by letting federal agencies write rules that outlaw tactics used to copy programs when they are broadcast.
Two bills on Capitol Hill dealing with so-called broadcast flags are now being circulated for comment. The legislation is seen as a response to court rulings that struck down earlier attempts by the Federal Communications Commission (FCC) to put broadcast flag rules in place.
Help From Congress
A third bill, meanwhile, is being passed around that would require device makers to ensure that digital protections are kept in place if a recording is transferred from digital to analog form. One way around embedded digital rights tools is to convert a recording to analog.
The non-profit group Public Knowledge, which helped overturn broadcast flag rules in court, said on its Web site that it appears some lawmakers will attempt to attach the legislation to a digital television bill now making its way through Congress.
Broadcast flag rules would require that makers of consumer electronics and computers make devices that are able to read and obey “flags,” or signals embedded in digital television transmissions. Those flags would then prohibit the transmission from being copied in certain ways, including being uploaded to the Internet for sharing.
Public Knowledge fought the flag on the grounds that it unfairly limited how consumers could manipulate the broadcast signals they were receiving and that the FCC had exceeded its authority. It and other groups say studios are also pushing the limits by claiming the need to extend flags and other technology to include digital radio signals.
A Federal Appeals Court agreed in May and as a result both the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) stepped up efforts to lobby federal lawmakers to push through new legislation to give the FCC that authority.
A hearing on the bills is slated for tomorrow before the House Subcommittee on Courts, the Internet, and Intellectual Property. Among those slated to testify are RIAA and MPAA executives, along with the president of Public Knowledge and a lobbyist representing the Home Recording Rights Coalition and the Consumer Electronics Association.
Electronic Frontier Foundation (EFF) activism coordinator Danny O’Brien said taken together the bills could spell the end of personal control of electronic devices and content alike.
“Forget, realistically, that your computer will ever be under your control again,” O’Brien said. “Video content will be crippled, far more than it ever was in its old analog home.”
Consumers will be limited to authorized recording methods and the rules will make it “near impossible” for circumvention even for what today is considered fair use, he added.
“The law is littered with throwaway requirements that would smack our economy and social norms in the face as well,” O’Brien said.
The EFF also expressed concern that the flag legislation would make dozens of existing products illegal and if passed 20 years ago, would have prohibited the development or marketing of the VCR.
But supporters say the stakes are high and that protection is needed for content owners soon. Without it, they say, many studios will stop authorizing broadcasting of their content over the air rather than subject it to piracy. Instead, the argument goes, they will turn to paid platforms where additional protections against piracy are already in place.
Those watching the legislation say pressure is mounting to pass some form of the broadcast flag legislation, though it may be in altered form by the time the House and Senate come to agreement on final language. Consumer groups have managed to water down earlier versions of similar legislation, for instance getting the INDUCE Act, which would have let studios sue device makers directly, stripped out of an online privacy bill passed late in the legislative session last year.
Meanwhile, similar legislation is being put forward in Europe, where a coalition of content owners is pushing a slightly different, and some say even more restrictive version of broadcast flags.