PK Testimony on Broadcast Flag

[Seth Johnson]

> http://www.publicknowledge.org/news/testimony/20051103-gbsohn-testimony
> http://static.publicknowledge.org/pdf/20051103-gbsohn-testimony.pdf


Statement of Gigi B. Sohn, President
Public Knowledge


Before the

House Judiciary Committee

Subcommittee on Courts, the Internet and Intellectual Property


Oversight Hearing on

"Content Protection in the Digital Age: The Broadcast Flag,
High-Definition Radio, and the Analog Hole"


Washington, DC

November 3, 2005



Chairman Smith, Ranking Member Berman and other members of the
Subcommittee, my name is Gigi B. Sohn. I am the President of
Public Knowledge, a nonprofit public interest organization that
addresses the public's stake in the convergence of communications
policy and intellectual property law. I want to thank the
Subcommittee for inviting me to testify on content protection in
the digital age, and to comment on what I hope to be the first of
many discussions on three draft pieces of legislation before the
subcommittee, the Broadcast Flag Authorization Act (BFAA), the HD
Radio Content Protection Act (HDRCPA) and the Analog Content
Protection Act (ACPA).1


Introduction and Summary

As some of you know, I served as counsel to the nine public
interest and library groups that successfully challenged the
Federal Communications Commission’s (FCC) broadcast flag rules in
the United States Court of Appeals for the District of Columbia
Circuit. My organization financed and coordinated the case, which
is titled American Library Association v. FCC, 406 F.3d 689 (D.C.
Cir. 2005). I respectfully request that a copy of the court’s
decision and a copy of petitioners’ opening brief in the case be
placed into the record of this hearing.

For Public Knowledge, its members and its public interest allies,
the D.C. Circuit’s decision vacating the broadcast flag rules is
about much more than the ability of citizens to make
non-infringing uses of copyrighted material that they receive
over free over-the-air broadcast television. It is about limiting
the power of a government agency that, in the court’s own words,
has never exercised such "sweeping" power over the design of a
broad range of consumer electronics and computer devices.

For the past seventy years, Congress has never given the FCC such
unbounded authority to control technological design. This has
fostered a robust market place for electronic devices that has in
turn made this country the leader in their development and
manufacture. The broadcast flag scheme would put a government
agency in the position of deciding what software and hardware
technologies will come to market and which will fail.

I urge this subcommittee to think very long and hard before
granting the FCC broad power to engage in this kind of industrial
policy. Ask yourselves, is it good policy to turn the Federal
Communications Commission into the Federal Computer Commission or
the Federal Copyright Commission? I am confident that with the
opportunity for public input and serious deliberation and an
opportunity for public input, you will decide that the
marketplace, not the government, is the best arbiter of what
technologies succeed or fail, and that Congress, not the FCC, is
the correct arbiter of the proper balance between content
protection and consumer rights.

I similarly urge this subcommittee to weigh the costs to
consumers of proposals to mandate content protection for digital
satellite and broadcast radio and to mandate content protection
to close the analog hole. Efforts to limit what consumers can
record over digital radio technologies suffer from many of the
same maladies as the TV broadcast flag -- specifically government
control over technology design. In addition, the proposed radio
content protection legislation permits the FCC extinguishes the
long-protected consumer right, guaranteed by the Audio Home
Recording Act, to record transmissions for personal use.
Furthermore, because the draft bill will impose limits on a new
technology -- so called HD Radio – that, unlike digital
television, consumers need not adopt, those limits may well kill
this fledgling technology. Why would a consumer buy an expensive
new digital broadcast radio receiver when it would have less
functionality than the current analog receiver?

The broad, sweeping draft legislation to close the analog hole
suffers from the same problem; it puts the government in the role
of making industrial policy, and will severely limit consumers’
ability to make lawful uses of copyrighted content. Like the
broadcast flag, the legislation mandates a one-size-fits-all
technology that has not been the subject of public or even
inter-industry scrutiny. The prohibitions in the legislation
would require redesign of a whole range of currently legal
consumer devices, including DVD recorders, personal video
recorders and camcorders with video inputs. Importantly, the
existence of the analog hole has been touted as a "safety valve"
for making fair use of digital media products where circumventing
the technological locks has been rendered illegal by the Digital
Millennium Copyright Act. Should Congress close that hole without
amending the DMCA to protect fair use, consumers' rights to
access digital copyrighted works will be eroded even further.

There are better alternatives for protecting digital content than
the heavy-handed technology mandates proposed here today. Those
alternatives are a multi-pronged approach of consumer education,
enforcement of copyright laws and use of technological tools
developed in the marketplace, not mandated by government. The
recent Grokster decision and the passage of the Family
Entertainment and Copyright Act, which you spearheaded, Mr.
Chairman, are just two of several new tools that the content
industry has at its disposal to protect its content.


Any Legislation to Reinstate the Broadcast Flag or Impose Radio
Copy Protection Should be Considered in Regular Order

As a preliminary matter, I would like to address an important
procedural issue. If this subcommittee and the Congress
ultimately decide to legislate with regard to the broadcast flag
and digital radio copy protection, it should do so in regular
order, and not as part of a budget resolution or appropriations
bill. These matters are not germane to the budget and
appropriations processes. Indeed, they are far too important and
controversial to be legislated on a spending bill. If Congress
ultimately decides that it must try and legislate broadcast flag
and radio content protection mandates, it should do so only after
considerable debate and public input.

There is considerable evidence the public is greatly concerned
with the government’s efforts to mandate digital television and
radio content protection for digital devices. Over 5000
individual consumer comments were filed in opposition to the flag
at the FCC -- where so many consumer comments are rare -- and
tens of thousands of citizens have contacted their Congressional
representatives over the past 6 months (since the D.C. Circuit’s
decision) urging that the TV flag not be reinstated. Clearly,
this is an issue that deserves a full and fair hearing, and not
to be simply attached to a spending bill.2


An FCC-imposed Broadcast Flag Scheme and/or Radio Content
Protection Scheme Will Transform the Federal Communications
Commission into the Federal Copyright Commission

Despite the FCC’s protestations to the contrary, the broadcast
flag scheme and any radio copy protection scheme will necessarily
involve the agency in shaping copyright law and the rights of
content owners and consumers there under. Making copyright law
and policy is not the FCC’s job. It is Congress’ job. Petitioners
brief in ALA v. FCC, at 43-50, lays out this argument in great
detail.

While it is true that the TV broadcast flag scheme does not
completely bar a consumer from making a copy of her favorite TV
show, it does prevent consumers from engaging in other lawful
activities under copyright law. For example, as the D.C. Circuit
noted in ALA v. FCC, the broadcast flag would limit the ability
of libraries and other educators to use broadcast clips for
distance learning via the Internet that is permitted pursuant to
the TEACH Act, Pub. L. No. 107-273, 116 Stat. 1758, Title III,
Subtitle C, §13301, amending 17 U.S.C. §§ 110, 112 & 882 (2002).
See ALA v. FCC, 406 F.2d at 697.

This and other examples highlight that while proponents of the
flag may justify it as prohibiting only "indiscriminate"
redistribution of content over the Internet, it actually
prohibits any and all distribution, no matter how limited or
legal. For example, if a member of this subcommittee wants to
email a snippet of his appearance on the national TV news to his
home office, the broadcast flag scheme would prohibit him from
doing so. Video bloggers would similarly be unable to post
broadcast TV clips on their blogs. Imagine how much different the
debate around broadcast decency would have been had bloggers and
others not been able to post a clip of the now-infamous Janet
Jackson Superbowl halftime performance?

The fact that the broadcast flag will limit lawful uses of
copyrighted content was detailed in the Congressional Research
Service Report entitled Copy Protection of Digital Television:
The Broadcast Flag (May 11, 2005). CRS concluded there that

    While the broadcast flag is intended to "prevent the
indiscriminate redistribution of [digital broadcast] content over
the Internet or through similar means," the goal of the flag was
not to impede a consumer’s ability to copy or use content
lawfully in the home, nor was the policy intended to "foreclose
use of the Internet to send digital broadcast content where it
can be adequately protected from indiscriminate redistribution."
However, current technological limitations have the potential to
hinder some activities which might normally be considered "fair
use" under existing copyright law. For example, a consumer who
wished to record a program to watch at a later time, or at a
different location (time-shifting, and space-shifting,
respectively), might be prevented when otherwise approved
technologies do not allow for such activities, or do not
integrate well with one another, or with older, "legacy" devices.
In addition, future fair or reasonable uses may be precluded by
these limitations. For example, a student would be unable to
email herself a copy of a project with digital video content
because no current secure system exists for email transmission.

    CRS Report at 5.3

Thus, it strains credulity to say, as the FCC has, that the
broadcast flag scheme does not put the agency in the position of
determining copyright owners and consumers’ rights under
copyright law. It is Congress’ duty, not the FCC’s, to find the
proper balance of those rights.

The regulatory scheme proposed under the HDRCPA similarly, and
perhaps even more directly, places the FCC in the position of
determining consumers’ rights under copyright law. Section 101(a)
of the draft bill gives the FCC the authority to

    control the unauthorized copying and redistribution of
digital audio content by or over digital reception devices,
related equipment, and digital networks, including regulations
governing permissible copying and redistribution of such audio
content.

Under this proposal, the FCC is placed in charge both of 1)
determining the extent to which unauthorized copying (which is
legal is some circumstances) of digital broadcast and satellite
radio content is permitted; and 2) determining what kind of
copying and redistribution of audio content is permissible. If
this language is not giving the FCC power to set copyright
policy, then it is hard to imagine what language would do so.


The Broadcast Flag and Radio Content Protection Schemes Would
Give the FCC Unprecedented Control over a Wide Variety of
Consumer Electronics and Computer Devices

The BFAA has been referred to by some as "narrow," because it
purports to do nothing more than reinstate the FCC rule vacated
by the D.C. Circuit in ALA v. FCC. However, for the reasons
discussed below, the FCC rule is anything but narrow.

As the D.C. Circuit recognized in ALA v. FCC, the broadcast flag
gave the agency unprecedented "sweeping" authority over consumer
electronics and computer devices. In a nutshell, it puts the FCC
in the position of deciding the ultimate fate of every single
device that can demodulate a television signal. Thus, not only
must television sets be pre-approved by the FCC, the agency must
also pre-approve computer software, digital video recorders,
cellphones, game consoles and even iPods if they can receive a
digital television signal. Thus, the broadcast flag scheme places
the FCC in the position of dictating the marketplace for all
kinds of electronics.

The agency has neither the resources nor the expertise to engage
in this kind of determination. This type of government oversight
of technology design will slow the rollout of new technologies
and seriously compromise US companies’ competitiveness in the
electronics marketplace.

Some would argue that the initial certification process worked
because all thirteen technologies submitted to the FCC were
approved. However, that is a very superficial view of that
process. First, it is widely known that several manufacturers
removed legal and consumer-friendly features of their devices
before submitting them to the FCC, largely at the behest of the
movie studios. Second, the changing nature of the FCC and its
commissioners is likely to make for widely varying results. Given
the fervor of then- Commissioner Martin’s dissent to the
Commission’s approval of TiVo-To-Go, it is unlikely that such
technology would be certified today under Chairman Martin’s FCC.4

The HDRCPA would similarly place the FCC in the position of
mandating the design of new technologies. The plain language of
the draft bill gives the FCC the authority to adopt regulations
governing all "digital audio receiving devices." In the case of
so-called High Definition (or HD) Radio5 this could have the
unintended consequence of destroying this new technology at
birth. Digital broadcast radio benefits consumers through
improved sound quality (particularly for AM radio) and the
ability for radio broadcasters to provide additional program
streams and metadata. Unlike digital television, however,
consumers need not purchase digital broadcast receivers to
continue receiving free over the air broadcast radio. Certainly,
if digital radio receivers have less functionality than current
analog radio receivers, consumers will reject them and the market
for HD radio will die. Moreover, because the HDRCPA also applies
to digital satellite radio, it has the potential to cripple this
increasingly popular, but still nascent, technology.


Legislation to Close the Analog Hole is Premature, Unnecessary
and Would Further Tip the Copyright Balance Against Consumers

The Analog Content Protection Act is a detailed and extremely
complicated technology mandate that deserves further
consideration by my organization.

Preliminarily, I would note that this is the first time in the
recent discussion over digital content protection that CGMS-A +
VEIL technology have been proposed. While the CGMS-A + VEIL
technology was discussed at the Analog Hole Reconversion
Discussion Group, it was quickly dismissed as not worthy of
further consideration. Thus, unlike the broadcast flag, this
technology has not been fully vetted by industry and public
interest groups.

Accordingly, we are quite surprised that CGMS-A + VEIL is being
presented today as a fully formed, mature proposal to Congress.
If Congress feels it must do something about the analog hole, it
should refer the technology back to industry and public interest
groups so CGMS-A+VEIL can be thoroughly analyzed for its impact
on consumers and the cost to technology companies. In the
complete absence of any such review, the one-sided imposition of
such a detailed technology mandated would be unprecedented.

Based on a preliminary analysis of the ACPA, I would like to make
the following brief substantive points:

    * The ACPA would impose an inflexible, one size fits all
technology mandate that is more intrusive than the broadcast
flag: The ACPA mandates that each and every device with an analog
connection obey not one, but two copy protection schemes. Thus,
while the broadcast flag would put the FCC in charge of design
control just for technologies that demodulate a broadcast signal,
the ACPA would mandate design for every device with an analog
connector, including printers, cellphones, camcorders, etc. Like
the broadcast flag, it sets in stone a copy protection technology
for technologies that are always changing.
    * The ACPA would impose a detailed set of encoding rules that
would restrict certain lawful uses of content. The proposal’s
tiered levels of restriction based on the type of programming
(e.g., pay-per-view, video on demand) limit lawful uses in a
manner that ignores the four fair use factors of 17 U.S.C. §107. 
Thus, the draft legislation upsets the balance established in
copyright law between the needs of copyright holders and the
rights of the public by placing far too much control over lawful
uses in the hands of the content producers.
    * Would eliminate the DMCA’s safety valve. One of the common
justifications for limitations on fair use imposed by the
anti-circumvention provisions of the DMCA is that the analog hole
is available for individuals who, for example want to make a
snippet of a DVD using a video camera held up to the TV screen.6
The ACPA would eliminate that safety valve.
    * The exception for legacy devices renders the ACPA
ineffective. The ACPA exempts from its grasp the millions of
legacy devices with analog connectors. It is unlikely that any
action to try to close the analog hole will be effective. There
are millions of video recording devices in homes that will
operate for years and not be covered by this act. At the same
time, the ACPA will discourage sales of new products because
consumers will realize that the newer technologies will have less
functionality than older technologies.
    * Must be considered in the context of broadcast flag
legislation.  Without broadcast flag legislation, the ACPA would
be an ill-considered technology mandate that will increase costs
and limit consumer rights; together with a broadcast flag
mandate, the ACPA would allow nearly complete control over what
consumers may do with content they have purchased or otherwise
received legally.

Copyright Law and Marketplace Initiatives are Better Vehicles for
Finding the Proper Balance Between Content Protection and
Consumer Rights than are Government-imposed Technological
Mandates

I am often asked the following question: if Public Knowledge
opposes the broadcast flag, radio content protection and closing
the analog hole, what are better alternatives to protect digital
television and radio content from infringing uses? The best
approach to protecting rights holders' interests is a
multi-pronged approach: by better educating the public, using the
legal tools that the content industry already has at its
disposal, and the technological tools that are being developed
and tested in the marketplace every day. In the past year alone,
the content industry has used and won several important new tools
to protect content, including:

    * The Supreme Court’s decision in MGM v. Grokster and its
aftermath. The Supreme Court gave content owners a powerful tool
against infringement when it held that manufacturers and
distributors of technologies that are used to infringe could be
held liable for that infringement if they actively encourage
illegal activity. The result has been that a number of commercial
P2P distributors have gone out of business, moved out of the
U.S., or sold their assets to copyright holders.
    * Lawsuits against mass infringers using P2P networks. Both
the RIAA and the MPAA continue to sue individuals who are engaged
in massive infringement over peer-to-peer (P2P) networks. By
their own admission, these lawsuits have had both a deterrent and
educative effect.
    * Passage of the Family Entertainment and Copyright Act. The
FECA gave copyright holders a new cause of action to help limit
leaks of pre-release works and made explicit the illegality of
bringing a camcorder into a movie theatre. It also provided for
the appointment of an intellectual property "czar" to better
enforce copyright laws.
    * Agreements by ISPs to pass on warning notices. It is
apparent that the war between Internet Service Providers and
content companies has begun to cool. Last month, Verizon and
Disney entered into an agreement by which Verizon will warn
alleged copyright infringers using its networks, but will not
give up their personal information to Disney.
    * Increased use of copy protection and other digital rights
management tools in the marketplace. There are numerous instances
of the use of digital rights management tools in the marketplace.
iTunes Fairplay DRM is perhaps the most well known, but other
services that use DRM include MSN music and video, Napster, Yahoo
Music, Wal-mart, Movielink, CinemaNow and MovieFlix. The success
of some of these business models are a testament to the fact that
if content companies make their catalogues available in an easily
accessible manner, with flexibility and at a reasonable price,
those models will succeed in the marketplace, without government
intervention.

These tools are in addition to the strict penalties of current
copyright law, including the DMCA. To the extent that the content
industries are looking for a "speed bump" to keep "honest people
honest," I would contend that many such speed bumps already
exist, while more are being developed every day without
government technology mandates.

Finally, by far the most effective means of preventing piracy is
for the content industry to do what it took the music far too
long to do7 – satisfy market demand for easy access to content at
reasonable prices (which a free market will inevitably produce)
that consumers can enjoy fairly and flexibly. DVDs are the best
example of the market working. There, a government mandate –the
Digital Video Recording Act – was rejected and an industry-agreed
upon fairly weak "keep honest people honest" protection system
was adopted. Despite the fact that the protection system was
defeated long ago, the DVD market has grown at an astounding rate
– from zero in 1997 to $25,000,000,000 in sales and rentals last
year. As I noted above, new music and movie digital download
services are just now emerging in the market. We sincerely
believe these efforts, if supported vigorously by the content
industry, along with industry-agreed upon protection, will make
government intervention in the free market unnecessary.


Conclusion

The draft bills presented here today reflect a vision of the
future where government places itself squarely in the middle of
technological design, and where consumers rights to make lawful
uses of copyrighted content are determined by a government agency
that is tasked with regulating our nation’s communications
system. That vision is antithetical to the largely successful and
generally balanced system we have now, where the marketplace is
the driver of technological innovation, and copyright law,
developed by Congress, governs consumers’ rights. Because this
vision of the future so radically departs from the present, I
urge this subcommittee to proceed slowly, with great deliberation
and with input from the public given great weight.

I want to again thank Chairman Smith, Ranking Member Berman and
the other members of the Subcommittee for holding this hearing to
discuss how to balance digital content protection with consumer
rights to make lawful uses of copyrighted works. I look forward
to answering any questions you may have.

1. I would like to thank Neil Chilson, Public Knowledge’s legal
intern, Heidi Wachs, Public Knowledge’s legal fellow, and Fred
Von Lohmann and Seth Schoen of the Electronic Frontier Foundation
for their assistance with this testimony.

2. Moreover, Public Knowledge believes that any debate about
technological mandates of the kind proposed here would be
incomplete without a thorough consideration of how these
mandates, together with the anticircumvention provisions of the
DMCA, place limits on consumer rights and technological
innovation. It has been suggested that H.R. 1201, "The Digital
Media Consumers Rights Act" as introduced in the House Committee
on Energy and Commerce, may provide a proper balance to the legal
limitations imposed on consumers and innovators. Clearly this is
a debate that deserves full public attention.

3. The equipment incompatibility problems caused by the broadcast
flag scheme are myriad, and should be taken into account by this
subcommittee as it considers the BFAA. In addition to the
compatibility problems discussed in the CRS report (e.g., the
inability to make copies on one system and play it on another),
for example, none of the 13 different technologies approved by
the FCC in its interim certification process are able to work
with each other. This means that a consumer who buys one Philips
brand flag-compliant device must buy all Philips brand flag
compliant devices. This raises consumer costs, and also raises
serious questions about competition among and between digital
device manufacturers. For a detailed discussion of these issues,
see
http://www.publicknowledge.org/content/presentations/bflagpff.ppt

4. For a detailed analysis of the flaws of the FCC’s
certifications process, see Center for Democracy and Technology,
Lessons of the FCC Broadcast Flag Process (2005), found at
http://cdt.org/copyright/20050919flaglessons.pdf

5. I say "so called," because calling a digital radio broadcast
signal "High Definition" is quite misleading. Whereas in the
television context, High Definition connotes a far clearer and
sharper picture, an HD radio signal simply raises the quality of
AM radio to FM standards, and permits the reception of broadcast
radio in places where an analog signal would get cut off, such as
in a tunnel or at a traffic light. Indeed, an "HD" quality signal
is not even a CD quality signal. See, Ken Kessler, Digital Radio
Sucks, it’s Official, found at
http://www.stereophile.com/newsletters/.

6. See Testimony of Dean Marks, Senior Counsel Intellectual
Property, Time Warner, Inc., and Steve Metalitz, Representing
Content Industry Joint Commenters, before the Copyright Office in
Rulemaking Hearing: Exemptions From Prohibitions On Circumvention
Of Technological Measures That Control Access To Copyrighted
Works, May 13, 2003 at 60-61: "I think the best example I can
give is the demonstration that Mr. Attaway [MPAA Executive Vice
President for Government Relations and Washington General
Counsel] gave for you [Marybeth Peters, Registrar of Copyrights]
earlier this month in Washington in which he demonstrated that he
used a digital camcorder viewing the screen on which a DVD was
playing to make a excerpt from a DVD film and have a digital copy
that could then be used for all the fair use purposes
." (Mr.
Metaliz at 60.) "I agree with everything Steve has just said
about fair use copying or taking clips 
 with digital camcorders
and analog camcorders being widely available 
" (Mr. Marks at
61.)

7. See Keynote Address of Edgar Bronfman, Chairman and CEO of
Warner Music at
http://www.tvworldwide.com/events/pff/050821/agenda.htm. "The
Music Industry, like almost every industry faced with massive and
rapid transformation first reacted too slowly and moderately,
inhibited by an instinctive and reflexive reaction to protect our
current business and business models."