Apple will have to think really different if Gordon Smith’s (R-Ore) reintroduction of the broadcast flag gains traction in Congress, as fair use stands to be replaced by “customary historic use.”
The Electronic Frontier Foundation put out the word on Smith’s proposed legislation. Once in place, the Digital Content Protection Act turns the broadcast flag into law.
The content providers tried to get this past the courts after a compliant FCC permitted broadcast flag regulations, but failed, EFF noted. Smith’s legislation would ratify the broadcast flag technology should it be passed, requiring their placement in all future technologies.
EFF commented on why this would be a Bad Idea:
According to (the entertainment industry), here’s all tomorrow’s innovators should be allowed to offer you:
“customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law.”
Had that been the law in 1970, there would never have been a VCR. Had it been the law in 1990, no TiVo. In 2000, no iPod.
Fair use has always been a forward-looking doctrine. It was meant to leave room for new uses, not merely “customary historic uses.” Sony was entitled to build the VCR first, and resolve the fair use questions in court later. This arrangement has worked well for all involved — consumers, media moguls, and high technology companies.
EFF also provided a link for people to contact their Senators and express their polite opposition to Smith’s ploy. Not ready to do so? Ars Technica dug a little deeper into the proposed legislation. Here’s what they learned about Secure Movement Technology, also part of the bill:
At issue in the legislation are two types of implementation-agnostic “technologies”: 1) a “broadcast flag” technology that’s embedded in the digital signal by the sender and that tells the receiver what it can and cannot do with the digital content; and 2) a “secure moving technology” that the draft legislation defines as follows:
(b) “Secure Moving Technology” is a technology that permits content covered by the Broadcast Flag to be transferred from a broadcast receiver to another device for rendering in accordance with customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law and that prevents redistribution of copyrighted content over digital networks.”
The “secure moving technology” ensures that whatever you do with the signal that leaves the digital broadcast receiver, it definitely won’t be anything you can’t already do right now. Furthermore, even some things that you can currently do will be outlawed if those things could facilitate piracy. This probably means that such devices won’t have much in the way of hi-fi analog outs.
Maybe someday the Supreme Court will decide on the constitutionality of issues like file-sharing and content ownership. Until then, users who are concerned about the potential limitations in store for digital media technology should take some time to learn about the issue here, and express their views (again, politely) to their elected Senator.
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David Utter is a staff writer for Murdok covering technology and business.
