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Copyright Protection of Digital Television: The Broadcast Video Flag

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Abstract:

In November 2003, the Federal Communications Commission (FCC) adopted a rule that required all digital devices capable of receiving digital television (DTV) broadcasts over the air, and sold after July 1, 2005, to incorporate technology that would recognize and abide by the broadcast video flag, a content-protection signal that broadcasters may choose to embed into a digital broadcast transmission as a way to prevent unauthorized redistribution of DTV content. However, in October 2004, the American Library Association and eight organizations representing a large number of libraries and consumers filed a lawsuit that challenged the power of the FCC to promulgate such a rule. In May 2005, the United States Court of Appeals for the District of Columbia Circuit ruled in American Library Association v. Federal Communications Commission that the FCC had exceeded the scope of its delegated authority in imposing the broadcast flag regime, and the court thus reversed and vacated the FCC's broadcast flag order.

Parties holding a copyright interest in content transmitted through DTV broadcasts, in particular broadcasters and television program creators, remain concerned about the unauthorized distribution and reproduction of copyrighted DTV content and thus continue to advocate the adoption of a broadcast video flag. However, several consumer, educational, and technology groups raise objections to the broadcast flag because, in their view, it would place technological, financial, and regulatory burdens that may stifle innovation, limit the consumer's ability to use DTV broadcasts in accordance with the Copyright Act's "fair use" principles, and possibly frustrate the use of digital television content by educators and librarians in distance education programs.

This report provides a brief explanation of the broadcast video flag and its relationship to digital television and summarizes the American Library Association judicial opinion. The report also examines a legislative proposal introduced in the 109th Congress, the Digital Content Protection Act of 2006, which appeared as portions of two bills, S. 2686 and H.R. 5252 (as reported in the Senate), that would have expressly granted statutory authority to the FCC under the Communications Act of 1934 to promulgate regulations implementing a broadcast video flag system. Although not enacted, these bills represent approaches to authorizing the broadcast video flag system that may be of interest to the 110th Congress.