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Broadcast Flags Rise Again

According to fair use advocates Public Knowledge, the studios and recording industry are pushing for digital video and audio copy-protection language (the so-called broadcast flag) in a new DTV bill the Senate Commerce Committee is working on.

Commerce Chairman Ted Stevens (R-Alaska) said Thursday that he will keep the DTV transition bill focused on the reclaiming of analog spectrum, and work on a second bill to include other issues. That is because Senate rules preclude budget reconciliation bills from including extraneous matter.

Spectrum reclamation will mean billions for the U.S. Treasury, so that bill must be submitted to the budget committee as part of its budget reconciliation process.

It is not clear what issues will be considered extraneous, i.e. multicast must-carry, content protection, subsidies for digital-to-analog converters—but the record industry is said to be working on inserting language into the second bill.

Congress needs to give the FCC the express authority to mandate post-transmission copy-protection technology since a federal appeals court earlier this year found that the FCC has the authority to govern how TV signals are received but not what is done with them after reception of the signal is complete.

In a letter to Stevens earlier in the week, Public Knowledge, Consumers Union and Consumer Federation of America argued that the flag is superfluous in light of other content-protection technology, will harm educators and consumers, and would give the FCC "unprecedented" control over technology.

Copyright holders and broadcasters argue that the flag is necessary to protect digital content from wholesale piracy, while Public Knowledge and others argue it protects entrenched businesses at the expense of innovation and the free flow of information.