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Hill Raises Flag Again

If the witnesses in a Senate Commerce Committee hearing on the broadcast flag Tuesday are any gauge, the committee is likely to authorize the FCC to establish--re-establish, actually--the content-protection technology.

The flag prevents the easy post-transmission distribution of digital broadcasts over the Internet.

On one side are librarians, fair use fans, and some consumer electronics companies, who argue the technology could crimp creativity and prevent the fair redistribution of such content for home use--home networking, for instance--or educational purposes, including distance learning.

On the other side are broadcasters and content providers who say that, without the flag, piracy will wreak havoc with their business models, preventing them from distributing the broadcast content that will allow stations to compete in a world where other multichannel providers can encrypt their channels.

The fair-use fans were still pushing against the flag Tuesday, but they were also saying that, if it were reinstituted, there needed to be narrow regs that would carve out exceptions for home use and distance learning.

There is currently a draft of a bill circulating from Commerce Committee member Senator Gordon Smith (R-Ore.) that would reinsitute the flag for prevention of the "indescriminate" redistribution of digital broadcasts, as well as establish one for digital audio transmissions.

In arguing for putting specific carve-outs in that bill, Jonathan Band, counsel for the American Library Association, said a distance-learning course on criminal justice might want to use a clip from Law & Order. There is currently an exception in copyright law for that fair use, but if the flag were in place, it could not be distibuted over the Internet.

Fox tech chief Andy Setos said that the flag and fair use were not incompatible, that the flag would not supercede existing copyright exemptions, and added that he would not oppose writing the law to make that clear. Setos has a rooting interest in the flag, since he is one of its co-inventors.

And on the subject of distributing over the Internet, Setos also pointed out that with 100 megabyte-per-second downloads in some company's sights, an hour episdoe of Fox drama 24 in high-definition would take only a "convenient" four-and-a-half minutes to download.

The Commerce Committee initially charged the FCC to come up with the flag as a way to speed the digital transition, but the D.C. appeals court threw out its rules establishing the flag, saying that, because the technology applied to post-transmission redistribution, the commission did not have the authority to mandate it, though it pointed out that Congress could expressly give it that authority, which it is likely to do.

Commerce Committee Co-Chairmen Ted Stevens (R-Alaska) and Daniel Inouye (D-Hawaii) have both suggested the flag, though not a perfect solution, is needed.