Introduction


Bells ring-a-lingin’, firecrackers poppin’
Lighting up the sky
Hail to the flag, It’s the 4th of July

Roger Miller – The 4th of July


Three days before Americans celebrate Independence Day and salute their flag in a display of fireworks, another flag will be introduced with less fanfare: the broadcast flag. This flag is not about independence, but will have to be saluted nonetheless. In order to protect digital over-the-air television signals against unauthorized (re)distribution, especially via p2p networks, all devices capable of receiving these signals will become dependent on the broadcast flag regime and its executioners. For users of digital television content and manufacturers of consumer devices the 1st of July will be marked as "Dependence Day".

Background
US Congress is pushing to bring the higher quality of digital television in the US living rooms and expects broadcasters to air digital television signals by 2006. This is an optimistic goal, to say the least. Some critics think it’s a matter of decades (see e.g. Thierer 2001). Nonetheless, (video) content producers have called for the protection of aired digital content. They fear that users will be able to widely redistribute the received digital broadcastings over the internet if no protection system is in place. This redistribution, popularly labelled as piracy, would undermine their current business model, which depends on the exploitation of multiple distribution streams for the same work: e.g. box office performance, (DVD) sales and rentals, (paid) cable distribution, next to (digital) over-the-air broadcasts (see Crawford 2004, pp. 607, 610). Some content producers state that without a protection scheme for digital broadcasting they would not permit their content to be broadcasted digitally. This in turn would undermine the willingness of users to buy into digital television and frustrate the transition from analogue to digital television. As this transition would free up a great part of the analogue spectrum, which will be auctioned off to the benefit of the US government, the political pressure on the FCC to support a smooth transition has been high (see Crawford 2004, p. 609).

The FCC’s broadcast flag
It is against the sketched background that on November 4th 2003 the FCC adopted the broadcast flag regime, recognizing and catering to the fears of the movie and video producers: "We conclude that by taking preventive action today, we can forestall the development of a problem in the future similar to that currently being experienced by the music industry" (see FCC Report 2003, p. 5). This preventive action seeks to assure secure channels by regulating the devices that receive digital television signals. These devices may only redistribute received digital content if a flag that is transmitted with the signals, the broadcast flag, allows this. The architecture of the receiver and the devices connected to it have to provide a trusted environment that keeps the digital content locked-in, unless the redistribution outside this environment is permitted by the flag. In short: a receiving device checks for the presence of the flag; flagged content is encrypted with approved technologies; digital copies of the flagged content may be made with approved copy protection technologies; redistribution of flagged content is only allowed within a trusted environment to other devices that abide to the set security rules.

From July first only those devices that meet these conditions may be distributed and sold within the US (see Section 47 CFR 73.9002(b) FCC ruling). The FCC has made the scope of this mandated DRM scheme perfectly clear: "We further note that we intend our redistribution control regulations to apply to any device or piece of equipment whether it be consumer electronics, PC or IT device that contains a tuner capable of receiving over-the-air television broadcast signals" (FCC Report 2003, p. 18). Users that want their digital television sets, TiVos, computers and other devices to be able to process digital television content, will all have to salute to the flag from this summer on.

Alternatives to the broadcast flag, such as encryption of the television signal at the source and watermarking or fingerprinting the content, have been considered by the FCC, but rejected with the argument of not providing enough security (see FCC 2003, pp. 11-13).

The debate about the broadcast flag
There has been considerable critique on the broadcast flag. This critique mainly relates to (the effectiveness of) its security regime (1), the interests of users (2) and its influence on (future) innovation (3).

(1) Security regime
a) inappropriate threat model: the broadcast flag as security regime lacks a clear "threat model". For the FCC, the threat, i.e. the goal of its regulation, is clear. The FCC seeks to prevent the distribution of any copy of digital television content on p2p networks: "(T)he express goal of a redistribution control system for digital broadcast television (is) to prevent the indiscriminate redistribution of such content on the Internet" (see FCC Report 2003, p. 6, italics added). However, its regime is likely to have another effect: to prevent casual copying by the average user – but not to prevent more tech-savvy users from circumventing the protection and put a copy on the internet to be massively copied later on. Consequently, the FCC does not provide the technical measure for the goal it has set itself. It provides an insufficient threat model that fails to fill the hole in its security regime (see Felten 2003).

b) underestimating the analogue hole: A more infamous hole that undermines the effectiveness of the broadcast flag is the so-called analogue hole. The broadcast flag does not prevent the conversion of the digital signals through analogue outputs (e.g. the analogue video jack of a VCR). Content that is flagged can be recorded in an analogue format of high quality through an analogue output, redigitized and then copied and disseminated. These copies got no flag attached, being lost in the digital-to-analogue conversion, and are subsequently not secured against indiscriminate redistribution via the internet. Consequently broadcasted content may still be downloaded in a lower quality. This will be good enough for most file-sharers, who are more likely to be driven by costless content than the best quality. Efforts to plug the analogue hole, to cut off the stream of digitized analogue signals, have thus far not been successful.

c) underestimating non-flag-compliant digital television receivers: No one can be sure that prohibited devices may still be acquired or even built by users after the implementation of the broadcast flag. The FCC does not think this will influence the security of the regime: "We do not believe, however, that individual acts of circumvention necessarily undermine the value and integrity of an entire content protection system" (see FCC Report 2003, p. 10). It may be right that it is unlikely for an average user to get around the broadcast flag protection and even more unlikely that he will built (or acquire) a device that is able to do so. Nonetheless, the Electronic Frontier Foundation (EFF) has provided instructions on how to build non-flag-compliant digital television receivers (see EFF 2005).

(2) Users’ interests of fair use
The instructions provided by the EFF are meant to enable users to continue their current (fair) uses of digital content in the future: e.g. time-shifting, place-shifting, taking excerpts from clips and integrate them in their own works. However, with the broadcast flag in place these uses are likely to be restricted and made dependent on the authorization of the copyrightholder. Home networks become closed circuits, in which users can only copy and transport content to approved devices that are compliant with the broadcast flag regime. Users will not be able to transmit or play this content on non-compliant devices. Even fair uses, allowed under copyright, might be prevented by the technological protection measures, and become subject to the permission of the copyrightholder beforehand. In that sense the broadcast flag is an exponent and stimulator of the rise of a "permission culture" (see e.g. Lambers 2005). What’s more, the broadcast flag may not only exclude current fair uses, but also those that would be deemed fair in the future. It encodes a restricted copyright of today for tomorrow. At the same time uses currently enjoyed might be coded away in the future.

(3) Innovation
It is important to remember that the broadcast flag is mandated by the FCC. The broadcast flag regime not only dictates that device manufacturers should implement DRMs, but also makes the used DRMs subject to approval. All devices manufactured to receive digital television signals will have to use protection technologies from the so-called A Table. Technologies to be included in this Table, will have to be approved. For now this approval is left to the FCC, but possibly the video content industry will take over this function. Consequently the approval of new information technologies and consumer electronic devices will dependent on the authorization of a (federal) gatekeeper (see Crawford 2004, p. 630).

It is questionable if this gatekeeping will be done in a neutral fashion, but it certainly influences the ability to freely innovate. TiVo, the manufacturer of digital video recorders, found this out last year. When the company had to ask permission to the FCC under the broadcast flag for introducing the option for its users to send their recorded digital television programs over the internet, it got more than a little opposition from the content industry, specifically Motion Picture Association of America (MPAA) (see Pegorano 2004).

The example of the general purpose computer: Computers controlled by end users and the Internet as a decentralised network have been leading forces for creativity and innovation. The broadcast flag might change this. To protect the broadcasting model, control will be embedded in the ends of the internet. General purpose computers able to receive digital television signals and distribute these over the internet fall within the regulative scope of the broadcast flag, the rules of which determine that users should not (be able to) modify their hard- and software. This, for example, conflicts with open source software, which is disseminated under licenses that subscribe to the freedom to tinker: the possibility to change and redistribute the software in order to improve it and learn from the process. This has, amongst others, led to the development of the GNU/Linux operating system. In more general terms, for the first time, some of the openness of the computer platform will be locked down, and with it part of its innovative potential.

Broadcast flag outside the US
The influence of the broadcast flag may reach further than the US. While in Japan a broadcast flag scheme is in place for commercial television, and Canada is watching the developments in its neighbouring country with great interest, more substantial considerations are brought into play on a worldwide level by the so-called Broadcasting Treaty of the World Intellectual Property Organisation (WIPO). Though not proposing a broadcast flag as such, the treaty seeks to consolidate the interests of broadcasters (not copyrightholders) over (the distribution of) their broadcasts, and make it illegal to circumvent technological measures protecting them. The discussion over this treaty has been heated and is ongoing (see IP Watch 2004).

On a European level the broadcast flag approach has not been followed, yet. However, it may serve as an inspiration for regulators. The Motion Picture Association has already proposed the implementation of a protection scheme reminiscent of the broadcast flag (in its comments to the Final Report of the European Commission's High Level Working Group on Digital Rights Management; see Lambers 2004).

If not directly, through a European version, Europe may be influenced indirectly. No European consumer electronic device or information technology that falls within the realm of the broadcast flag may be imported into the US if it does not comply with the regime, while US companies will be allowed to produce non-compliant products for the foreign market (e.g. Europe). Not only may this result in a competitive disadvantage for European manufacturers, it may also lead to a de-facto implementation of the broadcast flag so industry won’t miss out on the US market. However, there is a much bigger market for consumer devices outside the US. European manufacturers, not burdened by a broadcast flag regime in the first place, will be freer to build the products they and especially users want. It may be proven that the market for non-broadcast flag devices is more fruitful and rewarding, now and in the future.

Bottom Line
The fear of content producers of commercial harm by unauthorized redistribution of content they provide may be legitimate. Through the broadcast flag (video) content producers do not only try to protect their content, but also their existing business models. The video content industry has sought to project its incumbent network model on the internet and other developing technologies. Both innovation and user interests may be trampled in the process. Exemplary of this projection is what a representative of Hewlett-Packard had to say over an FCC approved content protection measure, "While developing the Video Content Protection System, we continually kept the perspective of the person sitting in their living room watching TV as a dominant part of the equation" (see PhysOrg 2005). This is the image of the consumer as couch potato, locked-in to his home network, dependent on the will of an incumbent industry, which sets the rules for the future.

However there are no irresistible laws in history. Recently, February 22, the authority of the FCC to mandate the broadcast flag has been challenged in court (see Public Knowledge 2005). If the broadcast flag will actually have to be implemented by the first of July will become clear in the coming months.

Sources

About the author: Rik Lambers is an associate INDICARE team member and wrote the legal chapter of INDICARE's State-of-the-art report. He specialises in internet regulation, freedom of expression and intellectual property law. For the INDICARE project he follows current DRM developments and writes about them at the INDICARE Blog. More of his technology and law related musings can be found at the CoCo weblog (www.lambers.org). Contact: rik@lambers.org.

Status: first posted 24.02.2005; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=77