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05.18.2005
Originally featured on BroadcastEngineering.com
Fair use concept splits content providers and users

The concept of fair use has been around since the inception of copyright. That was long before digital file sharing or even the photocopier. The potential misappropriation of high-definition content has led U.S. broadcasters to propose that receiver manufacturers must include technology to read a broadcast anti-copy flag and disallow the unauthorized copying of the flagged programs. The FCC backed this up with a mandate on equipment manufacturers capable of demodulating the DTV signal to incorporate the technology.

The U.S. Court of Appeals in Washington recently ruled that the FCC overstepped its authority when it required digital TV receiver manufacturers to include broadcast flag technology. The petitioners in the appeal, a group representing the fair use argument, included the American Library Association and advocacy group Public Knowledge. The respondents were the FCC with the Motion Picture Association of America (MPAA) acting as interveners. The ruling raises a number of problems. Will Hollywood studios make HD content available for broadcast if it can easily be pirated?

Technologists can provide the means to protect content, but ultimately the adoption relies upon a legal framework. Although the appeal judgement focused more upon the FCC's mandate, the core issue here is fair use.

Technology has delivered the means to clone content. It has also delivered the means to encrypt content and to control access through a set of business rules. The terms and conditions of those business rules have to comply with the law. As broadcast engineers, implementing the transmission of the flag is no big deal. The issues around the flag impact legislators and content owners more. A period of uncertainty in this area will most likely affect the consumer. High value content could be limited to distribution over subscription services.

It may well be that the concept of fair use needs to be adapted to the new digital world.

To read the judgement, visit http://pacer.cadc.uscourts.gov/docs/common/opinions/200505/04-1037b.pdf.

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