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Another attempt to raise the broadcast flag

The bruised and battered broadcast flag is trying to make another comeback. Members of the House Judiciary Committee are now circulating drafts of three bills that would give federal agencies the ability to write regulations implementing a flag scheme that would restrict the viewing options of television programs, Reuters reported.

Two of the legislative proposals would give authority to the FCC to approve regulations designed to prevent digital broadcasts from being uploaded on the Internet, the report said.

A third would prevent companies from manufacturing, importing or selling devices that convert copy-protected digital broadcast program into an analog program. Converting digital broadcasts into analog broadcasts is known as tapping the analog hole. The Patent and Trademark Office would develop the regulation regarding the analog hole.

Last May, the U.S. Circuit Court of Appeals for the District of Columbia determined that the FCC had exceeded its authority when it approved a broadcast flag regulation. The case — argued by Public Knowledge, a nonprofit organization supporting fair use —contended that the FCC did not have the authority to impose such a restriction. The judges agreed.

The plaintiffs in the case had complained that the FCC requirement would drive up prices of digital television devices and prevent consumers from recording programs in ways permitted under copyright laws. It would permit entertainment companies to designate, or “flag,” programs to prevent viewers from copying shows or distributing them over the Internet.

The FCC argued that was permitted by Congress to make such regulations since it was not explicitly outlawed. Even after the court defeat, the motion picture and television studios have relentlessly pursued the issue in Congress. They have considered plugging the analog hole and installing a broadcast flag critical to the transition to digital TV.

After a House hearing on the issue last week, it was clear legislators have mixed opinions on copy protection legislation.

Rep. Rick Boucher, a Virginia Democrat and one of Congress’ more prominent supporters of “fair use” rights, said he understood the logic behind the flag but feared the current proposals would be unduly restrictive. He said he saw no reason why news and public affairs programs, for instance, needed to be “flagged.”

But Rep. Howard Berman, a high-ranking California Democrat, said he was concerned over “the fact that mass indiscriminate distribution of unauthorized copies is still possible” and said Congress must prevent “abusive use of technology.”

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