NBC, Microsoft Raise The ‘Broadcast Flag’

(click thumbnail)NBC used the broadcast flag to prohibit recording shows like “American Gladiators.”In a remarkable case of viewer “gotcha,” NBC and Microsoft were recently caught red-handed playing footloose with the broadcast flag. The whole episode demonstrated clearly why major media companies should never be trusted and must always be regulated, especially when using digital technology.

In case you need a reminder, the broadcast flag itself is a set of status bits that broadcasters can insert into the datastream of TV shows that place restrictions on the recording of the shows.

Those restrictions include the inability to save an unencrypted digital program to a hard disk or other nonvolatile storage, inability to make secondary copies of recorded content (in order to share or archive), forceful reduction of quality when recording (such as reducing HD video to the resolution of standard TVs), and inability to skip over commercials.


A broader use of the term “flag” goes back to proposals made by the FCC earlier this decade. The commission wanted companies that made software and hardware equipment for television to honor the flag. However, the courts ruled against the FCC’s plan in 2005, saying the regulator couldn’t force electronics makers to interpret TV signals a certain way.

Since then, those software and hardware companies have had the option of deciding whether to design their systems to obey the broadcaster’s flags. Since the issue fell from the headlines after the 2005 court ruling, most thought it dead and forgotten.

Not NBC and Microsoft. NBC used the flag to prohibit recording of shows such as “American Gladiators” and “Medium.” Microsoft honored it—without telling buyers—in its Windows Media Center recording system.

Microsoft has a lot of users, by the way. More than 140 million copies of the Vista operating system have been sold, Microsoft said last month. Both Vista Home Premium and Vista Ultimate contain Media Center, although a tuner is needed to record from a television set.

Both companies were caught when a viewer, Justin Sanders, tried to make a recording on his Window’s Vista machine from Raleigh’s HDTV channel, WNCN-DT1. A popup came on, claiming that “restrictions set by the broadcaster...prohibit recording of this program.” Sanders released the image of the popup on the Internet. Others also reported the same situation.


NBC hemmed and hawed at first, finally saying it was an “inadvertent mistake” that the broadcast flag had been employed. Sure it was! But, it was Microsoft’s explanation that takes the cake.

Arguing that it was following “FCC rules,” Microsoft acknowledged that its Windows Media Center system will block users from recording television broadcasts with a flag. “Microsoft included technologies in Windows based on rules set forth by the FCC,” a Microsoft spokeswoman told CNET News.com. “As part of these regulations, Windows Media Center fully adheres to the flags used by broadcasters and content owners to determine how their content is distributed and consumed.”

What’s wrong with this picture? First of all, Microsoft’s PR flack didn’t even know that there is no FCC rule preventing use of the flag. Apparently, the court ruling was out of sight, out of mind. A remarkable faux pas in itself!

But somebody at Microsoft obviously knew the software was honoring the wishes of content creators and owners. It had to be designed into Windows Media Center and activated.

Was the software company so supplicate to the wishes of program creators that it went ahead and implemented the flag protection anyway, without telling its own customers? It certainly looks that way. It’s only amazing that it took so long for end users to discover what Microsoft was up to.


So far, it is not clear if Microsoft is the only video recording vendor to secretly deploy the flag. “I’m not aware of any effort by the industry to prevent people from recording their shows,” Jim Denney, TiVo’s vice president of product marketing, told CNET.

No, this act is not illegal—software makers can implement any “features” they please in their software. But it is unethical.

The problem is that American television viewers have fair use rights to record television content over the air. That was granted us by the U.S. Supreme Court in the infamous Betamax case. It is the media companies who have long lobbied against those rights, constantly attempting to take them away in the digital era.

NBC and Microsoft have been among the strongest advocates to protect the rights of copyright owners. NBC broke with Apple’s iTunes, at least partially over Apple’s supposedly weak copy protection. Led by Jeff Zucker, NBC Universal’s president, the company has been on a copyright tear lately. That’s why few believe the “inadvertent mistake” story.


Microsoft has repeatedly showed it is more a friend of the content provider than the consumer. Unless it was a horrible accident, this mistake is proof. To not even tell users of this limitation in its software is unforgivable. It is past time for Microsoft to come clean.

“The important thing to remember,” Danny O’Brien, a staffer at the Electronic Frontier Foundation, told CNET, “is that digital-TV viewers must not lose any of the rights they owned as analog users.

“Microsoft has put the requirements of broadcasters above what consumers want,” O’Brien said. “They’ve imposed restrictions way beyond what the law requires. Customers need to know who Microsoft is listening to and how that affects their equipment. Right now, the only way customers know what Microsoft has agreed to is when the technology they’ve bought suddenly stops working. Microsoft needs to come clean and tell its customers what deals it has made.”

This whole sorry episode underlines why American citizens need protectors of their lawful interests in the digital era. The FCC has failed miserably. All we have are some excellent consumer advocates and individuals who use the Internet to expose the corporate misfits.

It’s a dog-eat-dog digital world. Chalk up one win for the little guy.

Frank Beacham

Frank Beacham is an independent writer based in New York.