NBC inadvertently uses broadcast flag to limit recording

In 2005, the FCC lost its attempt to legislate the use of the broadcast flag, used to prevent the copy of broadcast programming. But don’t tell that to NBC or Microsoft.

Last week, both companies were caught in a controversy that demonstrated how difficult the issue continues to be and how, despite a court ruling against the FCC, the flag continues to be employed behind the scenes.

A proponent of copyright protection, NBC claims it made an “inadvertent mistake” when it was discovered that it used broadcast flag encryption to prevent digital recorders from recording episodes of the network’s “American Gladiators” and “Medium” primetime programs.

Microsoft, which has secretly implemented the copy protection technology in its Windows Media Center DVR, said it was following FCC rules when its system blocked users from recording television broadcasts with a flag.

“Microsoft included technologies in Windows based on rules set forth by the [Federal Communications Commission],” a Microsoft spokeswoman told CNETNews.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.”

In fact, the “rules” Microsoft referred to are not rules at all, but an attempt at implementing them to govern the use of broadcast flags — special code that broadcasters can insert into the data stream of TV shows that are copyright protected.

The courts struck down the FCC’s proposal three years ago, saying it lacked the authority to tell electronics makers how to interpret the signals they receive. However, Microsoft and other manufacturers have retained the option of whether to honor the flags in their recording software, although they are under no legal obligation to do so.

The situation was revealed last week when consumer Justin Sanders was recording Raleigh’s HDTV channel WNCN-DT1 on his Microsoft Vista machine and a pop-up screen appeared, stating, “restrictions set by the broadcaster…prohibit recording of this program.” Sanders took a screen grab to prove what had occurred and put it on the Internet.