Flag ruling leaves implementation open
WASHINGTON
The FCC ordered the bits to hit the stream with its broadcast flag ruling, but left the electronics community 18 months to figure out how to make them protect DTV content.
That will be a tall order, said Thomas Patton, vice president of government relations for Philips.
"They want a content protection regime in place by July 1, 2005," he said. "It will be a very hard challenge for the FCC, to examine and possibly select technologies that actually meet the objectives-to stop free [mass] Internet distribution and not interfere with fair-use rights."
In a unanimous vote with partial dissents from both Democrats, the FCC ordered that all digital OTA receivers recognize the broadcast flag by July 1, 2005. In written comments, the agency stressed that the flag would not force consumers to buy new equipment, nor would it restrict copying, but that it sought "only to prevent mass distribution over the Internet."
Whether or not the order does any of those things at all is still up for debate. From a technical standpoint, the ruling does not address the "analog hole." Because the flag is simply the addition of bits in the DTV stream, it has no effect on analog outputs, through which high-definition programming could still be recorded, redigitized and distributed via the Internet. In acknowledging the analog hole, Commissioner Kathleen Abernathy allowed that "there's still a lot of work to do" to realize the FCC's goal.
From a legal perspective, Washington, D.C. attorney Ethan Ackerman argued that the ruling could indeed restrict copying and affect legacy devices.
"The order basically only allows flagged content to be copied or transmitted to devices that have 'approved copy protection,'" he wrote in an analysis of the ruling. "The FCC technically might not be preventing consumers from making digital copies, but they are requiring adoption of a technology that is inherently designed to restrict or prevent consumer copying."
Ackerman went on to say that while standalone TiVos and DVD players are not directly affected by the ruling, they may not be compatible with new "FCC-governed" DTV sets.
Scott Sutherland, a spokesman for TiVo, said the company would be paying close attention to how the flag unfurls.
The original broadcast flag proposal included the "5C" content protection scheme-developed by Sony, Intel, Hitachi, Matsushita and Toshiba-that would have blocked all IP distribution of flagged content. Philips objected on the grounds that it stifled innovation.
Instead of adopting 5C alongside the flag, the FCC set up a process to review and certify various protection schemes. Patton said Philips was pleased with the FCC's decision to consider multiple technologies.
"It addresses the most serious concerns we had about the proposal," he said, although he also allowed that the 5C companies have a significant head start. The question remaining is whether or not the 5C scheme infringes on fair use, he said.
The CEA also welcomed the review process as well as the 18-month time frame, for which the organization rallied in response to Hollywood's push for a July 1, 2004 deadline.
A significant part of the burden for making the flag work will fall on the computer industry, whose devices make up the gateway to the Internet. Like Philips, the computer industry was relieved to see that the order didn't contain specific technology dictates, said Jim Burger, an attorney for the IT Coalition, a computer and software maker consortium.
Others in the computer industry noted that the order could demolish the TV tuner card business. By the deadline, DTV tuner cards in computers have to reduce high-definition images to 480p for output, and the necessary re-engineering costs would be prohibitive, sources said.
FCC Chairman Michael Powell said the order was "an important step toward preserving the viability of free over-the-air television." The move was lauded by the typically three feuding chiefs of the cable, broadcast and consumer electronic lobbies, by Motion Picture Association of America chief and flag-bearer, Jack Valenti, and by Rep. Billy Tauzin (R-La.), considered most likely to replace the aging Valenti, should he ever retire.
Lawmakers on Capitol Hill generally supported some kind of content protection, although some did raise questions about the FCC's jurisdictional authority to decide what it should be.
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