Prof. Edward Felten is a long-time proponent of free expression and was represented by EFF in the Felten v. RIAA case, protecting the right to publish scientific research.

Felten is writing a book on the freedom to tinker, and also maintains a news site at freedom-to-tinker.com with updates on tinkering and reverse engineering.

This week, Felten points out that the so-called "broadcast flag" controversy is not really about the broadcast flag, but about banning technology.

Technologists normally use the term "flag" to refer to a simple label that is attached to data to indicate some attribute of the data. A recipient of the data can use the flag as one factor in deciding what to do with the data, but most flags are strictly advisory and do not compel any action by the recipient. Such a flag is simple and nonrestrictive. Who could object to it?

Hollywood doesn't need to ask for a true broadcast flag. The standards for digital television broadcasting already have a place for such a flag. No government action is needed to allow Hollywood to use a flag to indicate the broadcast status of a program.

This simple issue of terminology is significant. Reporters frequently ask us whether we support or oppose the broadcast flag. Of course, we don't support or oppose the broadcast flag itself. What we oppose is making it a crime to produce certain kinds of general-purpose video technology.

Audiorevolution.com reports that CBS will offer the majority of its prime time schedule in high-definition.

The 2002/2003 television season marks the fourth consecutive year CBS has broadcast the majority of its primetime schedule in HD, and the second season that it has offered all of its scripted entertainment series in the HD digital format.

Eighty-three of CBS' owned and affiliated stations are currently broadcasting in digital, covering reportedly 72 percent of the nation. By the end of 2002, CBS expects to be transmitting digital programming across more than 100 owned and affiliated stations, reaching over 83 percent of the country.

And all without a broadcast flag mandate!

The European Community last year proposed to the World Intellectual Property Organization a new treaty "on the protection of the rights of broadcasting organizations" (see draft treaty text). This treaty would require national law to grant to broadcasters

• "the exclusive right to authorise or prohibit the fixation of their broadcasts";
• "the exclusive right to authorise or prohibit the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts";
• "the exclusive right to authorise or prohibit the retransmission, by wire or wireless means, whether simultaneous or based on fixations, of their broadcasts";
• and other rights, including the rights to control the exhibition and distribution of fixations (recordings) of broadcasts.

In addition, signatories to this treaty would be expected "to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by broadcasting organisations" to secure these new rights.

This treaty would undermine many of the public's rights under the copyright laws of most countries in the world. In the U.S., for example, it would eliminate the public's rights, established by law since 1984 (though already somewhat curtailed by legislation), to make recordings of broadcasts without the permission of a broadcaster. Indeed, the treaty text is a direct attack on home recording and the public's rights in recordings of broadcast programming.

The broadcast flag, currently a somewhat exotic regulatory proposal in the U.S., would be the norm in all countries which adopted this treaty, and they would be required by law to prevent "circumvention" of broadcast flag-like measures. (Some countries have already established, in principle, a right to prevent home recording. The U.S. very definitely has not done so.)

So far, this treaty has not been adopted by WIPO. The E.C. web site says that this treaty will be considered again by WIPO at its General Assembly in September of this year.

The Federal Communications Commission (FCC) today issued a notice of proposed rulemaking (NPRM) "In the Matter of Digital Broadcast Copy Protection" (Media Bureau Docket No. 02-230).

The NPRM seeks public comment on a variety of issues related to the broadcast flag proposals, including whether the broadcast flag is necessary, whether it would be effective, whether the Commission should mandate it, and what effects it would have on various parties. EFF is preparing comments, and other parties should do so as well.

We will probably publish some advice here on "How to Comment to the FCC".

Parties who are interested in co-ordinating their comments with our own are welcome to contact us.

Comments will be due on October 30 and reply comments will be due on December 13.

At the same Commission hearing at which the FCC's broadcast flag NPRM was announced, the Commissioners also decided to implement a "digital tuner mandate", requiring TV manufacturers to include ATSC tuners in their TV sets.

This controversial regulation means that it will soon be difficult to purchase a television without ATSC support.

The digital tuner mandate is distinct from the broadcast flag mandate proposal. However, the BPDG proposal and related policy advocacy by BPDG participants suggest that "Compliance and Robustness Rules" (in practice preventing, for example, consumers from repairing or upgrading their own equipment) ought to be applied by law to any device containing an ATSC tuner.

Today's FCC action means that "any device containing an ATSC tuner" could soon include "all television sets manufactured in the U.S." -- making the impact of a possible broadcast flag mandate that much greater. If both mandates are implemented, it would be difficult to purchase a TV in the United States without legally-mandated "tamper-resistance" measures. Therefore, the stakes in the broadcast flag mandate debate have been increased significantly.

(The tuner mandate applies only to sets above a certain size, although, in earlier instances, such rules set the stage for an industry-wide redesign of all TV products.)

Included below is a press release from CDT, Consumers Union, and Public Knowledge, on their call for the FCC to consider the impact of a broadcast flag mandate on consumers. The press release makes reference to the same groups' July questions on the BPDG rules' impact and effectiveness, which were developed in consultation with EFF and a variety of technical experts.

The EFF, in a letter Wednesday to FCC Chairman Michael Powell, criticized the broadcast flag proposal. The letter advised the Chairman of some of the risks associated with that proposal, and asked the Chairman not to adopt a broadcast flag mandate.

The Federal Communications Commission decided at its meeting in Washington today to issue a Notice of Proposed Rulemaking on the broadcast flag. Public comments will be due by September 30.

We will provide the text of the NPRM as soon as it's available.

The Federal Communications Commission will consider, on August 8, a Notice of Proposed Rulemaking which appears to relate to the broadcast flag in some way.