Raising a Broadcast Flag With the FCC

The FCC has mandated that all television stations be capable of broadcasting HDTV by 2006, but that isn't the date that the Electronic Frontier Foundation is counting down to. Instead, it's July 1, 2005—the day that the FCC's broadcast flag mandate takes effect.

Broadcast flags are designed to be a form of digital rights management (DRM) for HDTV programs: a bit-sized file is sent along with an HDTV transmission that prohibits HD digital video from being transmitted and/or recorded onto devices that don't comply with the broadcast flag mandate. But, "the only way they can make that flag mean ‘do not distribute' is by putting a technology mandate on all HDTV receivers," says Wendy Seltzer, staff attorney at the EFF, which is exactly what the July 1, 2005 FCC broadcast flag mandate requires. After the first of July, all HDTV tuner cards must be manufactured to include the broadcast flag.

"Our concern with the broadcast flag is that this represents protecting copyright by regulating technology, by limiting technology, by making manufacturers petition the government for approval for devices that may not infringe on copyrights," says Seltzer. "Historically, Sony was able to create the VCR without asking anyone's permission to do so, same with TiVo." The EFF fears that the broadcast flag mandate could limit technological innovation once it has been implemented. "This is totally alien to the way technology has been developed in the past," explains Seltzer.

Which is why the EFF has started the Digital Front of Television Liberation (www.eff.org/broadcastflag/), a series of Web pages filled with resources devoted to encouraging users to build their own personal video recorders (PVR) with HDTV tuner cards before the broadcast flag deadline. These machines will still work once the broadcast flag is in place, but after the deadline you won't be able to purchase HDTV tuner cards without the broadcast flag built in. Through this initiative, the EFF hopes to "create benchmark machines so that we'll have some devices to compare against what comes out of the FCC approval process," says Seltzer.

A prime example of the EFF's objectives is offered by MythTV.org, which, according to the site,"is a homebrew PVR project" developed by Isaac Richards. While Richards only offers the PVR software, what he's done with it could provide a glimpse into the future of TV/PC convergence. The main MythTV program mimics the basic functionality of a PVR; it's when you get into the add-on modules that it gets interesting. There's MythWeb, a Web interface to MythTV; MythWeather, a module that displays your weather forecast; MythNews, an RSS feed news reader; and many more.

Open-source projects like Richards' MythTV face an uphill battle after the implementation of the broadcast flag. As the EFF's Web site puts it, "Devices must be ‘robust' against user access or modifications that permit access to the full digital stream. Since open-source drivers are by design user-modifiable, a PC tuner card with open-source drivers would not be ‘robust'…The rules mean that open-source developers and hobbyists will be shut out of the HDTV loop altogether."

But the EFF's efforts to stop the upcoming broadcast flag mandate don't begin and end with the Liberation Front of Digital Television. "We've taken other steps like suing the FCC in federal court," says Seltzer, "saying that the broadcast flag is outside of their mandate." The EFF, which fights for technological freedom on many fronts, will continue to pursue this issue for one very important reason. "We're going after this because it's likely to set a precedent in the way the government can regulate technology," says Seltzer. "We want to show how this mandate is harmful, hopefully stopping technology mandates from being imposed elsewhere."

In the meantime, the quantitative effect that this initiative might have will most likely be relegated to techie types for the near future. To build an HDTV PVR of your own, "it still requires being comfortable assembling a machine or at least putting a card in a machine," explains Seltzer, "and going down to a Linux command line and installing a few packages." To simplify the process of putting together a machine, the EFF hopes to "help the MythTV project work seamlessly with the pcHDTV card so less technical users can beat the broadcast flag," according to their Web site.

It should be noted that the broadcast flag mandate only applies to over-the-air broadcasts; satellite and cable broadcasts will have a different way of addressing this issue. Nothing's been decided yet, but once it has, it should be easy for cable and satellite broadcasters to secure their signals as most digital television services already require proprietary set-top boxes. Cable and satellite providers can simply manufacture the boxes to fit whatever DRM framework is decided upon in the future.

Since we're still a few years away from ultrabroadband Internet connectivity, the question of how the broadcast flag model might influence future DRM solutions for IP-based HD video distribution has yet to be answered. That said, in the eyes of the EFF, technology mandates are never the answer.
(www.eff.org/broadcastflag; www.mythtv.org)