Internet and Governance -- Looking Over the Week

Yesterday, the House Judiciary subcommittee held a hearing on "Content Protection in the Digital Age: The Broadcast Flag, High-Definition Radio, and the Analog Hole. " Wendy Seltzer, Berkman fellow and ChillingEffects founder, listened to the hearing and relayed to us what's going on.  See below.  Also, Sam Hiser blogged highlights of last week's Berkman-hosted roundtable discussion on the recent decision by the Commonwealth of Massachusetts to procure technologies that are compatible with the Open Document Format.

Question:  What's at stake in this hearing? Why is it important?
Wendy:  Without sounding too grandiose, what's at stake is the future of innovation in media technologies by the public and the technology companies that serve them.  These bills -- a proposed reinstatement of the Broadcast Flag, another to "close the analog hole" by restricting all video digitizers, and a third to add recording restrictions to digitally broadcast radio -- say that audio and video technologies should be illegal unless they get prior government approval.  The MPAA and RIAA, testifying in support of the bills, want to restrict what we can do with our TVs and radios, often beyond the bounds of copyright law.  To enforce those restrictions, bills would limit our ability to design our own devices for watching TV or listening to music.

I've been particularly disturbed by the impact that a technology mandate would have on hobbyists and tinkerers.  Right now, I can (and have) built an open-source personal video recorder -- imagine a TiVo on steroids -- to record and playback HDTV.  I'm not redistributing television indiscriminately over the Internet, I just like being able to pause live TV or move recorded shows to my Treo to watch at the gym.  If the broadcast flag were implemented, I wouldn't be able to buy replacement parts for that machine; even those building commercial TiVos would need to impose government-approved restrictions.

Question:  What do you make of yesterday's hearing?
Wendy:  We heard a variety of opinions from the Representatives who gave comments or asked questions of the witnesses.  (Dan Glickman (MPAA) and Mitch Bainwol (RIAA) testified in favor of the restrictions, while Gigi Sohn (Public Knowledge) and Michael Petricone (Consumer Electronics Association) testified against.)   While Chair Lamar Smith and Ranking Member Howard Berman both sounded supportive of legislation, Reps. Rick Boucher and Zoe Lofgren cautioned that government mandates could stifle fair use and slow technology development.

Rep. Boucher referred to his proposed HR 1201, saying the broadcast flag should be looked at " in the broader context of assuring the provision of fair use rights for the purchasers of digital media."  In a broadcast flag regime, by contrast, he said he would be unable to send a clip of a television appearance to his mother (who does use email, he assured the committee) or to have staffers send him clips of an opponent's political advertisements.  Rep. Lofgren also spoke of the importance of preserving  consumers' rights to fair and non-infringing uses of media.

Question:  Why is the House turning to this issue now?
Wendy:  We successfully defeated the first broadcast flag in court, getting a ruling from the D.C. Circuit that the FCC had no jurisdiction to regulate what happened inside users' TVs.  Entertainment lobbyists have been asking Congress to give the FCC that authority, and are tying their request to the ongoing transition to digital broadcasting.  Their threats to withhold content ring hollow, however, considering that they're already making a huge amount of content available for HDTV broadcast without any Flag Rule.