Federal effort to head off TV piracy challenged

A digital-rights advocacy group is mounting a legal challenge to a new FCC regulation intended to prevent piracy of digitized broadcast.

Mike Godwin, the legal director for Public Knowledge, a digital-rights advocacy group in Washington, is a fan of Showtime's new drama series "Huff." So three weeks ago, when he missed the season finale, he decided to download it to his personal computer.

It took about seven hours to download all 500 megabytes of the hour-long episode over his high-speed Internet connection, using the latest file-sharing software designed to handle large digital files.

Still, he did get it. And he did watch it.

"It's a great show," he said.

To Godwin, the time-consuming download (and the file's poor quality) indicated that the rampant piracy of digitized broadcast programs--a threat Hollywood has long warned against--was hardly imminent. But to the Federal Communications Commission and the Motion Picture Association of America, cases like this one suggest a future of widespread illegal file-sharing that must be stopped before it begins.

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The debate will be presented in oral arguments this week before the District of Columbia Circuit for the United States Court of Appeals in a lawsuit brought by Public Knowledge and others against the FCC, challenging a new regulation that is intended to prevent such bleeding of television content onto the Internet.

"This is about whether the FCC is going to become the Federal Computer Commission and the Federal Copyright Commission," said Gigi B. Sohn, the co-founder and president of Public Knowledge. "The FCC does not have the power to tell technology manufacturers how to build their machines."

All sides agree that the new rule would do just that in attempting to limit unauthorized sharing of digital broadcast content over the Internet. The rule would require that as of July 1, all new consumer electronics equipment capable of receiving over-the-air digital signals--from digital televisions to computers equipped with TV tuner cards--must include technology that will recognize a "broadcast flag."

That flag is simply a marker of sorts, a packet of bits embedded in a digital television broadcast stream that essentially carries the message "this stream is to be protected." In addition to recognizing that message, new equipment must include technology that will prevent the content from being distributed to other devices unless they, too, are flag-compliant.

To the entertainment industry, the rule is a necessary precondition to its participation in the nationwide move toward digital broadcasting that Congress and the FCC have been promoting for nearly 10 years--a transition that would, among other benefits, free up valuable tracts of the electromagnetic spectrum now being used to deliver bulkier analog signals. The MPAA has argued that without the broadcast flag rule, content creators would have no incentive to provide digital content over the airwaves, because people could simply pluck video streams out of the air and redistribute them to millions of viewers over the Internet.

"It's very simple," said Fritz Attaway, a vice president and Washington general counsel for the MPAA. "Without the broadcast flag, high-value content would migrate to where it could be protected."

In practical terms, such "protected" places would be cable and satellite systems where digital content can be more easily scrambled, encrypted or otherwise controlled, leaving broadcast networks at a distinct disadvantage in the new digital marketplace. (About 20 million American households still receive their programming exclusively over the open airwaves, according to Nielsen Media Research.)

But the MPAA's position has also been understood by some to be simpler and starker: if you don't make it safe for us to provide high-value digital content over the public airwaves, we won't.

The transition to all-digital broadcasting is supposed to be completed by the end of 2006, after which the unused parts of the spectrum are to be reclaimed by the federal government. Those frequencies could then be used for, say, public safety communications, or, perhaps more

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