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Broadcast flag debate shifts to Capitol Hill

Advocacy groups raise alarm that anticopying measure may surface in a mammoth spending bill before the Senate.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
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Declan McCullagh
2 min read
A high-stakes battle over copy-prevention technology for digital TV may be shifting from the courts to Congress.

Opponents of the so-called broadcast flag, which is intended to tag certain broadcasts as copy-protected, are scrambling to derail a possible committee vote that could take place as early as Tuesday afternoon.

A Senate Appropriations subcommittee is meeting at 11 a.m. PDT on Tuesday to vote on a bill to fund the Federal Communications Commission and many other agencies for the next fiscal year, with a full committee vote scheduled for Thursday at 11 a.m. PDT.

Advocacy groups Public Knowledge and the Electronic Frontier Foundation have asked their supporters to contact senators and say the broadcast flag should not be inserted into the legislation. Librarians and Elgato Systems, which sells HDTV tuners that would be outlawed, joined other groups in signing a letter to senators saying: "The broadcast flag scheme will hurt consumers."

The only problem, though, is that no senator so far has publicly pledged to support the broadcast flag and no amendments have been announced so far. "I do not know of any members who are going to offer the broadcast flag amendment," committee spokeswoman Jenny Manley said Tuesday.

That's fine with Public Knowledge spokesman Art Brodsky, who views the online outcry as something of a prophylactic measure. "If there's a chance this could happen it was a good tactical step for us to take," Brodsky said. "If we succeeded in preventing this from happening, then the effort would not have been wasted."

In November 2003, the FCC voted unanimously to adopt the broadcast flag rule, which required manufacturers of digital TVs and computer HDTV tuners to abide by a complex set of regulations designed to limit Internet redistribution of video clips. Manufacturers that did not comply would be subject to government sanctions.

But a federal appeals court in May tossed out the FCC's rule, saying the agency had exceeded what Congress had permitted. The court did, however, note that Congress had the power to authorize the broadcast flag if it chose.

Since then, politicking over the broadcast flag has shifted to Congress. Motion Picture Association of America chief Dan Glickman said in an opinion article last month that the rule is necessary "to assure a continued supply of high-value programming to off-air digital television consumers," and a copy of draft legislation has surfaced.

Even if the Senate votes to adopt the broadcast flag, its final passage in Congress is uncertain. The appropriations bill already approved by the House of Representatives includes no such requirement; key House members such as Commerce Committee Chairman Joe Barton, R-Texas, have been skeptical; and a Congressional Research Service report worries about the broadcast flag's impact on "fair use" rights.