From October 4, 2004 until March 15, 2005, courts heard the arguments of the American Library Association (ALA) versus the Federal Communications Commission (FCC). The FCC hoped to pass a piece of legislation to have a broadcast flag placed in every digital television. These flags would signal that the taped program or a DVD being watched on a certain digital device was not legally copied. Flags would thus “not record or output an unencrypted high-def digital signal if the flag were set.” This may be a good idea in theory, indicating and preventing the viewing of not copyright, illegal materials. However, the court decided that “the FCC lacked [the] authority to regulate what happens inside your TV or computer once it has received a broadcast signal.” Upon the court’s decision, the FCC jumpstarted their latest endeavor of fighting to have legislation passed to give them the authority to regulate the digital television broadcast signal.
This original documentation gives insight that is otherwise excluded in summaries of the trial. The first-hand accounts give readers an opportunity to get the full effect of both sides of the argument. Though the FCC is adamant about implementing broadcast flags, it doesn’t seem to be in the public’s best interest to do so. “During the development of the broadcast flag, both before and after it was submitted to the FCC, the concerns of smaller innovators, libraries, archives, consumer groups and open source developers were ignored.” If either legislation is put into effect, not only will television be completely changed, but copyright laws will need to be updated in order to support this new technological development.
The Federal Communications Commission (FCC) petitioned to have “broadcast flags” placed in “all devices and receivers that are capable of receiving digital content. Such devices include, but are not limited to: televisions, computers, digital video-recorders (such as TiVo), and DVD players.” These flags are “a combination of technical specifications and federal regulations designed to combat unauthorized redistribution of content broadcast through digital television (DTV) signals.” Though the broadcast flags cannot prevent illegal distribution, they can stop consumers who purchase illegal copies from actually viewing the television show or movie that has been copied. However, individuals with older versions of specific devices “will still be able to receive and copy television programs in non-digital form.” Only devices and receivers that have transferred from analog to digital are capable of being flagged. The FCC made it clear that the institution of broadcast flags would not affect the current copyright law. Instead, officials “established [the flags as] a ‘technical protection measure’ that did not change the underlying ‘rights and remedies available to copyright holders.’” In the FCC’s official case against the American Library Association (ALA), the FCC was found to not have the power to implement broadcast flags in each individually owned device or receiver. Though this was the court’s decision, this judgment “did not address the imposition of the broadcast flag requirements in terms of copyright law.”
Though the broadcast flags would help stop viewers from watching illegal material, it would not prevent the production and distribution of television shows illegal put onto DVD. So while the FCC is trying to implement laws trying to “protect digital content,” pirates continue to mass-produce their goods. Television shows are still being illegally put onto DVDs, and others are still finding ways of watching classic, cancelled, or syndicated television shows in their original formats without paying for a DVD box set. While, the FCC had good intentions, they should instead focus their fight to the enforcement of copyright laws and try to be one step ahead of the pirates involved in reproducing television series.