The “broadcast flag” is a federally mandated digital copy protection scheme, which the government claims is intended to prevent the “mass indiscriminate” copying of digital broadcast television over the Internet. If enacted, it would require consumer electronics manufacturers to develop technologies to respond to a series of bits embedded in the digital broadcast television signal. However, because the broadcast flag technologies cannot differentiate between large and small-scale redistribution, these rules would still affect small scale, discriminate uses. In particular, a broadcast flag mandate would severely limit the practice of distance education.
In American Library Association v. Federal Communications Commission (“FCC”), the United States Court of Appeals for the District of Columbia Circuit struck down the FCC’s broadcast flag rules, and at the same time recognized that a broadcast flag mandate would likely harm distance education. For example, distance educators often use clips of broadcast programming as an educational tool for online classroom instruction. Indeed, in 2002 under the “Technology, Education, and Copyright Harmonization Act of 2002” (“TEACH” Act), Congress expressly allowed the use of these copyrighted clips for online classes. However, a broadcast flag regime could make the use of these clips impossible.
Here are some of the ways a broadcast flag regime could have an adverse impact on distance education:
Educators would be prevented from emailing broadcast television clips to students. As mentioned above, short clips of broadcast television are often used in distance education classes. If broadcast content were flagged so that the clips could not be recorded, then an educator would be unable to send these clips to her students.
Libraries would be prevented from making broadcast clips available over the Internet. Instead of emailing clips of broadcast programming to their students, distance educators sometimes direct them to clips made available over the Internet by the school library. However, the broadcast flag regime could prevent libraries from storing these clips for student or other uses.
Costly equipment would have to be replaced. While it is true that a broadcast flag regime might not require replacement of older devices that are not broadcast flag compliant, once a new, broadcast compliant device is introduced into the technology chain, it would require the replacement of all non-compliant devices just to “talk” to the compliant device. This is because compliant devices are designed to be incompatible with non-compliant devices; for example, restricted content recorded onto compliant devices may not be transferable and playable on non-compliant devices. Thus, educators would have to choose to use non-compliant devices only or compliant devices only. Since it is highly likely that some devices will have to be replaced in the future, the broadcast flag is a measure that could be very costly to distance educators.
Incompatibility problems might also affect students. In addition to educators, students might also be affected by the fact that broadcast flag compliant and non-compliant devices will not be interoperable. For example, a librarian might assist an educator in recording a broadcast show using a broadcast flag compliant device. If the student uses a non-compliant device, she will be unable to watch the original clip.
Educators might have to give up desirable features of non-compliant devices. Educators may wish to use devices that have flexible features but are not broadcast flag-compliant. In order to view content, they may be forced to use compliant devices and in the process sacrifice desirable features not found in, or usable with, compliant devices. For example, educators may not be able to use open source software, which is usually free or at least cheaper than the alternatives (as well as having numerous desirable add-ons), because it is unlikely to be compliant.
The broadcast flag rules, if reinstated by Congress, will harm distance educators and their students. In addition to increasing equipment costs, the broadcast flag scheme will prevent the lawful uses of broadcast television content that we know today — uses that are critical to distance education, to the dissemination of knowledge, and to our democracy.
