One of the memes repeated over and over again at the House Energy and Commerce broadcast flag hearing two weeks ago was that the audio broadcast flag is much different (read: worse) than the video version. This argument is made largely to explain why the consumer electronics, software and broadcast industries are neutral or support the video flag, while they vehemently oppose the audio flag.
Yes, there are some superficial distinctions between the two, but they are distinctions without a difference. Here are the justfications most often given for distinguishing the two flags:
The video flag was developed by “consensus.” This one either makes me laugh out loud or furious. First, there was significant disagreement on a number of issues surrounding the flag when it was proposed to the Copy Protection Technical Working Group, including whether it would be effective, whether it would have adverse consequences for consumers, and how specifically to enforce the “compliance and robustness” rules. Second, CE, software and other companies heartily opposed the flag scheme at the FCC, as, did, by the way, every consumer group working on this issue (we don't usually count when determining whether there is a consensus, it seems). In fact, PK's filings in the broadcast flag court case were largely cribbed from Philips Electronics' FCC filings. But Hollywood's relentless pressure has paid off, and those companies who opposed the flag are either grudgingly supporting it, or neutral.
The audio flag scheme would prohibit personal copying, while the video flag scheme only prohibits “mass, indiscriminate redistribution” over the Internet. It is true that if you have the right equipment you should still be able to make personal copies with the video flag. (Remember, some old devices may not work with flag-compliant devices, and once you buy one brand of flag-compliant device, you must buy the same brand for all downstream devices). However, regardless of what the FCC claims that the broadcast flag scheme prohibits, all but one of the broadcast flag technologies approved by the FCC prohibit all Internet redistribution, not just “mass, indiscriminate” redistribution. So if I want to email a copy of my appearance on the local news to my mother, the flag prohibits me from doing so. Essentially, the video flag permits me to retain my fair use rights circa 1992. Not a significant improvement over the audio flag, if you ask me.
The video flag scheme has been vetted and debated, the audio flag scheme has not. It is true, and not insignificant, that unlike the video flag technology, no audio flag technology exists, although that certainly does not make the video flag scheme better policy. But it would be hard to argue that the concept of copy protection for digital and satellite radio has not been publicly debated. The FCC put the issue of broadcast radio content protection out for public comment, and Congress has had at least three hearings on various radio content protection proposals in this Congress. So the merits of radio content protection, whatever it might look like, has been and still is, being vigorously debated.
Regardless of these distinctions, what the flag schemes have in common should alarm anyone wants to promote innovation and competition. Both flag schemes would put the Federal Communications Commission in the position of technology gatekeeper – determining what devices can and cannot come to market. This determination of course, would be made under great pressure from the powerful and persistent content industry to limit approvals to only those technologies with which they approve. This alone, should be enough reason for technology companies to oppose both flag schemes.
So why are broadcasters, CE companies and software companies either supporting or neutral about the video flag yet opposed to the audio flag? It all comes down to politics, of course. Local broadcasters are not affected by the flag one way or another, but their Disney, Fox, Viacom & Universal-NBC brethren have put the thumbscrews to the National Association of Broadcasters (NAB) to support it. Some of the Hollywood studios, which also own broadcast stations, have quit the NAB before over media ownership battles, and one can only guess that their continued membership is contingent on NAB support of the video flag.
Several CE companies, including the aforementioned Philips have decided it is better to join 'em than beat 'em. Having bet wrongly that we would lose our court case, Philips and some others have started to manufacture flag compliant devices, and don't want competition from more consumer-friendly non-compliant devices. And the support of companies like Philips hamstrings trade groups like the Consumer Electronics Association from taking a position.
Tactically, I think it is a grave mistake to try and distinguish the two, since they are, at their core, exactly the same – ways for the content industry to have veto power over new devices. Even if the video flag somehow makes it into law without the audio flag (unlikely given Senator Frist's desire to help his former chief of staff, RIAA CEO Mitch Bainwol), cries of “regulatory parity” will be heard from the RIAA's corner. And that is an argument that is likely to carry a great deal of weight at the FCC and elsewhere.