So, now that the House passed its version of the telecommunications bill, the focus now turns to the Senate, and more specifically, the Senate Committee on Commerce. The other day, the Chairman of the committee, Senator Stevens, dropped his version of telecom reform. It covers everything but the kitchen sink. It's currently being discussed at a hearing right now.
read more after the break…
Art will talk more later about the net neutrality aspect of the bill, but it essentially requires the FCC to conduct a study on the issue. Nothing more.
I quickly wanted to touch on the copy protection flags (broadcast video flag and radio flag), yes, they're back. This time, they're imported from S. 2686, the Inouye/Democrat version of the telecom bill, which we talked about before. It reinstates the FCC's previous version of the broadcast flag, except it says that the FCC can amend it in any way it sees fit–meaning it could throw out the 13 approved technologies, it could allow the MPAA a greater say in the approval process (as was originally contemplated), and it could again say that it doesn't have to permit fair use.
On the topic of fair use, the bill says that it should be read to require the FCC to
(A) limit the Commission's authority to ap-prove digital output protection technologies and recording methods that allow for the redistribution of digital broadcast content within the home or similar environment, or the use of the Internet to transmit digital broadcast content, where such technologies and recording methods adequately protect such content from indiscriminate redistribution;
(B) be construed to affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under title 17, United States Code.
Two things to note–in A, Congress is mandating the use of DRM. In B, it's seemingly giving a nod to fair use, however, it's done in the same way as it was under the DMCA. Meaning, the bill ignores fair use. The bill says that the FCC's regulation won't affect fair use rights–well, it won't. Those fair use limitations still exist under the copyright law–but as we know well, DRM legally trumps fair use thanks to the DMCA. There's also the question of how “or” will be read–is it possible that if the limitation under A is met, that B could be ignored?
It pretends to prevent the flag recording/copying function from being used for “news and public affairs programming the primary commercial value of which depends on timeliness,” however, it leaves it up to the broadcasters to decide what falls into that limitation. We've heard before that the folks at NBC don't want news programs like their Sunday morning's Meet the Press to be recorded, as they may want to sell the content on some sort of “best-of” DVD. They'd use the broadcast flag to “protect” their content when broadcast over television, by claiming it doesn't fall into the “timeliness” limitation.
What's also interesting is that the section in the legislation where audio flag should be, is an “under construction” notice:
SEC. 453. PROTECTION OF DIGITAL AUDIO BROADCASTING
[TO BE SUPPLIED]
I wonder who's doing the construction?