Gigi B. Sohn, president of Public Knowledge, urged Congress not to limit consumer choice or hamper innovation by enacting legislation allowing the Federal Communications Commission (FCC) to implement content controls on digital TV and radio.
In a written statement to be submitted for the record of the Senate Commerce Committee hearing on the “broadcast and audio flag,” Sohn said that new technologies are being developed all the time to give consumers more choice in viewing TV and listening to music. The “broadcast flag” is a bit of coded instruction in over-the-air digital TV signals that determine whether the content can be storied, copied or forwarded, and under what conditions. The “audio flag” would be as-yet-undetermined content controls on digital audio radio, including satellite radio.
Many new technologies and devices were introduced or on display at the recent Consumer Electronics Show. Sohn said in her statement: “Yet even as innovators in the content industry promote these alternative distribution technologies, the very same content industry wants Congress to step in and give it protection from the vague threat of massive copyright infringement the industry says these new technologies could facilitate. Let us be clear. The content industry has not shown that any infringement has resulted from these technologies. And they certainly have not shown that government technology mandates will work to stop actual copyright pirates rather than prevent ordinary consumers from engaging in lawful activities.”
In addition, Sohn said, “The message of the Consumer Electronics Show is clear. The market for delivering content digitally over new technologies is working. Consumers can watch and listen to the content they purchase anytime and anywhere they want. Some of that content will be protected, and consumers can decide whether that protection is flexible enough. All of these great developments happened without government intervention.”
Here is the introductory part of the statement:
“This hearing could not be more timely. Many of you and your staff members just returned from the International Consumer Electronics Show, an event that featured an amazing display of new innovative technologies and newly forged partnerships between technology and content companies. Here are just a few examples:
Microsoft demonstrated new versions of its software that enables the playback of a consumer's favorite media, whether on the person's home office monitor, living room television, or PDA. The company has also developed a new music service in conjunction with MTV, VH1, and CMT music channels.
Innovators like DigitalDeck, NewSoft, SlingMedia, and Sony each have developed competing technologies that allow consumers to remotely watch the television playing in their living rooms on a laptop, mobile phone, or portable gaming console.
Yahoo! announced the development of software and services that enable consumers to view, create, and share content between their mobile phones, computers and living rooms, all using the Internet.
Google developed a distribution system to allow anyone to provide videos for free or for sale, and allow others to download that content to a computer, Apple iPod, or Sony Play Station Portable (PSP). Google has already announced content distribution agreements with large content providers like CBS and the NBA. This follows the recent success of NBC, ABC, and ESPN, which is distributing programming in partnership with Apple's iTunes.
TiVo displayed a soon-to-be-released software update that makes it simple for consumers to watch their favorite television shows on popular players like the iPod and PSP. And soon, the next generation TiVo recorder will help consumers record over-the-air high-definition television.
Together, XM Radio and Pioneer developed an innovative portable satellite radio player that allows consumers to automatically record their favorite songs or shows while they are being broadcast. A consumer's preferences are stored on the radio, and when connected to a computer, XM's software helps the consumer to find more information about the artists, purchase music through the new Napster, and discover other songs and shows by similar artists.
“The message of the Consumer Electronics Show is clear. The market for delivering content digitally over new technologies is working. Consumers can watch and listen to the content they purchase anytime and anywhere they want. Some of that content will be protected, and consumers can decide whether that protection is flexible enough. All of these great developments happened without government intervention.
“The public appetite for buying individual TV shows and songs online is growing by leaps and bounds. There are more ways than ever to watch TV and movies and listen to the radio. Sales of HDTV sets are skyrocketing.
“Yet even as innovators in the content industry promote these alternative distribution technologies, the very same content industry wants Congress to step in and give it protection from the vague threat of massive copyright infringement the industry says these new technologies could facilitate. Let us be clear. The content industry has not shown that any infringement has resulted from these technologies. And they certainly have not shown that government technology mandates will work to stop actual copyright pirates rather than prevent ordinary consumers from engaging in lawful activities.
“The content industry is asking Congress to impose three technology mandates: the broadcast flag, radio content protection and an end to the analog hole. Each mandate 1) injects government into technological design; 2) places limits on lawful consumer activities; and 3) increases consumer costs by making obsolete millions of digital devices. Once consumers start to purchase devices that are compliant with these technology mandates, the costs will be enormous. For example:
A consumer would not be able to record over-the-air local news on her broadcast-flag compliant digital video recorder in her living room and play it back on a non-compliant player in her bedroom (broadcast flag).
A member of Congress could not email a clip of his appearance on the national news to his home office (broadcast flag).
A consumer would not be able to record analog home movies using a digital camcorder and transfer them to a computer in order to make a DVD (analog hole).
A student would be prohibited from recording excerpts from a DVD for a college Powerpoint presentation (analog hole).
A consumer would be unable to record individual songs off digital broadcast and satellite radio (radio content protection).
Current versions of TiVos (and other digital video recorders), iPods (and other MP3 players), cellphones and play station portables would not work with analog hole closing compliant devices, rendering them virtually obsolete. (analog hole).
A university could not use digital TV video clips for distance learning classes (broadcast flag).
“I urge the Committee to think very long and hard about trying to fix what is not broken. Ask yourselves, in light of recent marketplace developments, is it good policy to turn the Federal Communications Commission into the Federal Computer Commission or the Federal Copyright Commission? Is it good policy to impose limits on a new technology like HD Radio (that unlike digital television, consumers need not adopt) that may well kill it? Is it good policy to impose a technological mandate (like the broadcast flag and closing the analog hole) that would result in consumers having to replace most of the new devices that they just purchased?
“There are better alternatives for protecting digital content than heavy-handed technology mandates. Those alternatives are a multi-pronged approach of consumer education, enforcement of copyright laws, new business models for content distribution and the use of technological tools developed in the marketplace, not mandated by government. The recent Grokster decision and the passage of the Family Entertainment and Copyright Act are just two of several new tools that the content industry has at its disposal to protect its content.”
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