FCC IS WARNED NOT TO REWRITE COPYRIGHT LAW ON BROADCAST FLAG
If FCC is going to mandate broadcast flag technology it better find way to do it without altering copyright law, members of House Judiciary Courts, Internet & Intellectual Property Subcommittee told FCC Media Bureau Chief Kenneth Ferree Thurs. “I hope it is clear to you,” Chmn. Smith (R-Tex.) told Ferree at end of hearing, “that there is a bipartisan consensus about the FCC’s infringement on the jurisdiction of this committee… [Regulating] transmission is one thing, use is another.” When Ferree said he would “endeavor” not to enter subcommittee’s jurisdictional bounds with FCC’s proposed rulemaking, Smith replied: “I hope you won’t just endeavor.”
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The FCC last month concluded its comment period on rulemaking, which asked whether agency had jurisdiction over broadcast flag and, if so, whether it should mandate such technology. Smith cited “a great danger of massive piracy of unprotected broadcasts” and made clear he wasn’t necessarily opposed to flag, just to FCC’s imposition of one in way that would alter copyright law. Repeatedly cited at hearing were comments filed at FCC by groups such as MPAA and Computer & Communications Industry Assn. (both of which had officials testifying at hearing) that had cited copyright law in outlining how FCC should act. Subcommittee ranking Democrat Berman (Cal.) said FCC’s rulemaking had “clear implications for copyright law.” While he said he supported govt.-imposed tech mandates in select circumstances such as Macrovision, imposition of mandate by FCC “gives me pause… I'm unaware of any precedent of the FCC revising copyright law.”
The FCC has been working closely with House Commerce Committee, including Chmn. Tauzin (R-La.) and ranking Democrat Dingell (Mich.), Telecom Subcommittee Chmn. Upton (R-Mich.) and ranking Democrat Markey (Mass.) in committee’s DTV roundtables, and Ferree cited those talks and members early in his written testimony. He chose, however, not to include it in his spoken testimony. He tried to assure subcommittee he didn’t intend “to duplicate the work of the U.S. Copyright Office,” which Berman noted traditionally had been implementing arm of Congress’s wishes on copyright. He said that FCC could base jurisdiction for flag on Sec. 336 of Communications Act, which authorizes Commission to speed DTV implementation, but that his staff still was reviewing comments and hadn’t made recommendation to full Commission.
Smith, who isn’t on Commerce Committee, acknowledged that he was not expert in FCC procedure but learned firsthand how Commission handled queries about its timetables. Smith asked when FCC might act on proposed rulemaking, and Ferree demurred. Smith continued by asking for approximate date. Struggling to answer in some form, Ferree ventured that if FCC chose to act, “it would be done this year.” “Would that be 6 months? Three months?” Smith asked. Ferree again declined to be more specific.
U.S. Register of Copyrights Marybeth Peters confirmed that many of comments filed with FCC addressed copyright law, adding that some offered FCC definitions of fair use under law that she felt “are far beyond the scope of fair use.” Much of the comments focused on “consumer expectations,” phrase used by Rep. Lofgren (D-Cal.) and other fair-use advocates in describing what they felt obtrusive copyright law or technology didn’t always respect. But Peters said that while “we do not disagree that legitimate consumer expectations should play an important role in consideration of the broadcast flag proposal,” it seemed that “consumer expectations have been a driving force behind the proposal,” which she said was an extension of fair use not consistent with case law. Her concern, she said, is that “the important policy goals of copyright should not be undermined in course of adopting any regulatory framework that purports to be protecting fair use, when in reality it permits far more than fair use.” That also was concern of Berman, his counsel Alec French told us -- namely, that FCC, not intimately aware of copyright law, would be misled on fair use by some of commenters.
Beyond jurisdictional issues, hearing also saw continuation of debate on merits of flag itself, with MPAA Gen. Counsel Fritz Attaway calling it essential to permit content holders to release high-quality digital content, and CCIA Pres. Ed Black saying flag was means for Hollywood to impose further use restrictions. Black’s position received some support from Lofgren, who asked: “The real question is, what happens next? What controls will be imposed next?” But Rep. Keller (R-Fla.) said CCIA’s argument was undermined by fact that StreamCast, distributor of file-sharing program Morpheus, was CCIA member. “Morpheus joined us last year,” Black said, “and our position formed prior to that.” Black said that if StreamCast were found guilty in court of knowingly violating copyright law, it would be removed as member, adding that Microsoft wasn’t member because of its “anticompetitive behavior.” Keller asked why P2P services could have filters for adult content but not for copyrighted material, and Black responded that he supposed P2P services could apply such filter “if there’s a market for that.”
Broadcast flag “is not perfect,” Attaway said, but would discourage honest people from violating copyright law, leaving remaining ones to be pursued by law enforcement. But Black said MPAA’s approach was to “let other players… bear the costs” of flag technology: “You become one who has to pass on costs or invade their privacy.”