Intellectual Property Law

Concern over the growing threat of readily accessible digital television content has Congress poised to jump into the fray with legislation to catch up to the rapidly developing technology.  The advent of digital television recorders has made it much easier for consumers to record their favorite content in a manner that lends itself to ready re-distribution.  Perhaps hoping to get out in front of this trend, both the Senate and the House are moving to draft legislation authorizing the Federal Communications Commission to require ?digital broadcast flags? to be embedded in content.  These flags would enable broadcasters to block the recording of certain audio and video programs by attaching a bit stream to over-the-air digital transmissions in an effort to combat piracy.  New digital recording devices would be required to recognize the encrypted bit stream and respect various copying restrictions ? perhaps allowing only a one-time recording, or a lower-quality recording ? and warning (or ?flagging?) the would-be recorder of the restrictions. 

The FCC implemented the controversial broadcast flag rules in 2003, but last May the D.C. Court of Appeals struck down the mandate in a unanimous opinion, saying Congress had not given the FCC authority to institute such a plan.  The Senate Commerce Committee is supposedly set to take up hearings on the topic in March.

The battle lines are shaping up rather predictably:  content providers advocate that the flags help prevent piracy, while consumers and digital rights advocates contend that the flags violate fair use provisions. 

What do you think of digital broadcast flags?  Is a legislative solution preferred over a business solution?  Will Congress end up passing legislation on this, and if so, will it have the desired effect?  Stay tuned to the IP Blawg for the latest digital developments.