Digital Broadcast Flags

5 December 2002

With the advent of digital data (you know the zeros and ones), we have essentially perfected the ability to make copies. The days when each copy of a copy was worse than the copy before are now over. They're all perfect. This fact makes Hollywood and the music industry crazy. Remember Napster (may it rest in peace)?

The problem is that perfect copies are just too easy to make. To content providers like moviemakers, this could mean that if they broadcast a movie over digital television (coming to your family room soon), and you record it using your DVD-RW (devices that will allow you to record onto a DVD), you can have it forever without paying them for that right. And, if that's not bad enough (let's face it, you can already do that with your VCR), you can then post it on the Net for others to copy.

The industries with the most money to lose here, like the movie and record industries and television broadcasters, would like to adopt copy protection schemes that prevent or at least "inhibit" people from making improper copies of the content that they invested money to provide. In their perfect world, they would have the government require that hardware devices used to play the content, like digital televisions, implement, rather than thwart, the copy protection scheme embedded in the digital content.

I do emphasize the word "inhibit" because let's not forget one of the axioms of any defensive tactic. For every measure, there's a countermeasure and for every countermeasure, there's a counter-countermeasure and so on. So, while no measure is likely to keep the devoted hacker out for long, it may keep Joe Websurfer out.

Broadcast Flag

One of the controversies brewing now has to do with what's called a "broadcast flag." Essentially, a "broadcast flag" is a string of digital code that broadcasters would embed in a digital TV broadcast. Its purpose would be to tell your DVD player and PC that you're not authorized to retransmit this content over the Net.

The industries that are pushing for a legislatively mandated digital flag say that it won't stifle innovation. Rather, they insist that it will enable content providers to release more of their programming in a digital format and thus give us all more options.

So, who's opposed? It's the usual suspects like the Electronic Frontier Foundation ( and the Center for Democracy and Technology ( According to the EFF, "Whatever measures the studios take to 'protect' their product from their customers will have to be applied to PCs too. The tamper-resistant seal around their devices will have to be wrapped around your software and hardware." So?

I'm sorry, but while I like free stuff as much as the next guy and though I may have more than just looked at Napster, I think it's time for some maturity to set in here. By "maturity," I mean that we come to accept that the hippy-commune-build-computers-in-your-garage-share-software-share-everything-days are over. Man, you can get viruses that way.

I'm so tired of the whining by the utopians who think this life is one big commune. Folks, content costs lots of money to create. It's also private property. Like any other private property, people and corporations (yes, my utopian friends, even those evil corporations) are entitled to take reasonable measures to protect their right to control their private property. If they can't protect it, they won't create it. If they do create it, they're only going to distribute it in ways that they can reasonable protect and police.

While your utopia may be a world filled with easily copied bootlegged content, mine is a world where I pay a fair price to enjoy content. You may like searching poorly constructed websites looking for good copies that download unpredictably and slowly. I don't have the time or the patience for that and at a higher level--it's stealing. And you know it.

We live in a world where pretty much all content could live on the Net, be available to your PC, and you would never have to leave your house or office. It "could" because those who create and own content often won't put it on the Net because they don't believe it's safe there and in many ways they're right. The temptation to copy and redistribute is just too great and this is inhibiting the growth and development of the Net.

I think that it's time that we accept that broadcast flags and other copy protection schemes will be a part of our lives. It's really no different from a fence around your house. It's your property marker, it's your message to the world that this is yours and digital content is really no different. For you utopians out there, you're just going to have to accept that if there is no profit in content because people steal it, there won't be content.

Mark Grossman's "TechLaw" column appears in numerous publications. Mark Grossman has extensive experience as a speaker as well. If you would like him to speak before your group or corporate meeting, please call (305) 443-8180 for information.

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