Return of the broadcast flag - and demise of fair use doctrine?

Legislation is being floated by the entertainment industry that would require the broadcast flag and would put an end to future fair use of copyright material, says EFF attorney Fred von Lohmann. EFF is chiefly concerned with the fair use aspect:

According to [Hollywood], here's all tomorrow's innovators should be allowed to offer you:

"customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law."

... Fair use has always been a forward-looking doctrine. It was meant to leave room for new uses, not merely "customary historic uses." Sony was entitled to build the VCR first, and resolve the fair use questions in court later.

...Now the RIAA and MPAA want to betray that legacy by passing laws that will regulate new technologies in advance and freeze fair use forever. If it wasn't a "customary historic use," federal regulators will be empowered to ban the feature, prohibiting innovators from offering it. If the feature is banned, courts will never have an opportunity to pass on whether the activity is a fair use.