Sneaking through the broadcast flag?

Well, it looks like it was premature to call the broadcast flag dead for the year. According to the Electronic Frontier Foundation (EFF), rumor has it that an amendment reviving the broadcast flag will be introduced Tuesday in the Senate Commerce, Justice, and Science sub-committee to be tacked on to an appropriations bill. When it comes to legislation, a good rule of thumb is this: If it has to be snuck in, (and if the EFF's reports are accurate, this is pretty sneaky) it's not something that people are going to be happy with.

Details are scarce at the moment, but the EFF is warning that this could be introduced tomorrow and voted on by the entire committee by Thursday. If this is true, once it's in the appropriations bill it's going to be pretty difficult to kill off. The EFF is urging folks to contact senators on the committee to try to put the brakes on this bad idea once and for all -- or at least for as long as it take the entertainment industry to think up yet another way to try to restrict fair use rights in the name of curbing "piracy."

As crafted, the FCC's broadcast flag rule recognized the right of consumers to share lawfully acquired digital broadcast content within their homes. But it also would have made it illegal for my staff to send a digital broadcast news clip from my district office to my Washington, D.C., office via the Internet. It would have precluded a library from sharing with a patron via the Internet excerpts from a digitally broadcast public affairs program. And it would have limited the ability of teachers to use material from digitally broadcast programs when engaged in distance education with students in rural areas--the very kind of activity Congress authorized in the TEACH Act.

Boucher also suggests a quid pro quo: If the MPAA must have a broadcast flag, then users should get relief from the onerous DMCA in exchange. Boucher's Digital Media Consumers' Rights Act of 2005 is a good start to repealing the worst parts of the DMCA, giving people the right to circumvent copy-protection so long as they're not doing so for illegal purposes. For example, ripping MP3s from a CD that you've purchased to listen to on your own MP3 player -- or simply burning a second music CD for your car stereo. Despite the fact that CD copy-protection doesn't actually prevent widespread copying, major labels still insist in inflicting it on users.

Would it be too much to ask for Boucher, the MPAA and the EFF (and others) to sit down and craft legislation that's fair for everyone involved. There may be a legitimate need for something like the broadcast flag, but the way that the MPAA goes about it has the side-effect of trampling all over the rest of the population's fair-use rights. The entertainment industry should not be able to single-handedly set the rules that govern use of broadcast content. It may be their content, but they're our airwaves.