Authored by Wendy Seltzer
Download from SSRN
Abstract:The Broadcast Flag was an FCC Rule adopted in late 2003 to restrict
“indiscriminate Internet redistribution” of television programs by
limiting the capabilities of digital television tuners. While it would
not have stopped television piracy, the Rule would have sharply limited
independent and open-source development of home media technology with
features like TiVo’s “pause live TV.” I argue that technology mandates
must be assessed not only by their effectiveness against the problem
they are designed to address, but also by their collateral effects on
technology development and end-user innovation. Measured against this
wider circle of effects, the Broadcast Flag Rule would hurt far more
than it helped. [Since this piece was published, the Broadcast Flag
Rule was struck down by the D.C. Circuit on the grounds that the FCC
lacked jurisdiction to regulate signals once received. As of late 2005,
Congress is being lobbied to re-enact the Flag rule or to give the FCC
the power to do so.]