The discussion I heard recently on “Maximizing your digital lifestyle” made me reflect on the convergence of digital media and its impact on our modern lifestyle. (Convergence is usually defined as the ‘coming together’ of formerly distinct technologies, industries or activities.) The speakers on the podcast discussed their desire for the capability to experience their digital content wherever might be appropriate at the time, such as on the television when they want to show the latest video to a group of friends versus having everyone huddle around the computer. Another example of convergence is listening to a podcast while driving on a player built into the car stereo, and that stereo automatically downloaded the podcast for you without any intervention from you because you subscribe to an RSS feed sent from the podcast creator.
The recent decision of the 9th Circuit in the “Broadcast Flags” case shows the weakness of the convergence concept as content providers are the weakest link in the chain. True, it would be great to have the capability for platform independent access to media, but the reality is that many content providers are too skittish to supply their content due to concerns about protecting their intellectual property from unauthorized distribution. The reason the FCC championed the “Broadcast Flags” scheme was to give broadcasters some peace of mind that perfect digital copies of their broadcasts would not be freely available on the Internet where they could no longer control its distribution. A broadcast flag is a set of digital bits sent with a TV program to prevent digital copying of the content on the consumers end. Basically, the idea is that if the “flag” is turned on to indicate that the work being downloaded came from an over the air broadcast then that work would not be recorded by the device. In this recent decision, the 9th Circuit held that it was beyond the power of the FCC to implement the scheme since it only took effect after the program finished its transmission and the FCC only has jurisdiction over the broadcast itself.
Now, I believe the broadcasters are likely to go to Congress directly to implement their desired protection scheme and will lobby hard for their plan. Opponents to the plan will also lobby hard. I am concerned that the proper balance be struck between the two competing interests. It’s important to understand that both sides have legitimate rights protected by law. The right to control when and where works are publicly displayed is one of the rights reserved to the copyright holder under the Copyright Act. Countering those rights are the fair use rights held by people who have download the work legitimately and have legitimate uses in mind for the works, such as for educational purposes in a classroom. These people have a reasonable expectation to be able to use the work for these purposes unlimited by hardware restrictions.
Convergence requires two willing partners, the technologists who create the devices capable of freely sharing media and the content providers who create the stuff worth sharing. If neither side is willing to work with the other then convergence is merely a buzzword that is ahead of its time. Efforts at digital rights management built into the hardware such as the “Broadcast Flags” regime are a little too harsh, as that plan cuts off completely the fair use rights of legitimate users. We shall see how this plays out. Stay tuned.