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Return of the Broadcast Flag?

May 10, 2005

Much like the villain in a bad slasher flick, the Broadcast Flag looks to be hard to kill. Last week’s Federal Appeals Court decision simply said that the FCC didn’t have the authority to issue the mandate, not that it was a bad idea.

Many people, including Stanford Law’s Lawrence Lessig, feel that the battle will (and should) soon resume in Congress.

The heart of the issue is that the content providers — TV networks and movie studios — claim that they will not produce HD content without an imbedded hardware DRM like that mandated by the broadcast flag.

Congress in turn is afraid that the voters will hit the fan if they force a deadline for everyone to go digital, and there’s no HD content to take advantage of.

TVPredictions sums this up nicely.

Congressional leaders know that if they pass a law mandating the transition to digital in 2007 or 2008, there better be a dramatic increase in HDTV shows to justify the decision. If not, consumers will blame Congress for forcing them to buy a digital set — or a converter box — without getting much in return. And if there’s limited HDTV programming on the “free” off-air stations, such as CBS, ABC and NBC, people will howl.

The problem is, it’ll never happen.

If today’s studios aren’t willing to pony up HD content — with or without the ability to tell you what, when and where you can watch (the net effect of the Broadcast Flag) — then someone else will.

The studios think they’ve got the government between a rock and a hard place, and that they can force the government to grant them unprecedented control over viewers, by claiming that they’ll take their bat and their ball and go home.

Let ’em. It’d go a long ways towards hastening their demise.

If the studios don’t come to the table, this will open the door for entrepreneurs like Mark Cuban (currently behind HDNET) and others to take the slack.

Bollywood and Hong Kong already produce a staggering amount of content — if Hollywood decided to kill itself, how long would it be before they started cranking out content geared specificly for the US market?

But the fact is that it’d never happen — if it looked like they were going to lose the market, most Hollywood studios would fall all over themselves to produce HD content — with or without the broadcast flag.

When this comes to congress — and it will, probably sooner than later — be sure to let your congresscritter know how you feel about this cheap attempt to hijack control over your viewing habits.

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