Lawmakers on the House Judiciary Committee are circulating drafts of three bills that would give federal agencies the ability to write regulations preventing digital radio and TV broadcasts from being pirated.
Two of the legislative proposals would give authority to the Federal Communications Commission to approve so-called "broadcast flag" regulations that would prevent digital broadcasts from being uploaded on the Internet.
A third would prevent companies from manufacturing, importing or selling devices that convert copy-protected digital broadcast program into an analog program. Converting digital broadcasts into analog broadcasts is known as the "analog hole." The Patent and Trademark Office would develop the regulation regarding the analog hole.
In May, the federal appeals court here threw out a broadcast flag regulation adopted by the FCC. The case argued by Public Knowledge, a nonprofit organization supporting fair use, contended that the FCC did not have the authority to write the regulation.
The legislative proposals are being circulated as the Judiciary Committee's copyright panel is planning a hearing on the issue on Thursday. While Motion Picture Assn. of America (MPAA) president and CEO Dan Glickman, Recording Industry Assn. of America (RIAA) president and CEO Mitch Bainwol and Public Knowledge president Gigi Sohn are scheduled to testify on the issue, the hearing may get postponed.
Plugging the "analog hole" and installing a "broadcast flag" are considered by copyright holders as critical to the transition to digital TV. Without the copyright protections, entertainment industry executives contend that high-value programming will migrate from free, over-the-air broadcasting to pay platforms that already have adequate copyright protections.
"The draft appears to be in sync with industry consensus on both analog hole and broadcast flag and we look forward to working through the legislative process to get them enacted quickly," said MPAA spokesperson Gayle Osterberg.
Radio comes under a different legal regime. Since radio broadcasters don't have to pay royalties to record companies, the record companies can't withhold their products from over-the-air digital radio service. The recording industry wants to ensure that digital radio functions like the current analog service, and not as a free distribution service.
"We are raising the issue with Congress that whatever the platform is, whether it's over-the-air digital radio, HD radio or satellite radio, that there's a new functionality coming where there will be a convergence of platforms," the RIAA's Bainwol said. "There's the capability to cherry-pick songs, store them in players and avoid a purchase. That's a concern to creators."
Opponents of the proposals argue that they give too much control to the copyright holders over the design of video and audio equipment.
"We are willing to work with the Hill on these issues, but we of course have serious reservations about the draft bills," said Public Knowledge spokesman Art Brodsky. "They would give the FCC and the Patent and Trademark Office wide-ranging power and control over the development of technology while depriving consumers of rights they have enjoyed for years. These are unwarranted technological mandates."
Bainwol dismissed those arguments.
"This isn't about technological mandates. It's about common sense copyright protection," he said. "We're agnostic on the cure, but want to make sure the problem is addressed."