Order Code RS22106
Updated May 11, 2005
CRS Report for Congress
Received through the CRS Web
Copyright Protection of Digital Television:
The “Broadcast Flag”
Angie A. Welborn*
American Law Division
This report addresses the adoption of a “broadcast flag” system by the Federal
Communications Commission (FCC) to protect digital television (DTV) broadcasts
from unauthorized redistribution. The report also addresses the recent decision of the
United States Court of Appeals for the District of Columbia Circuit reversing and
vacating the FCC’s broadcast flag report and order. It will be updated as events warrant.
Introduction. Technological advances, a looming statutory deadline, and the need
to reclaim analog spectrum occupied by television broadcasters has put digital television
(DTV) on a fast track. At the same time, development of digital television has
necessitated balancing competing interests – those of content holders, and those of the
consumer and technological industries. Reconciling these interests has led to the
development of a “broadcast flag” to combat unauthorized redistribution of content
broadcast through digital television signals. The move to protect digital content has been
given urgency by the Federal Communications Commission’s (FCC) determination that
broadcast transmissions be digital by December 31, 2006.1
What is DTV? Digital Television (DTV) is a new television service representing
the most significant development in television technology since the advent of color
television in the 1950s. Three major components of DTV service must be present for
consumers to enjoy a fully realized “high definition” television viewing experience. First,
digital programming must be available. Digital programming is content that is assembled
with digital cameras and other digital production equipment. Second, digital
programming must be delivered to the consumer via a digital signal. Third, consumers
This is an update of a report prepared by Carey Lening, Law Clerk with the American Law
Federal Communications Commission, In the Matter of Advanced Television Systems and Their
Impact Upon the Existing Television Broadcast Service: Fifth Report & Order, 12 F.C.C. Rec.
12809, 12811-12812 (1997) (hereinafter FIFTH REPORT). In the Balanced Budget Act of 1997
(47 U.S.C. § 309(j)(14) (2004)), Congress codified the December 31, 2006 date.
Congressional Research Service ˜ The Library of Congress
must have digital television equipment capable of receiving the digital signal and
displaying digital programming for viewing.2
Developing a protocol for transmitting and receiving digital television in a way that
accommodated competing interests has proved challenging. Digital content, like other
media, can be relatively easily duplicated and distributed, especially with the aid of the
Internet.3 Unlike other types of content, duplication of digital information does not
degrade the original. Whereas the quality of a VHS tape degrades after successive
copies, a DVD may be copied almost infinitely with no effect on the quality of the
medium. It is due to the ease and inexhaustible potential of copying digital media,
coupled with the proliferation of peer-to-peer services (such as Morpheus and Kazaa), that
content providers have greeted this new technology with some trepidation.
The Broadcast Flag. The “broadcast flag” is a combination of technical
specifications and federal regulations designed to combat unauthorized redistribution of
content broadcast through digital television (DTV) signals. Its adoption was prompted
largely by the Federal Communications Commission’s (FCC) determination that
broadcast transmissions be digital by December 31, 2006.4 The FCC imposed a transition
to DTV in part to capitalize on the sharper images, CD-quality sound and wider screen
angles that are available from advanced digital technologies. But in addition to the
technological impetus, the FCC has also been motivated by the knowledge that
broadcasters, upon receiving digital spectrum allotments, must relinquish their analog
spectrum allotments to the FCC. The analog spectrum will in turn be auctioned for other
commercial and public interests. Content providers, fearing widespread piracy that would
endanger aftermarket sales (such as cable re-broadcast, and DVD sales), urged the FCC
to provide for a means to protect their assets. Meanwhile, consumer electronics and
information technologists, as well as consumer rights groups, came together in an effort
to minimize the possible negative outcome that a wide-scale regulation might have
The technical specifications behind the broadcast flag were a compromise measure,
premised on an understanding that more restrictive approaches (such as encrypted signals
created at the source of transmission) imposed economically or technologically infeasible
conditions. The compromise came after a consortium of content providers, consumer
electronics and information technology groups came together, forming the Broadcast
Protection Discussion Group (BPDG).5 The result of this consortium was a “Final
For more information on DTV, see CRS Report RL31260, Digital Television: An Overview, by
However, it should be noted that while duplication is fairly simple, distribution, especially of
high-end digital content, can be quite time consuming. For example, over broadband
connections, while a music file may take a matter of minutes, television shows in standard analog
format take a number of hours. Digital programs (such as an hour of High Definition television
programming) in turn, may take upwards of 10-15 hours to successfully download.
FIFTH REPORT at 12811 ¶ 5.
This collaboration was open to any group or individual wishing to participate, with the
exception of the press. BPDG, Final Report of the Co-Chairs of the Broadcast Protection
Discussion Subgroup to the Copy Protection Technical Working Group, FN 4, (June 3, 2002)
Report” published in June 2002, which was delivered to Representative Billy Tauzin,
then-Chairman of the House Committee on Energy and Commerce. The report suggested
a set of “robustness and compliance” rules for devices capable of demodulating digital
television signals, which would require that such devices protect “flagged” content from
being recorded by unauthorized devices. However, the flag itself would not require that
all machines recognize it, and would act only as a means to halt unauthorized use in
machines capable of detecting it.
In November 2003, the FCC published a Report and Order in the matter of digital
broadcast content protection, which required all digital devices capable of receiving
digital broadcast over-the-air, and sold after July 1, 2005, to incorporate a standard
content-protection technology that would recognize the broadcast flag, and limit
redistribution when the flag is recognized.6 The FCC’s regulations apply the flag mark
to all devices and receivers that are capable of receiving digital content. Such devices
include, but are not limited to: televisions, computers, digital video-recorders (such as
TiVo), and DVD players. The broadcast flag itself is optional for broadcasters, allowing
them to determine how much copy-protection they wish to impose on their digital
Because the flag does not prevent the distribution of content to non-compliant
devices, a consumer who continues to use an older television set (or theoretically, a noncompliant demodulator) will still be able to receive and copy television programs in nondigital form. In addition, digital television sets made prior to July 1, 2005, will still enjoy
digital content with no obstruction. In citing its support for a flag-based approach over
encryption or other means, the FCC noted concerns over “the implementation costs and
delays” associated with other solutions.8
In addition to the “compliance” requirements imposed on receiving devices, the FCC
also imposed a “robustness” requirement that forces makers of consumer devices to
ensure that circumvention is difficult. The standard of care adopted by the FCC was that
of “an ordinary user using generally available tools or equipment.”9
(available at [http://www.cptwg.org/Assets/TEXT%20FILES/BPDG/BPDG%20Report.DOC]).
FCC, In the Matter of Digital Broadcast Content Protection: Report and Order and Further
Notice of Proposed Rulemaking, MB Docket No. 02-230, 18 F.C.C.R. 23550, 23589 (November
4, 2003) (hereinafter REPORT AND ORDER).
The amount of copy protection has a potential for variability. For instance, a content provider
such as C-SPAN may decide that no copy protection is necessary, and would set the flag to an
off-position. Digital content could therefore be available without any restrictions to the user.
However, a broadcaster who sought to show pay-per-view digital content might choose to set the
flag to an on-position, which would disallow any form of copying, and could also potentially add
a setting to restrict the amount of time a user has to watch the program after purchase.
Alternatively, a content provider may decide that individual copying is permitted, provided a user
views that copy on a secure, compliant device.
REPORT AND ORDER at 23561.
REPORT AND ORDER, Appendix B, at 23592.
FCC Authority. The FCC derives its regulatory authority over digital television
from both direct and ancillary statutory authority.
Digital Television Implementation Under the Telecommunications Act
of 1996. The Telecommunications Act of 1996 directed the FCC to promulgate
regulations regarding the licensing of advanced television services. The act defined
“advanced television services” as “television services provided using digital or other
advanced technology.”10 In prescribing such regulations, the Commission was authorized
to adopt such “technical and other requirements as may be necessary or appropriate to
assure the quality of the signal used to provide advanced television services ... and
prescribe such other regulations as may be necessary for the protection of the public
interest, convenience, and necessity.”11
Pursuant to the Telecommunications Act of 1996, the FCC has issued regulations
regarding spectrum allocation for digital television stations and has established a timeline
for the implementation of digital broadcasting by licensees.12 At least one court has
agreed that in regard to television digital tuners, the FCC possessed reasonable authority
to act, based on an “unambiguous command of an act of Congress.”13
Copyright Protection. While copyright protection generally lies outside the
scope of the FCC, the Commission may exercise jurisdiction over matters not explicitly
provided for by statute if the exercise is “reasonably ancillary to the effective performance
of the Commission’s various responsibilities for the regulation of television
broadcasting.”14 The FCC has asserted that television receivers generally, and digital
television receivers specifically, fall within the scope of that authority.15 Under the FCC
Report and Order, “pursuant to the doctrine of ancillary jurisdiction, we adopt use of the
... flag as currently defined for redistribution control purposes and establish compliance
and robustness rules for devices with demodulators to ensure that they respond and give
effect to the ... flag.” However, the FCC initially put off deciding on permanent
mechanisms for approving “content protection and recording technologies to be used in
47 U.S.C. 336(i)(1) (2000).
47 U.S.C. 336(b)(4) and (5).
47 C.F.R. 73.624 (2004). See also: [http://www.fcc.gov/mb/policy/dtv/] for an overview of the
FCC’s activities with regard to the implementation of DTV.
Consumer Electronics Association v. FCC., 347 F.3d 291, 301 (D.C. Cir. Oct. 28, 2003).
U.S. v. Southwestern Cable Co., 392 U.S. 157, 178 (1968).
As to ancillary jurisdiction, see Southwestern Cable, at 178. Concerning the FCC’s ancillary
authority, Congress has given the Commission “a comprehensive mandate,” with “expansive
powers,” which has led the courts to conclude that the Communications Act of 1934 provides the
Commission with ancillary jurisdiction over matters that are related to the provision of radio or
television service, though not specifically enumerated in the act. Historically the FCC has
exercised its ancillary jurisdiction to promulgate regulations in a number of areas. See
Southwestern Cable, at 173, 177; U.S. v. Midwest Video Corp, 406 U.S. 649 (1972). In addition
to this historic authority, the FCC relies on the definition of “wire/radio communications,” which
includes “all incidental ‘instrumentalities, facilities, apparatus and services’ that are used for the
‘receipt, forwarding, and delivery’ of such transmissions” as a basis for its authority over
television receivers. REPORT AND ORDER at 23563.
conjunction with device outputs.” Instead, in its Report and Order, the FCC proposed
examination of such issues at a later time, and established an interim certification process
for currently-proposed devices.16 In addition to the need to regulate television
broadcasting, the FCC’s action arguably protects broadcasters from any unreasonable loss
in advertising revenue that may result from unauthorized sharing of copyrighted digital
However, the FCC was careful to note that the “scope of our decision does not reach
existing copyright law,” and that its rulemaking established a “technical protection
measure” that did not change the underlying “rights and remedies available to copyright
holders.” In addition, “this decision is not intended to alter the defenses and penalties
applicable in cases of copyright infringement, circumvention, or other applicable laws.”17
Possible Implications of the Broadcast Flag. While the broadcast flag is
intended to “prevent the indiscriminate redistribution of [digital broadcast] content over
the Internet or through similar means,” the goal of the flag was not to impede a
consumer’s ability to copy or use content lawfully in the home, nor was the policy
intended to “foreclose use of the Internet to send digital broadcast content where it can
be adequately protected from indiscriminate redistribution.”18 However, current
technological limitations have the potential to hinder some activities which might
normally be considered “fair use” under existing copyright law.19 For example, a
consumer who wished to record a program to watch at a later time, or at a different
location (time-shifting, and space-shifting, respectively), might be prevented when
otherwise approved technologies do not allow for such activities, or do not integrate well
with one another, or with older, “legacy” devices. In addition, future fair or reasonable
uses may be precluded by these limitations. For example, a student would be unable to
email herself a copy of a project with digital video content because no current secure
system exists for email transmission.
In addition, some consumer electronics and information technology groups contend
that the licensing terms for approving new compliant devices are limiting, and may
potentially stifle innovation, especially with regard to computer hardware.20 While the
FCC in its Report and Order declined to establish formal guidelines for which “objective
FCC, REPORT AND ORDER, at 23575.
Id. at 23555.
An owner of a copyright has a number of exclusive rights under the Copyright Act (17 U.S.C.
§ 101 et seq.), including the exclusive right to reproduce and distribute copies. To establish a
claim of copyright infringement, the plaintiff must show ownership of the copyright and copying
by the defendant. However, a claim of copyright infringement is subject to certain statutory
exceptions, including the fair use exception (17 U.S.C. § 107 (2004)). This exception “permits
courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the
very creativity which that statute is designed to foster” (Dr. Seuss Enters., L.P. v. Penguin Books
USA, 109 F.3d 1394, 1399 (9th Cir. 1997)).
Center for Democracy and Technology, Implications of the Broadcast Flag: A Public Interest
Primer, (December 2003) (available at [http://www.cdt.org/copyright/031216broadcastflag.pdf]).
criteria should be used to evaluate new content protection and recording technology,” it
has stated an intention to take up these issues in the future.21
Finally, consumer rights and civil liberties groups worry about the possibility that
such content protections will limit the free flow of information and hamper the First
Amendment. This concern is expressed most prominently regarding news or public
interest-based content, or works that have already entered the public domain. Despite
suggestions raised by consumer rights groups, the FCC has so far declined to adopt
language to prevent content providers from using the broadcast flag on such programs,
largely because of the “practical and legal difficulties of determining which types of
broadcast content merit protection from indiscriminate redistribution and which do not.”22
Legal Challenges to the Broadcast Flag. In October of 2004, the American
Library Association (ALA), Association of Research Libraries, American Association of
Law Libraries (AALL), Medical Libraries Association and others, petitioned the U.S.
Court of Appeals for the District of Columbia Circuit to review the FCC’s Report and
Order. Bringing a challenge on behalf of “libraries, librarians and educators ... and ...
television viewers and computer users,” the petitioners, as parties to the agency
proceedings, questioned the FCC’s statutory authority to establish the broadcast flag
system under the Communications Act of 1934. On May 6, 2005, the United States Court
of Appeals for the District of Columbia Circuit granted the ALA’s petition for review and
reversed and vacated the Commission’s order requiring DTV reception equipment to be
manufactured with the capability to prevent unauthorized redistributions of digital
In American Library Association v. Federal Communications Commission, the
court of appeals determined that the FCC lacked the authority “to regulate apparatus that
can receive television broadcasts when those apparatus are not engaged in the process of
receiving a broadcast transmission.”24 The court noted that in adopting the broadcast flag
rules, the Commission “cited no specific statutory provision giving [it] authority to
regulate consumers’ use of television receiver apparatus after the completion of the
broadcast transmission.”25 The Commission’s reliance on its ancillary jurisdiction under
Title I of the Communications Act of 1934 was rejected by the court. The court found
that while the jurisdictional grant under Title I plainly encompasses the regulation of
apparatus that can receive television broadcast content, the Commission’s regulatory
authority does not extend beyond the actual receipt of such content by the apparatus in
question. The court’s decision was limited to the resolution of the question of whether
the Commission had the authority to impose the broadcast flag requirements, and did not
address the imposition of the broadcast flag requirements in terms of copyright law.
REPORT AND ORDER at 23578.
Id. at 23568-23569 (internal citation omitted).
2005 U.S. App. LEXIS 7847 (May 6, 2005).
Id. at 4.