CEA Emphasizes Home Recording Rights In FCC "Broadcast Flag" Filing

[Gregg Lengling]

In a filing submitted with the Federal Communications Commission (FCC) regarding digital broadcast copy protection, the Consumer Electronics Association (CEA) emphasized the importance of preserving normal consumer expectations under any digital copy protection regime. The FCC currently is reviewing proposals related to digital copy protection, which could include encryption technologies or a "broadcast flag" approach intended to secure digital content transmissions.

CEA submitted the filing in the context of its "Guiding Principles On Intellectual Property," which emphasize that legitimate home recording must not be confused with piracy. CEA's Guiding Principles argue the Supreme Court's 1984 Betamax case ruling that private, noncommercial home recording of copyrighted programs remains "vital and viable" in the digital age.

"Though not codified by statute, fair use is a judicial doctrine, and it is neither practical nor desirable to resort to court action to test its every application," CEA argues in the filing. "What is possible is the preservation of fair use values in the face of demands for more specific and granular levels of authorization."

Commenting on today's filing, CEA Vice President of Technology Policy Michael Petricone said, "Interactive digital technology offers consumers endless benefits, but also presents the potential danger of content owners choosing by 'remote control' not only the copy status of content in consumers' homes, but also the home interfaces that may be active at any time. Some encryption and marking schemes could even control the viewing resolution at which content may be enjoyed. This clearly exceeds the reasonable protections that may be necessary to guard against illegal use of copyrighted content for personal gain."

In the case of the broadcast flag specifically, CEA's filing argues encoding rules are necessary that preserve reasonable and customary consumer practices and prevent application of the "flag" to news and educational programming in particular.

"Ultimately, the government must ensure that customary consumer choice and the liberties, privacy and freedoms of one's own home prevail," Petricone said. "As CEA consistently has maintained, the fair use, free commerce in devices, and first-sale doctrines provide that there should not be any constraint on retransmission within a circle of friends and family and that this fair use 'circle' may appropriately extend both within and outside of the home.

"In discussing home devices that may be connected to networks, some have found it tempting to apply the word 'piracy' to ordinary consumer practices. Doing so moves the issue away from reasonable and customary home recording, and onto practices that have nothing to do with home recording at all. As our filing notes, CEA specifically would oppose any 'flag' regime that would require a higher level of user authorization for private, noncommercial activities within the home or the home network."

"Any consideration of these issues will reach a seriously flawed result if consumer home network devices are viewed first as implements of 'piracy,' and only secondarily as devices essential to reasonable and customary consumer activity," CEA's filing concluded.