The Silver Lining of the Janet Jackson Incident:
A Demonstration of Democracy-Enhancing Technology, And The Need to Fight the "Broadcast Flag" Rule

By LAUREN GELMAN
Thursday, Mar. 18, 2004

I was at home watching the Super Bowl when I saw CBS broadcast -- live, as it happened -- the now-famous moment when during their performance, Justin Timberlake ripped off part of Janet Jackson's costume and, for a few seconds, exposed her breast. Like many viewers, I immediately hit pause, and the replay button on my TIVO (a few times) in order to confirm that the event was not a figment of my imagination.

Later, I learned that some more technically talented viewers had done more: They had grabbed a copy of the "clothing malfunction," exported it to their computers, and uploaded it to their weblogs. According to Scott Rafer, CEO of Feedster, thousands used his website to find and view the event.

What happened next was predictable: public outrage, an enraged and energized Congress, Capitol Hill testimony by repentant executives, and new legislation addressing indecency on television.

I'm no fan of increased regulation of speech, but the controversy had at least a small silver lining: It served as a demonstration of the power of innovation to promote the democratic process. In this case, the innovators were the entrepreneurial companies that harnessed the open nature of the Internet to enable users to easily capture, transfer, upload, post, and search for the TV clip.

Even those who missed the game could, because of these companies, easily watch and talk about the incident that was about to be a catalyst for major policy changes at the FCC. Their technologies thus enlarged the marketplace of ideas and influenced public debate.

Shouldn't government be doing all it can to support technologies and companies that enhance democracy like this? I believe the answer is yes.

But to the contrary, the Federal Communication Commission (FCC) is currently considering new technology regulations that would halt innovation in technologies that capture, manipulate and transfer digital television.

That, I believe, is a terrible mistake -- and one that if it cannot be stopped, hopefully, can be subject to some degree of damage control.

The FCC's Proposed "Broadcast Flag" Rule

The proposed FCC rule is commonly referred to as the "broadcast flag" rule. It would require companies to incorporate FCC-approved technology that protects digital TV (DTV) content from copying, into devices that grab DTV out of the airwaves, or transmit it to other devices like computers.

The purported purpose of this scheme is to ensure protection of copyrighted images. In reality, however, it goes much further than that. Images that are only a few moments long, such as those of the Jackson incident, fall within copyright's "fair use" exception, which allows us to use content without prior approval by the creator.

Copying a small part of a larger work -- whether it's a novel, a play, or a televised broadcast -- traditionally has, and ought to, count as fair use. Yet the proposed "broadcast flag" rule allows content owners to prevent these uses.

If We Must Live with a "Broadcast Flag" Rule, It Ought to Be a Limited One

At this stage in the rulemaking, some kind of broadcast flag regulation is inevitable. But the issues of exactly how the FCC will approve certain technologies, and under what circumstances is extremely controversial, and still open to debate.

For example, an interpretation of the so-called "robustness requirement" standard --which that requires content to be completely protected against any determined attempt by an expert hacker to crack the technology -- may preclude all software-based DTV players, whether open-source or proprietary, because of the inherent malleability of software.

Under other proposed standards, it is unclear whether companies could manufacture even those technologies that allow users fair uses of DTV. As noted above, the FCC has essentially ignored the crucial fair use issues.

The Innovations That Will Be Stymied By the "Broadcast Flag" Rule

We will doubtless lose fabulous innovations as a result of the "broadcast flag" rule. The Jackson clip was captured off of the current "analog" TV stream. But once digital television goes mainstream, creators can have direct access to a digital feed that will explode their ability to use and reuse broadcast content.

What will that mean in practice? Technology will support a wide variety of new uses of digital content, so that blog commentary on political programs will be enhanced by footage from ads and speeches, documentarians will be able to easily grab clips from TV, news websites will be able to integrate video into their text reporting, and parodies and reviews of TV shows will be able to incorporate content directly from their sources. Schoolchildren will be able to work on more sophisticated and multi-faceted projects, more easily. And frequent travelers will be able to time and space-shift television broadcasts onto a laptop to watch away from home.

The result will both benefit society, and empower individuals. For instance, an individual might create his or her own 9/11 memorial using a mixture of images and text.

The "broadcast flag" rule will put an end to all that.

There Is No Proven Harm From the Ability to Use and Reuse Broadcast Content

There is no question that the rule will destroy many positive uses of technology and dry up the well of innovation. For instance, no software is currently available to grab DTV waves out of the air and capture them on a television or computer -- the current generation of DTV tuners rely on dedicated hardware. The FCC rule may ensure that no such software ever exists.

Yet the available evidence so far suggests there will be no harm. While it currently takes many, many hours to upload or download a TV show to the Internet, some people do it. Yet there is no rash of people trading TV shows in a manner that harms the industry, and no evidence that there ever will be, even if it becomes a speedier endeavor.

For now, people still come home and watch TV on their couch, and the networks are still in business. Neither CBS nor the National Football League lost any money because of the distribution of the Jackson clip. And on the plus side, our democratic process was enhanced. Millions of people had access to view for themselves content that was subject to a national debate -- whether or not they were watching TV when the event occurred.

The FCC should not regulate in a manner that will freeze innovations that facilitate democracy and hurt both consumers and industry. Especially while the technology industry is trying to pull itself out of the dot-com bust, this is the last thing it -- or the economy as a whole -- needs.


Lauren Gelman is the Assistant Director of the Center for Internet and Society at Stanford Law School. She and law student Rob Courtney drafted reply comments filed by twenty-one technology companies in the FCC's Digital Broadcast Content Protection rulemaking.

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