This quote may be apocryphal, but Will Rogers once said that if two people share the same opinion, one of them isn't needed. Jim, Solveig and I often share the same opinion on this blog, which would seem to make me useless, but I think I come at the broadcast flag from a slightly different viewpoint from Jim and so, to prove my relevance, I have decided to post on it.

It's taken me a few days because what I'll be revealing here is that, years into the debate, I'm still not sure what I think. I will do my best to organize my thoughts, though, which are that the flag is a relatively harmless form of protection that has a lot of merit, but that the entry of the FCC into the world of copyright was not in any way a good one, and a voluntary industry solution would have been far preferable.

Whenever I think about this issue my mind returns to a March 2003 hearing on the subject. Few would argue that hearings offer much wisdom, but Lamar Smith and Howard Berman added to the discourse at this one (find transcript here). All the witnesses -- well, all except CCIA's Ed Black -- made logical, reasoned arguments. They sometimes contradicted each other, however, and sometimes contradicted the viewpoints of Smith and Berman, who like me want to protect IP but not through FCC overreach. That makes me feel less guilty about my own contradictory thoughts.

MPAA's Fritz Attaway explained the danger of sending unencrypted, high-definition programming over the airwaves. Without the flag, even a technophobe could port the program out of a recording device and on to the Internet. The Copyright Office's Mary Beth Peters noted that the flag didn't interfere with the viewing of the program or the ability to time-shift in one's own home. And the FCC's Ken Ferree insisted that the agency would "endeavor" to avoid entering the domain of copyright law. "Okay. Well, I hope you will not only endeavor, I hope you will actually do it," was Smith's reply.

Attaway (who will be one of our panelists at the broadcast flag Congressional Seminar May 20) said the only way to protect on-air was with the flag. Of course, from a technological perspective that's not true, but Attaway understands that better than I do. The problem here is that we have this archaic system of video transmission, the airwaves, and over-the-air TV under the law can't be encrypted. Thus cable and satellite systems can protect content in ways broadcasters can't.

So we have an outdated technology (broadcasting) operating under archaic rules (the Communications Act) attempting to distribute state-of-the-art programming (high-def TV) and freeing up spectrum for far more productive purposes (wireless broadband) while avoiding unauthorized distribution in a much wider distribution network (the Internet). Oh, how nice it would be to start from scratch, but Ray as a veteran regulator would be quick to point out to me the world doesn't work that way so there's no point expending intellectual energy on it.

The question becomes this -- does the need for the flag justify the expansion of the FCC's authority into an area of technology mandates? For Attaway the answer is obviously "yes," and I sympathize completely with his position. As for the successful petitioners in this case such as Public Knowledge's Mike Godwin (who also will be on our panel), I sympathize with their concern about FCC overreach but not with their actual complaint about the flag.

In a court-requested effort to prove standing in the case, PK rounded up anecdotes about potential harms people would suffer if the flag were imposed. PK presented the court with a choice -- either protect these high-def shows and harm these individuals and their eclectic uses of content, or protect the eclectic users and abandon protection. The court chose the latter (although I think their focus was on jurisdiction, not the merit of the flag itself).

If the question is only on the merit of the flag, I would support it. It does seem to be a relatively harmless protection. Also, if there are some individuals who would be harmed by the flag, there's an avenue for them. The U.S. Copyright Office has a review process where they can grant exceptions to the anti-circumvention portion of the DMCA, and they have granted some exceptions. PK and others would say they haven't gone far enough, but maybe it would have been more helpful to (1) wait and see if those predicted harms actually occurred and (2) go to the Copyright Office in search of a remedy before taking down the entire structure.

Now the ball is in Congress' court. I understand the workings of Congress far more than the FCC, having worked there and covered it. One thing I know is that nothing can be predicted. It's possible that opponents of the flag may find something far worse emerging from the Hill, and I'm sure it will be written in a way to inoculate the FCC -- or whoever is empowered to act -- from a court rejection.

Flag opponents apparently don't believe that some content won't be distributed if it can't be protected. Some of these opponents call themselves consumer advocates, and when they say this they often mean to say advocates for those who apparently can't speak for themselves. Those unable to afford cable or satellite TV could find themselves deprived of programming that pay services will provide. I can't imagine these consumer advocates want that.

There's still a way to get this problem solved without letting Congress do it for us, and without forcing the FCC to issue technology mandates. TR Daily just reported that CEA is urging a hard deadline for the DTV transition. How nice it would be if the CE industry would put its collective heads together in a standards body, then step forward and say "It is in our best interest, and in consumers' best interests, for the DTV transition to happen quickly, and for consumers to receive high-definition programming on their TV sets. Thus, all manufacturers have agreed voluntarily to incorporate flag technology in our hardware." Instead, PK and CEA get to sit back and watch the sausage-making process on the Hill.