Senators and Broadcast Flags

senator dianne feinstein mishandling an assault rifle

Following is my response to an email sent to the staff of Senator Dianne Feinstein (D-CA). It was addressing legislation regarding the broadcast flag. If I actually get a response to my talking points, I will add it here. (Nothing as of August 23, 2006.) I have not edited any text, only inserted formatting. (Preformatting text often has poor results.)

I appreciate the time your staff sent sending me this form letter; I have only limited agreement with it. I will explain my points below; I will try not to be excessively lengthy and so I would appreciate it if someone would read it.

On 8/2/06, senator@feinstein.senate.gov wrote:

August 2, 2006

Mr. Martin Espinoza
(Address Deleted)

Dear Mr. Espinoza:

Thank you for writing to me about the digital broadcast flag. I appreciate hearing from you.

I feel strongly that we must prevent the theft of copyrighted works, and that includes digital television (DTV) programming. As we move forward in the digital age, it is increasingly easy for unauthorized copies of copyrighted works to be made and illegally distributed. Over-the-air digital content is the easiest to pirate.

First of all, I would like to address the use of the word "pirate". Using this word is a blatant attempt to manipulate the mental state of the reader. The RIAA and MPAA are adamant about using this term because of the feelings it conjures up in the average reader. We have several terms that apply directly to this activity; the most factual and honest is "copyright infringement".

Second, there are good reasons to copy OTA content. We the citizens of the US have repeatedly been shown, under fair use law, to have the right to perform format and time shifting, to allow us to view content on devices for which it was not distributed, and to allow us to watch a program at a later time. Combining a broadcast flag with the provisions of the DMCA that do not allow the use of a device to permit the bypass of so-called copy protection is a violation of my rights as a citizen.

As we contemplate the use of new technologies to protect copyrighted works, we must pay careful attention to ensure that a balance is struck between competitive protections and individual consumer interests. It is important to allow for the continued fair use of copyrighted material, even while we seek to stop unauthorized reproductions from being illegally distributed outside the home and over the Internet.

The broadcast flag simply will not prevent copying of copyrighted material. Any system designed by humans can be disassembled and reverse-engineered by other humans. It is literally impossible to deliver media to someone in such a way that it can not be copied, and given ubiquitous communications once one person is able to copy the content, any individual can do so. Thus, the broadcast flag provides benefit only to electronics manufacturers. Ostensibly, it will also assist the MPAA, but only in that persons who have bypassed the flag for illegal purposes will also potentially be punshed for violations of the DMCA. However, as we have seen throughout history, criminalization of an activity does not prevent it any more than the police can prevent crime.

Again, thank you for writing. Please know that as the Senate considers legislation of the broadcast flag, I will be sure to keep your views in mind. If you should have any questions, please feel free to contact my Washington, DC staff at (202) 224-3841.

Oh, I do have a question: In what way do you imagine that the broadcast flag will actually help prevent copyright infringement? It is spoken of here as if it could make a difference, which it patently cannot.

Note that I responded to the email instead of calling - why would I want to handle this issue on a telephone?

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