Mr. Chairman,

 

I am glad you have called this hearing on the broadcast flag. This is an issue that has clear implications for copyright law, and should be closely scrutinized by this Subcommittee.

 

I understand that, as part of its broadcast flag rule-making, the FCC is currently deciding whether it even has statutory authority to implement the broadcast flag. I don't profess to be an expert on FCC jurisdictional statutes and precedent. Therefore, I don't presume to tell the FCC whether it has authority to implement the broadcast flag through a rule-making. Nor do I intend to lecture the FCC about the appropriate parameters of a broadcast flag technology.

 

As a policy matter, I have no problem with the FCC mandating use of the broadcast flag technology. While I am generally opposed to broad government mandates on technology, I have long considered it appropriate, in limited circumstances, for the government to require the use of certain technology around which a marketplace consensus has emerged.

 

For instance, I supported the Macrovision mandate codified in Section 1201(k) of the Copyright Act. I might even take credit for authoring it ten years before it passed. Through Section 1201(k), Congress required the inclusion of Macrovision's copy prevention technologies in certain videocassette recorders, camcorders, and other devices. Furthermore, I supported provisions of the Audio Home Recording Act of 1992 that required digital audio recording devices to utilize the Serial Copy Management System.

 

So I don't object to the concept that the FCC might require incorporation of the broadcast flag technology into appropriate hardware technologies and devices. That being said, I do have some concerns about the broadcast flag rule-making, and in particular, what some parties are asking the FCC to do.

 

Numerous comments have been filed asking the FCC to ensure that any broadcast flag technology allows consumers to make various uses of the digital TV programming it protects. These commentators purport to cite various copyright law doctrines, including Fair Use and First Sale, as guaranteeing consumer utilization of copyrighted TV programming in the ways they hope to protect. It is these claims about copyright law, and the role of the FCC in analyzing them, that gives me pause about the broadcast flag rule-making.

 

I am unaware of any precedent for the FCC interpreting the Copyright Act as part of an FCC rule-making, or in any other capacity. Nor am I aware, for that matter, of the FCC ever mandating that copyright owners surrender any of their exclusive rights to consumers.

 

Congress itself, in legislation moved through the House and Senate Judiciary Committees, has limited the rights of copyright owners when mandating use of technologies to protect copyright owners. In mandating use of the Macrovision technology, Congress ensured that it could not be used to prohibit copying of most analog, over-the-air television broadcasts. Similarly, in mandating use of the Serial Copy Management System, Congress ensured that it could only be used to prohibit copying from copies, but not to prohibit copying an original digital audio recording. At least in part, Congress decided to limit these technology mandates in these ways so as to protect the traditional ability of consumers to make certain uses of the copyrighted works at issue.

 

While Congress itself has placed limitations on the exclusive rights of copyright owners in the course of mandating certain technologies, I am unaware of any precedent for a federal agency doing so.

 

About the closest precedent involves the Copyright Office, not the FCC. In the course of its triennial rule-making under Section 1201(a)(1)(C) of the Copyright Act, the Copyright Office is empowered to analyze whether the anti-circumvention provisions of the DMCA are adversely affecting non-infringing uses of copyrighted works. If the Copyright Office finds such adverse effects, it is empowered to create limited exemptions from the anti-circumventions provisions to protect the adversely-affected non-infringing uses.

 

While the Copyright Office's DMCA rule-making provides some parallels to the broadcast flag context, it is in many ways inapposite. The Copyright Office is an agency that has tremendous experience with interpreting copyright laws, and is explicitly required by the DMCA to engage in the triennial rule-making. The FCC has no such copyright law experience of which I am aware.

Based on this history, or lack thereof, I am opposed to the FCC attempting to interpret, regulate, or otherwise limit the exclusive rights of copyright owners in the course of its broadcast flag rule-making. Many commentators in the broadcast flag proceeding present novel and unsupported interpretations of copyright law, including the fair use and first sale doctrines. The FCC's lack of experience with copyright law make it ill-suited to determine which commentators' interpretations of copyright law are correct. Without an explicit mandate from Congress, vetted through the Judiciary Committees, the FCC should not issue interpretations of copyright law or attempt to define the contours of the fair use and first sale doctrines.

 

As I stated before, the FCC may well have jurisdiction to mandate a broadcast flag technology, and to establish rules regarding the implementation of that technology, as part of its authority to facilitate the digital television transition or under some other statutory authority. Under the same authority, the FCC may be able to mandate that the broadcast flag technology provides only limited protection to digital television broadcasts.

 

My point is simply that the FCC should not attempt to interpret copyright law in the course of its rule-making, nor to encapsulate copyright law doctrines in any technology it mandates.

Thank you, Mr. Chairman, and I yield back the balance of my time.