Federal Communications Commission
Washington, DC 20554
In the Matter of
Digital Broadcast Copy Protection
MB Docket No. 02-230
JOINT COMMENTS OF THE AMERICAN LIBRARY ASSOCATION, THE
AMERICAN ASSOCIATION OF LAW LIBRARIES, THE ASSOCIATION OF
RESEARCH LIBRARIES, THE MEDICAL LIBRARY ASSOCIATION, AND
THE SPECIAL LIBRARY ASSOCIATION
Professor Peter Jaszi
Professor Richard Ugelow
Intellectual Property Clinic
4801 Massachusetts Avenue
Washington, DC 20016
DECEMBER 6, 2002
Counsel for The Library Assoc.
Any broadcast flag rule adopted by the Commission could effectively limit the
publicís access to information, and impair its ability to use content in new and innovative
ways. Libraries serve the needs of millions of members of the public every year with
information resources ranging from traditional books and print media, audio and
videotape collections, electronic resources, and the Internet. Libraries are a primary
source of information for under-served populations such as remote rural communities,
recent immigrants, the poor, and the homeless. The public uses information obtained
through libraries for teaching, study and scholarship purposes, and to create new works
that benefit our society as a whole. Libraries function today because of important general
exceptions and library specific exceptions in the copyright law that control the use of
content. It is imperative that such limiting principles be maintained in any regulation of
the digital information environment.
The digital revolution has allowed libraries to provide services to more members
of the public than ever before, and to create innovative programs using technology to
educate the public. The benefit of such technologies should not be restricted by a
premature rule that limits new and innovative uses. As digital capabilities expand, rights
holders have proposed and in some cases have imposed restrictive technological
protection measures on content, limiting the ability of libraries to serve the publicís
needs. A broadcast flag rule could accelerate this trend by imposing a government
mandate, requiring the use of a particular content protection technology, and likely
setting a dangerous precedent for the future regulation of content use.
These comments are filed in response to the FCC Notice of Proposed Rulemaking
regarding Digital Broadcast Copy Protection (MB Docket No. 02-230) (hereinafter
NPRM) on behalf of five major library associations: the American Library Association,
the American Association of Law Libraries,
the Association of Research Libraries,
Medical Library Association,
and the Special Libraries Association
Libraries). These associations represent the interests of tens of thousands of libraries,
the patrons who benefit from their services,
and the librarians who serve them.
A. Libraries Provide Services For The General Public Which Extend Beyond
Traditional Print Resources
Library patrons today are no longer limited to the printed word as their sole
resource for information. Increasingly, patrons access content from diverse media
The American Library Association is a non-profit, educational organization of approximately 61,000
librarians, library educators, information specialists, library trustees, and friends of libraries representing
public, school, academic, state, and specialized libraries.
The American Association of Law Libraries is a non-profit, educational organization of over 5,000
members. Its members respond to the legal information needs of legislators, judges, and other public
officials at all levels of government, corporations and small businesses, law professors, students, attorneys
and the general public.
The Association of Research Libraries is a non-profit association of 124 research libraries in North
America including university, public, government, and national libraries whose mission is to advance the
future of research libraries in the process of scholarly communication.
The Medical Library Association is an educational organization of more than 1,000 institutions and 3,800
individual members in the health sciences information field.
The Special Libraries Association is an international association representing the interests of thousands of
information professionals in over seventy countries, including the United States. Its members collect,
analyze, evaluate, package, and disseminate information to facilitate accurate decision-making in corporate,
academic, and government settings.
See American Library Association , How Many Libraries Are There In The United States? , Library Fact
Sheet Number One at http://www.ala.org/library/fact1.html (stating that there are an estimated 117,418
libraries of all kinds in the United States today).
See Chute et al., Public Libraries in the United States; Fiscal year 1999 (NCES 2002-308), National
Center for Education Statistics (reporting that in the year 2000, visits to public libraries alone totaled
1,146,284,000, or 4.3 per capita).
In addition to the common practice of borrowing books, todayís patrons
regularly use their libraries to access video resources, electronic publications,
archives, and the Internet.
Many public, school and academic libraries today also consider themselves media
centers housing (in addition to printed content) computers, personal video recorders,
DVD players, televisions, and the content they are used to access.
These centers are an
important content resources for library patrons. Thus, students and teachers use media
centers to create multimedia projects to instruct or to perform assignments.
example, a teacher may use excerpts from news coverage of the 2000 Bush/Gore election
for a social studies lesson, or a student may use a recorded segment from ìThe Lost
Elephants of Timbuktuî episode of Wild Kingdom in her presentation for a conservation
project in her environmental science class.
New media technologies offer vast opportunities for libraries and other
educational organizations to make content available to users. For example, medical
students can use digital video technology to observe operations or participate in clinical
See id. (stating that public libraries alone house more than 32 million audio materials and 22 million video
Examples of periodicals only available in an electronic format include Techlaw, the Electronic Journal of
Sociology and the Electronic Journal of Linear Algebra.
See Chute et al., supra note 8 (reporting that in 1999, 92 percent of public libraries had access to the
See Bradford Chaney, National Center for Education Statistics, School Library Media Centers: 1993-94
(NCES 98-282) (noting that in 1993-4, 96 percent of public schools and 80 percent of all private schools
had library media centers, compared with 50 percent of the public schools in 1950 and 44 percent of private
schools in 1962).
See American Library Association, Partner in Learning: The School Library Media Center, available at
www.ala.org/pio/factsheets/schoolmedia.html (observing that students visit school library media centers
almost 1.5 billion times during the school year). Specifically, 47 million elementary, middle, and high
school students use a library media center each week. Id. The study also notes that the highest achieving
students come from schools with strong school libraries. Id.
rotations from remote locations.
Through the University of Hawaiíi Hilo, students on
remote islands are using distance education techniques such as videoconferencing to
obtain degrees in Hawaiian studies and computer science.
Students across the
continental U.S. may also take elementary Hawaiian language classes at the University of
Hawaiíi over the Internet, thereby allowing Hawaiians who have left the islands to
maintain a crucial link to their native culture.
School, public and academic libraries
often supply the content needed by these educational initiatives.
Additionally, libraries act as valuable resources to underserved populations
the poor, and others through services offered at
the library, and through various forms of outreach. In the past, Americaís libraries
reached out by establishing branches in urban neighborhoods or rural communities. Even
then, however, some potential patrons were not able to avail themselves of library
resources. So libraries took further steps, including the familiar bookmobiles that provide
services to patrons who may not be able otherwise to get to a library. Today, an ever-
growing number of children and adultsórich and poor, urban and ruralóhave access to
See Philip O. Ozuah, Undergraduate Medical Education: Thoughts On Future Challenges, BMC
, July 30, 2002, available at www.biomedcentral.com/1472-6920/2/8.
See Press Release, University of Hawaii at Hilo, UH-Hilo to Award First Four Distance Learning
Degrees released May 13, 2002 available at www.uhh.hawaii.edu/news/2002/02-5-13a.html.
See Michele Delio, Aloha, Youíve Got Hawaiian 101, W
, Sept. 6, 2002 available at
www.wired.com/news/culture/0,1284,54938,00.html (noting that for the first time an indigenous language
will be taught solely over the Internet).
See National Center for Education Statistics, Services and Resources for Children and Young Adults in
Public Libraries (Aug. 1995)(finding that 64 percent of public libraries currently have young adult
materials in languages other than English). The Queens Borough Public Library has developed extensive
programs that cater specifically to the areaís immigrant population, using print media, electronic resources
and the Internet to not only provide access to materials in peoplesí native languages but also to assist them
with their English as a Second Language programs. See Queens Borough Library, New Americans Program
Services at www.queenslibrary.org/programs/nap/nap_services.asp.
See American Library Association, Americaís Libraries and the Homeless, at
www.ala.org/pio/factsheets/homeless.html (explaining that the San Francisco Public Library and the Free
Library of Philadelphia provide library cards to the homeless as well as those with permanent addresses).
Libraries also provide extensive programming for children, including story hours and films, at city shelters
for the homeless. Id.
the Internet at home, school, work, or some other location. As a result, libraries can now
bring an even wider range of information resources to underserved patrons via these
networks. As Congressman W.J. Billy Tauzin framed the question during the
congressional hearings on the Digital Millennium Copyright Act
I grew up in a bookmobileÖ. Every Tuesday the bookmobile came to
Chatville, Louisiana and my mother and I would go into that bookmobile
and we would borrow every single book they would allow us to borrowÖ
It was literally my entry into the world of education in a real sense, living
on a bayou in LouisianaÖ. [Now] I want to deal with the real hypothetical
where the library in Thibodaux, under the new digital world [owns] a book
digitally. And I want to borrow it in Chackbay, and I want to contact my
library, borrow that book and read it. Can I do that in this world without
someone requiring me to pay for that right?
Hearing on the WIPO Copyright Treaties Implementation on H.R. 2281 Before the House
Energy and Commerce Committee, Subcommittee on Telecommunications, Trade and
Consumer Protection, 105
If this mission of Americaís libraries is to be fulfilled, the answer to the
Congressmanís question must be ìyes.î Premature or ill-considered implementation of
the broadcast flag should not impede the realization of the new potential for outreach by
libraries that digital technology promises.
B. The Libraries Are Advocates Of The Publicís Interest In The Legal And
The Libraries advocate for policies and laws that support broad access to
information. This reflects their membersí strong commitment to principles of free
speech, the publicís right to receive information, the advancement of education and
scholarly research, lifelong learning, and preservation of our nationís cultural heritage.
As the Commission is aware, the Libraries participated in the E-Rate rulemaking and
See Digital Millennium Copyright Act, Pub. L. No. 105-304, 1122 Stat. 2860 (effective Oct. 28. 1998).
increased community access to low power FM radio rulemaking.
The Libraries have
also been advocates for the public interest in access to information and in the debate
regarding digital rights management (hereinafter DRM). This rulemaking is of great
importance to the Libraries because depending upon its outcome, there may be
restrictions on librariesí ability to carry out their missions.
The broadcast flag would grant private copyright owners what are effectively
additional intellectual property rights in their content by restricting the rights of users to
lawfully use and excerpt that content. This proposed grant of additional rights is justified
in the NPRMís introduction by the assumption that high quality digital content providers
will not provide content for digital television unless the Commission makes a rule
mandating broadcast flag copy protection. Leaving aside the question of whether this is a
valid assumption, it is in itself an insufficient justification, as it ignores the losses in
public information access that such a concession of additional intellectual property rights
to private parties would entail. The Commission must consider whether such a rule is
truly in the public interest especially, where as here, such determinations have
traditionally been within the purview of Congress.
C. The Broadcast Flag and Digital Rights Management
The Libraries are concerned about proposed technological restrictions that would
limit the ability of libraries and their patrons to use digital broadcast content for teaching,
study, and scholarship. Such restrictions, if not subject to appropriate exceptions or a
See American Library Association, Comments Regarding FCC Notice of Proposed Rule Making-MM
Docket No. 99-25) (arguing in favor of the creation of low power radio services). The Libraries have also
submitted numerous written comments to the Commission regarding the E-Rate program, which are
available in their entirety at www.ala.org/oitp/telcom/hearingsus.html.
legal means to bypass them for legitimate purposes, would limit or eliminate some of the
services that libraries provide to the public.
1. What is the broadcast flag?
Literally understood, the term broadcast flag refers to a signal that may be
imbedded in digital broadcast content. The signal is designed to interact with equipment
that is engineered to recognize it. Where it is present, the signal serves to regulate
performance of such equipment. As the term is generally used, and as we use it here,
broadcast flag refers to both the signal itself and the larger system of technology that
grants content providers the ability to impose restrictions on the publicís legal use of
The broadcast flag could be implemented in many different ways. It could be
used to control: what digital broadcast content can be recorded by recipients; when,
where, and how recorded content may be viewed; and whether such content can be
manipulated by a recipient, transferred to other storage media, or shared beyond the
location where it was originally received. Other even more intrusive applications of
broadcast flag may be possible, such as monitoring locations where content is received,
recorded, and used. The Libraries are concerned that a Commission rule mandating any
or all of these broadcast flag applications will have an adverse impact upon their ability
to provide content to their patrons, and their patronsí ability to make lawful use of it.
2. The Benefits Of The Broadcast Flag Have Not Been Demonstrated
The NPRM suggests that the broadcast flag rule is needed to encourage content
See Drew Clark and Bara Vida, Digital Divide, N
, Sept. 6,
2002 (discussing the technological components of the broadcast flag). The explanation of the broadcast flag
in the preceding text represents our effort to explain in lay language a concept that is often discussed in
provision for the rollout of digital television.
Specifically, content owners have
indicated that they will withhold content from, or refuse to develop content for, digital
television unless they are given additional legal and technological protection against what
they consider to be the potential for the unlawful use and distribution of their materials.
This argument has been made before, and seems to surface with each new technological
advance in consumer information technology.
During the policy discussions surrounding the introduction of consumer video
recording technology, content owners asserted that the new technology would be
disastrous to the industryís profitability.
Specifically, content owners claimed that if
the public was allowed to record broadcast programs on their home recording equipment
to watch later, there would be a diminished market for motion picture content on
The movie industry argued that if it were denied profits from this
market, the result would be a reduction in new motion picture production.
home taping constituted copyright infringement, they sought to bar consumer use of the
However, as the rollout of the VCR continued, it became apparent not
only that the doomsday fears of content providers were misplaced, but that the opposite
was true: the advent of personal video recorders created an entirely new market for
highly technical terms. See generally Final Report of the Co-Chairs of the Broadcast Protection Discussion
Subgroup to the Copy Protection Technical Working Group (June 3, 2002).
See FCC Notice of Proposed Rulemaking, In the Matter of Digital Broadcast Copy Protection, MB
Docket No.02-230 (citing to Letter from Susan L. Fox, Walt Disney Company, to Magalie Roman Salas,
Secretary, FCC, CS Docket No. 97-80 (Nov. 8, 2001).
97-104 (rev. ed. 2002)(discussing the fears of movie studios
that the development of the VCR would allow individuals to consume content without paying a premium or
archive it for repeated use).
See id. at 98-99 (explaining how personal recording devices would hinder the profits from a movieís sale
to television networks for broadcast). The movie industry believed that the VCR would prevent it from
being able to exploit every potential market, assuming that once people had VCRs they would tape
everything from television and thus content would only be able to be shown once for profit. Id.
This result occurred because the Supreme Court saved this industry
from itself and held in Sony v. Universal Studios that the sale of the personal video
recorder did not constitute a copyright violation.
The Court determined that consumer
use of the technology posed no substantive threat to content ownersí copyrights because
the most likely uses, such as time-shifting,
were protected under the fair use exemption
of copyright law.
Just as the hyperbole of the movie industry proved baseless in the personal video
recording debate, the content ownersí claims that broadcast flag is a real precondition for
the availability of digital broadcast content is not supported by any empirical evidence.
Thus, it is unclear that a broadcast flag rule is justified or that it would provide any
benefit to the general public.
3. The Broadcast Flag Represents A Shift In the Direction of DRM Policy
In 1998, Congress passed the Digital Millennium Copyright Act,
sanctions against those who circumvent technological measures applied to copyrighted
works. Congress did not then mandate, nor has it since, specific technological controls or
their incorporation into digital electronic equipment.
Nevertheless, the Commission is
See id. at 92-95 (discussing the motivations of both parties in the Sony v. Universal lititgation).
See id. at 173-188 (tracing the development of the home video rental market).
464 U.S. 417, 500 (1984).
See id. at 423 (explaining that both parties in the case presented surveys which concluded that most
people used their VCR to record programs that they missed to watch at a different time than they were
Id. at 500.
Pub. L. No. 105-304, 1122 Stat. 2860 (1998).
Sec. 1201(k)(1) of the DMCA contains only one, narrowly limited technology mandate, directing that
new analog videocassette recorders must conform to the ìautomatic gain control technologyî ó i.e. the
ìMacrovisionî copy control system. The Conference Report on the DMCA states that ìthis provision is
being included in this bill in order to deal with a very specific situation involving the protection of analog
television programming and prerecorded movies....î H.R. Rept.105-791, 105th Cong., 2d. Sess. 68 (1998).
This provision has no application to digital content or digital technology. The only other congressional
venture into this domain was the 1992 Audio Home Recording Act, 17 U.S.C. Secs. 1001-1010, legislation
which was possible only because it represented a carefully negotiated compromise between representatives
considering whether to promulgate a broadcast flag rule that will create a government
mandate that specific technology be incorporated in a range consumer electronics
equipment. Such a mandate could diminish significantly the usefulness of new digital
technologies for libraries and the public at large.
A Commission rule on the broadcast flag would determine not only whether this
digital rights management technology will be mandated, but also how it would be
deployed. The technology in its most basic form functions as an ìon/offî switch,
regulating the functioning of consumer electronics equipment. As we have noted, the
broadcast flag could block certain uses of digital television content. The switch also
could be adjusted to discriminate between specific types and forms of content, limiting
librariesí and their patronsí uses with respect to some programs while permitting them
with respect to others.
The flexibility of the technology may allow for exceptions that
approximate the traditional balance inscribed in copyright law. However, that same
flexibility also means the broadcast flag is ripe for abuse, allowing content owners to
predetermine and control consumer use in disregard of basic copyright principles.
Therefore, any rule implemented by the Commission must be carefully crafted to protect
legal use of content by the public.
of affected industries. See generally Lewis Kurplantzick & Jacqueline Pennino, The Audio Home
Recording Act of 1992 and the Formation of Copyright Policy, 45 J. C
497 (1998). That
compromise has not been revised by subsequent legislation.
See Adrien Bettelheim, Hill Contemplates Copyrights: Does Innovation Trump Piracy?,
, April 6, 2002, at 899-900 (explaining the function of the broadcast
THE FUNDAMENTAL LIMITATIONS AND EXCEPTIONS IN
COPYRIGHT LAW ALLOW LIBRARIES TO PROVIDE PUBLIC
ACCESS TO INFORMATION
The broadcast flagís implementation threatens the well-established limitations and
exceptions in copyright law that balance the exclusive rights of content owners with the
rights of the public to access and use that content. Copyright law, which is founded in
represents a balancing of incentives to create and to provide public
access to ideas and content.
The Constitution empowers Congress to enact copyright
legislation for the specific purpose of promoting scientific progress and the arts by
granting exclusive rights in works to the authors and artists for a limited duration.
Pursuant to this public purpose, the Copyright Act
grants rights holders the exclusive
right to make copies of their works
and distribute them,
while at the same time, these
exclusive rights are narrowed by limitations and exceptions in copyright law, designed to
foster innovation and promote non-profit personal and educational use. Libraries and
their patrons benefit from these generally applicable limitations and exceptions. In
addition, Congress has seen fit to create specific copyright exemptions for libraries that
further enable them to provide patrons with information access.
See U.S. C
. art. I, ß 8, cl. 8 ( ìCongress shall have power Ö To promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveriesî).
See Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (holding that ì[c]reative work is
to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad
public availability of literature, music, and the other artsî).
17 U.S.C. ßß 101-803
17 U.S.C. ß106(1)
17 U.S.C. ß106(3)
A. Fair Use
The doctrine of fair use allows culturally valuable new uses of portions of
copyrighted works to be made without permission.
In determining whether a particular
use falls within the fair use doctrine, the court looks at four factors.
First is the
ìpurpose and character of the use, including whether such use is of a commercial nature
or is for nonprofit educational purpose.î Second is ìthe nature of the copyrighted work.î
Third is ìthe amount and substantiality of the portion used in relation to the copyrighted
work as a whole.î Fourth, there is ìthe effect of the use upon the potential market for or
value of the copyrighted right.î The public relies on the fair use exemption to use content
from works in library collections. Thus students are allowed to photocopy pages from a
book and quote passages, or to excerpt a video clip from a recorded educational
broadcast. These are lawful activities that government regulation should foster, rather
Fair use is a flexible doctrine, affirmed by Congress in the 1976 Copyright Act,
designed to evolve with changes in technology and consumer information practices.
Implementation of the broadcast flag risks rolling back or even eliminating the doctrine
as applied to digital media. In Sony v. Universal, the Supreme Court recognized that new
technologies can enable fair use.
Unless they are created for the unambiguous purpose
of copyright infringement, the public interest dictates that such new technologies should
See generally Sony v. Universal, 464 U.S. 417. See also 17 U.S.C. ß107 (providing the fair use
exemptions in copyright law).
17 U.S.C. ß107
464 U.S. 417.
not be suppressed.
Many technologies now exist, or soon will exist, that will allow the
active, productive use of content received by means of digital television transmission.
There is simply no legal or factual justification to restrict the lawful use of such content.
Imagine a family living in a rural area of the Midwest and the benefits they enjoy
under traditional copyright exceptions, including fair use. Under current copyright law,
the following educational and non-profit practices are allowed. The mother, who
volunteers in an ìEnglish as a second languageî course offered by a public library, uses
video clips from a Spanish television show to illustrate lessons. The twelve-year-old son
uses his school library to find media coverage from the 2000 presidential debate for a
presentation in his civics class. The sixteen-year-old daughter sends highlights of her
recent performance in a high school softball game, covered by the local television station,
over the Internet to her grandfather. Under the broadcast flag, all these otherwise lawful
and beneficial practices would be at risk.
B. Availability Of Facts And Works In The Public Domain
Copyright law does not protect facts, or ideas, or material that is in the public
This kind of content does not belong to copyright owners; rather, it is the
common property of the public at largeówhether it is a list of map references, a
mathematical equation, the text of an Elizabethan drama, or a scene from a classic silent
motion picture. Often, however, such information is found embedded in works that do
enjoy some degree of copyright protection in their other contents, such as literary
See id. at 431-32 (stating the that ultimate goal of copyright law is the public benefit ìderived from the
labors of authors,î thus ìwhen technological change has rendered its literal terms ambiguous, the
Copyright Act must be construed in light of this basic purposeî).
anthologies or educational television programs. In other words, many copyrighted works
- whether printed texts or broadcasts-contain significant amounts of unprotected content
with considerable educational or cultural value. Under traditional copyright law, readers
and viewers are permitted not only to read or view this unprotected material, but to
capture it for reuse. In order to do so, however, they must be able to access and
manipulate the protected work in which it is contained so as to extract the unprotected
portions. Again, traditional copyright law has always allowed for such practices.
contrast, DRM systems in general, and potentially the broadcast flag in particular, work
by locking up entire works and making it difficult or impossible for users to access their
content. In this way, these technological locks create an effective absolute monopoly
over information where traditional copyright provides only a conditional one.
If libraries and their patrons cannot access, copy, or manipulate digital television
programs, their ability to extract and use unprotected material may be severely limited, as
a practical matter. Users will be restricted to second-best alternatives, such as attempting
to recreate the content, after the fact of viewing it, a process that is at bets inefficient and
at worst inaccurate. This presents a large potential burden on legal, productive
C. Preservation and Archiving.
Traditional copyright law recognizes the importance of librariesí role in education
and the promotion of progress. It is critical that any broadcast flag rule should do
The public domain includes works made freely available to the public, including most works made by the
government, and those works whose term of copyright protection has expired.
Feist Publications v. Rural Telephone Services Company, 499 U.S. 340 (1991) (stating that while the
organization of facts may be copyrighted, the underlying facts may not.)
likewise, and provide appropriate exceptions to enable and not stifle library activities. In
traditional copyright law, some of librariesí important institutional practices, such as the
long-term preservation of the cultural record, receive explicit recognition in sections of
the Copyright Act that provide a specific library exemption, such as 17 U.S.C. ß108.
A case in point is the archiving of broadcast material. Today, libraries throughout
the United States may record and store television programming for a limited period of
For example, the Television News Archive at Vanderbilt University, a unit of the
Jean & Alexander Heard library, has long operated by virtue of a specific statutory
exemption that allows the archiving and limited circulation of copies of news
This archive contains more than 30,000 individual network evening news
broadcasts and more than 9,000 hours of special news-related programming. It allows
researchers and students to conduct comparative media studies such as coverage of the
Persian Gulf War versus the war in Rwanda. The archive is also used to research
changes in public opinion, dress, and social trends, and by the broadcasters themselves to
do research for news stories. But the holdings of these archives can be fully useful for
study purposes only if they are also available away from the physical site where they
were recorded. Vanderbilt, for example, will create tapes of requested news broadcasts
for the use of scholars who live far from Nashville. Today, copyright law allows such
content sharing. Under the broadcast flag, by contrast, the availability of lawfully
archived digital broadcasts would be dramatically limited.
17 U.S.C. ß108 provides the exemptions in copyright law that libraries rely upon to fulfill their archiving
and preservation functions.
See American Library Association, 30 Questions Librarians Ask about Taping Copyrighted Television
Programs for Educational Use 11 (1982) (explaining the guidelines for copies made for specific purposes).
See generally About the Archive at www.tvnews.vanderbilt.edu/about.html. The ìVanderbilt Clauseî is
found at 17 U.SC. ß108(f)(4).
D. Distance Education
A broadcast flag rule may also prevent libraries from performing their educational
roles, such as through digital distance learning. The Technology, Education And
Copyright Harmonization Act (TEACH) Act, which became law on November 2, 2002,
is intended by Congress to enhance learning capabilities through technology and media.
According to Senator Orrin Hatch, this Act is part of a ì comprehensive education reform
that . . .deploy[s] the latest digital technologies to give our students the very best
educational experience we can offer.î
The Act also ìallow[s] students and teachers to
benefit from deployment of advanced digital technologies like the Internet and bring
media-rich learning experiences wherever students are located.î
The law enhances the
learning process by expanding exemptions under copyright law to permit Internet use of
audiovisual and sound recordings, among other things. A broadcast flag, however, would
hinder precisely what the TEACH Act is designed to promote. For example, an educator
who wishes to use excerpts from a television news program to illustrate a lesson in the
electronic classroom might not be able to record the program, nor to incorporate the
material into a lesson designed for students in a class whose access is through the
Internet. As Senator Hatchís comments demonstrate, an important theme in
contemporary educational reform is the need to share the full benefit, rather than restrict
Technology, Education And Copyright Harmonization Act, Pub. L. No. 107-273 (Nov. 2,2002). See
generally Kenneth D. Crews, New Copyright for Distance Education: The Meaning and Importance of the
TEACH Act, available at www.ala.org/washoff/teachsummary.pdf. See also Laura Gasaway, Balancing
Copyright Concerns: The TEACH Act of 2001, E
, Nov.-Dec. 2001.
Press Release, U.S. Senate Judiciary Committee, Statement of Orrin G. Hatch on the Markup of S. 487,
the Technology, Education and Copyright Harmonization Act (May 17, 2001). Senator Hatch also noted
that ìthe benefits of online or distance education extends beyond the traditional student making expanded
opportunities available for working parents, senior citizens, and anyone else with a desire to learn.î Id.
the use, of digital technology. A broadcast flag rule would prevent the realization of this
THE COMMISSION IS WITHOUT JURISDICTION TO PROMULGATE
A BROADCAST FLAG RULE
The Libraries believe that the Commission lacks the jurisdiction to promulgate a
rule for the broadcast flag that will in effect limit the distribution of content and could
disrupt the balance between rights holders and the public.
A. The Commission Lacks Statutory Authority To Promulgate The Rule
In proposing to adopt a rule on the broadcast flag, the Commission is going
beyond the realm of technical standards for digital television that it has explicit statutory
authority to regulate, and entering the realm of intellectual property. As shown earlier in
these comments and as the Commission acknowledges in the NPRM,
the broadcast flag
rule addresses content. Indeed, the origin of the rule is to encourage the development of
content for digital television.
As such, a broadcast flag rule would be in tension with
copyright legislation that defines the rights of content owners and content users.
The Libraries believe the Commission lacks the authority to regulate the rights of
content users to use copyrighted material in the absence of unambiguous statutory
authority. That authority does not exist. Moreover, there is nothing in the text of the
Telecommunications Act of 1996 that would even arguably confer authority on the
See FCC Notice of Proposed Rulemaking, In the Matter of Digital Broadcast Copy Protection, MB
Commission to promulgate this rule. The Commission admits that its authority to
regulate in this area is ambiguous at best because it specifically requested comment on its
authority to do so.
In particular, the Commission relies upon 47 U.S.C. ß336(b)(4) and ß336(b)(5) as
possible sources of authority for the rule. Neither provision provides that authority.
Section 336(b)(4) grants the Commission authority to promulgate rules to assure
signal quality for advanced television services.
There is not, nor could there be, a
claim that the broadcast flag would enhance the signal quality of digital television.
Therefore, this Section does not authorize the Commission to promulgate a rule.
The Commissionís jurisdiction fares no better under Section 336(b)(5). This
section of the statute addresses the preservation of effective broadcast television for
advanced television services that is consistent with protecting the public interest. Again,
there is nothing on the face of this provision that would authorize a rule that regulates the
content of the broadcast. Indeed, we are unable to find anything in the legislative history
of the Act that suggests that the Commission would have such authority. Both the House
Report and Conference Committee reports on Public Law 104-104 are completely silent
on the purpose of Section 336(b)(5).
On the other hand, the reports go into some detail
on the purposes of sections 336(b)(1)-(4), which deal with spectrum regulation, signal
quality, and the duties of licensees. Thus, when this provision is read in the context of
See FCC Notice of Proposed Rulemaking, In the Matter of Digital Broadcast Copy Protection, MB
See 47 U.S.C. ß336(b)(4) (providing that ìthe Commission shall adopt such technical and other
requirements as may be necessary or appropriate to assure the quality of the signal used to provide advance
See H.R. R
. 104-204 at 1117 (1995). See also H.R. C
. 104-458 at 160 (1996).
the statutory purpose, there is simply no basis to conclude that Section 336(b)(5) gives
the Commission statutory authority to regulate in the area of content.
The Commissionís authority to regulate in the area of content is further placed in
doubt by the recent decision in MPAA v. FCC.
There, the DC Circuit Court of Appeals
held that absent an explicit delegation of authority from Congress, the Commission does
not have the jurisdiction to regulate program content.
Furthermore, the court found that
even if the FCCís efforts can be considered to be in the public interest, the Commission
does not have jurisdiction unless specifically provided for by statute.
lacks the authority to promulgate a rule, such as the broadcast flag, which would burden
the lawful access to and use of content.
B. The Commission Should Decline To Make Intellectual Property Law In The
Form Of A Broadcast Flag Rule.
In general, the legal regulation of DRM technology implicates a wide range of
politically and constitutionally sensitive issues, including the economics of the
information industries, cultural policy, privacy and freedom of expression. It is also a
topic on which various interested groups in society hold strongly opposed positionsó
some favoring greater access to information and others advocating more restrictions on
information use. The point of convergence where such disparate issues are harmonized
and such divergent interests are balanced always has been the federal law of intellectual
property, enacted pursuant to the U.S. Constitution, Art. I, Sec. 8. cl. 8. From the mid-
See MPAA v. FCC, 2002 U.S. App. LEXIS 23225 (D.C. Cir. 2002).
See id. at *13 (stating that neither 47 U.S.C. ß713 or Title 1 of the Communications Act of 1934 grants
the FCC authority to promulgate a rule on programming content).
Id. at *29.
1990ís on, Congress has treated DRM questions as a highly controversial aspect of
intellectual property policy, uniquely well suited to resolution by the political process.
The long history of legislative activity that gave rise to 17 U.S.C. ß1201, the anti-
circumvention provisions of the DMCA, exemplifies this deliberate approach.
one minor exception, Congress has not chosen to delegate any of its legislative authority
in this area,
let alone to the Commission. Instead, the congressional debate continues.
As we have noted above, the broadcast flag proposal represents a radical and
unprecedented expansion of this new form of intellectual property regulation. If adopted,
it would be the first general mandate of a DRM technology. In such a rule, the
Commission would be choosing to go where Congress itself has so far feared to tread;
indeed, the very concept of DRM mandates has proven highly controversial in Congress
and in the larger community.
We also would note that any broadcast flag rule issued by
For lively reviews of the legislative history, see generally David Nimmer, Puzzles of the Digital
Millennium Copyright Act, 46 J. C
401 (1999); A Riff on Fair Use in the Digital Millennium
Copyright Act, 148 U. P
. L. R
. 673 (2000); Appreciating Legislative History the Sweet and Sour Spots
of the DMCAís Commentary, 23 C
. 909 (2002).
17 U.S.C. 1201(a)(1)(C) confers on the Librarian of Congress, acting upon the recommendation of the
Register of Copyrights, the delegated authority to make certain narrowly circumscribed exceptions to the
anti-circumvention provisions of ß1201(a)(1)(A), though not those of ß1201(a)(2) or (b)(1). See JeanAne
Marie Jiles, Copyright Protection in the New Millennium: Amending the Digital Millennium Copyright Act
to Prevent Constitutional Challenges, 52 A
. L. R
. 443 (2000) (questioning the legality of the
delegation). For the results of the first rulemaking under this provision, see ìExemption to Prohibition on
Circumvention of Copyright Protection Systems for Access Control Technologies; Final Rule,î 65 Fed.
Reg. 64556, Oct. 27, 2000. DMCA Sec. 1201(a)(1) rulemaking procedure.
On October 3, 2002, for example, Representatives Rick Boucher and John Doolittle introduced H.R.
5544, a bill which would significantly revamp the anti-circumvention provisions of the DMCA. As Rep.
Boucher explained: ìEfforts to exercise [fair use] rights are being threatened by the application of section
1201 of the DMCA. Because the law does not limit its application to circumvention for the purpose of
infringing a copyright, all kinds of traditionally accepted activities may be at risk.î C
(daily ed. Oct. 4, 2002). See generally Pamela Samuelson, Intellectual Property and the Digital Economy:
Why the Anti-Circumvention Regulations Need to be Revised, 14 B
. L.J. 519
(1999)(discussing examples of the critiques of the DMCA that helped to give rise to this legislation). See
also Electronic Frontier Foundation, Unintended Consequences: Three Years Under the DMCA, May 3,
2002, available at http://www.eff.org/IP/DMCA/20020503_dmca_consequences.pdf.
See Clark & Vida, supra note 21 (discussing the extreme polarization of views on S. 2048, the Consumer
Broadband and Digital Television Promotion Act (CBDTPA), proposed legislation originally introduced by
Senator Fritz Hollings as the Security Systems Standards and Certification Act (SSSCA); See also Mike
the Commission would have precedential significance by serving as a model for other
mandate proposals. These could include regulation of the design of general-purpose
computers to limit consumer uses of content transmitted over digital networks or
available on prerecorded media. Congress ultimately may or may not choose to legislate
on the general topic of DRM mandatesóor to specifically delegate its authority to do so.
Until that time, the Commission should stay its hand on the issue of the broadcast flag.
IN THE ALTERNATIVE, IF THE COMMISSION DECIDES IT HAS
THE JURISDICTION TO PROCEED, THE RULE MUST
INCORPORATE ESTABLISHED COPYRIGHT EXEMPTIONS RELIED
ON BY LIBRARIES AND THEIR PATRONS
As has been demonstrated, the broadcast flag has the strong potential to limit the ability
of libraries, schools, and academic institutions to serve the information needs of their
communities. In order to preserve these vital services, any broadcast flag rule the Commission
may adopt must protect all rights: those of creators and content providers, those of consumers
and the general public, and those of libraries, schools, and academic institutions. Copyright law
today balances those rights successfully, and public policy must not enforce, protect, or
encourage any DRM system that does not meet the fundamental criterion of harmonizing such
competing interests. To avoid undermining well-established and constitutionally based balances
instituted in copyright law, any rule must incorporate exemptions for the full range of lawful
practices that copyright law now authorizes.
Godwin, Free to Tinker: IP caution could undermine the great American urge to innovate, A
, Oct. 21, 2002, at 50.
THE AMERICAN LIBRARY ASSOCIATION
THE AMERICAN ASSOCIATION OF LAW LIBRARIES
THE ASSOCIATION OF RESEARCH LIBRARIES
THE MEDICAL LIBRARY ASSOCIATION
THE SPECIAL LIBRARY ASSOCIATION
Professor Peter Jaszi
Professor Richard Ugelow
Glushko-Samuelson Intellectual Property Clinic
4801 Massachusetts Avenue
Washington, DC 20016
Counsel for The Library Associations