Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, March 13, 2006

Some Analysis of the Digital Broadcast Flag

Cuong Lam Nguyen has published a Comment in volume 22 of the Houston Law Review titled "A Postmortem of the Digital Television Broadcast Flag". It's also available as a working paper from the University of Houston Law Center and from SSRN. Here is the abstract.

This Comment explores flaws in the FCC’s broadcast flag rules and examines how future television broadcast piracy solutions should address the broadcast flag’s shortcomings. Part II begins with a brief history of television and the circumstances that brought the broadcast flag into existence and then proceeds to map out the evolution of broadcast flag regulation. Following this history, Part III examines the fair use doctrine in the context of broadcast television. Part IV proposes that the best way for future DRM schemes to preserve fair use is to adopt competition and innovation-friendly policies that provide consumers with a variety of options that will collectively restore the scope of their fair use activities. Part IV also critiques the FCC’s policy choices and explains why these policy decisions fall short of establishing the competitive and innovative climate necessary to preserve fair use. Part V concludes that the broadcast flag policies will provide important lessons in this ever-evolving debate of fair use.

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