The Return of the Broadcast Flag

It may be an issue that hasn’t made the headlines in the last four years, but a controversial kind of Digital Rights Management (DRM) appears to be making a return to the spotlight. The broadcast flag has made a return and this time, it appears to be bi-passing regulators altogether.

Stories about the DRM embedded in Windows Vista has been a hot button topic for some. Those wary of the new operating system say that the DRM in Windows Vista would force users to forfeit control over the operating system. Others who embraced Windows Vista say that the worries are overblown and nothing short of fear mongering and unsubstantiated. For those who were wary of the latest version of Windows have just got one very solid example of embedded DRM forcing users to forfeit control for copyright holders.

The EFF has been following reports about NBC enacting the broadcast flag. What NBC reportedly has been doing is using the broadcast flag to prevent users from recording over-the-air TV shows for later viewing.

It turns out that when a user uses Windows Vista to record certain NBC shows, they’ll get a message that states that recording of the show has been prohibited. To prove the point, someone took a screenshot of what happens when one tries to user their PVR to record the shows.

Essentially, a broadcast flag is a bit that comes at the beginning of a digital TV show (typically High Definition shows) If, say, the bit was a one, then that bit tells a PVR that this show has been flagged and the PVR stops people from recording a show. If the bit is a zero, then there is no broadcast flag put in place and the PVR is allowed to record the show.

The EFF is particularly interested in this. They commented with the following:

The ability to flag broadcast content was created by the ATSC standard which governs digital TV broadcasts in the United States. By itself the broadcast flag cannot restrict use of broadcast content. Instead, its force comes from a tech mandate law – an FCC regulation – which required manufacturers of DTV-receiving devices to detect and respond to “switched on” broadcast flags. EFF and others opposed the use of the broadcast flag and fought successfully to have the FCC regulation overturned by the courts. We did that because it handed control over your hardware to a remote authority, limited your right to your fair use of media, and would have made illegal open source products like MythTV. As a result of that victory, manufacturers are not legally required to force their devices to detect and respond to the flag.

It would now appear that Microsoft has voluntarily chosen to obey such content restrictions in Vista, despite the successful work of thousands of users to defend Microsoft’s right to innovate and our right to fair use. Justin was attempting to record the program on Windows Vista Ultimate using Silicon Dust’s HDHomeRun external tuner, which decodes the digital TV signal, and sends it over Ethernet to many types of digital TV receivers, such as MythTV or EyeTV. As Silicon Dust says on its website, their decoder merely passes on the datastream, and does not interpret data like the broadcast flag field itself, so we know that it is Windows alone that has declared that this program should not be recorded.

To be perfectly clear: Microsoft is under no legal obligation to look for and respond in any particular way when it sees the broadcast flag being sent by NBC’s digital stations. Any DTV-receiving software technology or device – like MythTV – is free to take the same stream from HDHomeRun and ignore a broadcast flag transmitted with it. In other words Microsoft did not have to build its PC to look for and refuse to record a program which has its flag turned on.

EFF notes that consumers fought the FCC so that alternatives like MythTV could exist legally in the United States. Had this not happened, then very likely, the FCC would force companies who create devices and programs to record TV shows to obey the broadcast flag. It was decided that the FCC was outside it’s jurisdiction when it tried to force companies and open source developers to build electronic devices and programs in only certain ways. After the FCC lost in court, the content industry lobbied heavily to get the broadcast flag into the government, but a coalition to counter the lobbying was successful.

So why, after all that work, does Microsoft’s software appear to honor content restriction? It’s hard to say. Was it a content licensing requirement? Microsoft didn’t have to do so if it just wanted its devices to decode and display over-the-air digital NBC broadcasts — just as you don’t need to sign a contract in order to decode and display the signals sent over the public airwaves into your living room. American consumers can choose what to do with their digital broadcast TV, just as they have been able with analog broadcast TV.

Since this all seems to be a voluntary type of control, there’s definitely good reason to use alternatives should Microsoft be going ahead with enacting certain controls over what people can do with the operating system. There’s no word yet on whether or not this was actually accidental on Microsoft’s part.