Statement of Congressman John D. Dingell, Ranking Member
Committee on Energy and Commerce

SUBCOMMITTEE ON TELECOMMUNICATIONS AND THE INTERNET HEARING ON “THE AUDIO AND VIDEO FLAGS: CAN CONTENT PROTECTION
AND TECHNOLOGICAL INNOVATION COEXIST?”

June 27, 2006

Mr. Chairman, thank you for calling this hearing. This Committee has a long history of examining issues surrounding content protection and technological innovation for digital television, and we are now beginning to consider radio.

At the outset, I want to welcome back one of our witnesses, Andy Levin, former Minority Committee counsel. Andy served this Committee exceptionally well for many years and I am pleased he is testifying today. I also welcome and thank the other distinguished witnesses before us.

The digital age has vastly improved the quality of video and audio works, and the ease of making and delivering near limitless copies. While digital technology offers many benefits to content producers and consumers, it also provides fertile ground for pirates to steal protected works. Filmmakers, songwriters, musicians, and countless other creators of copyrighted works are understandably seeking additional protections and tools to help prevent their works – not to mention their livelihoods – from being stolen.

When those tools jeopardize legitimate consumer expectations or threaten to undermine scholarship, research, and innovation, we face a formidable task: to preserve the careful balance between the rights of copyright owners to be compensated for their works, and the rights of consumers, educators, researchers, entrepreneurs, and others to use works appropriately to enhance knowledge and understanding of the common good.

Given the size of this task, we should not be surprised if the introduction of new technologies leads to tension that takes time to sort out.

In 2002, after a year of roundtable discussions, then-Chairman Tauzin and I wrote draft legislation that called for a broadcast flag solution for digital television. At that time, content protection was among several issues clouding the marketplace and threatening to forestall progress in the Nation’s transition to digital television. Our draft legislation was intended to jumpstart industry negotiations to yield a solution that properly balanced interests and protected consumers, and it succeeded in moving industries closer.

 The Federal Communications Commission (FCC) then solicited public input on the need for a content protection mechanism and on particular proposals, including a flag-based system. When the FCC ultimately adopted the flag in November 2003, representatives of consumer electronics, information technology, motion picture, broadcast studios, and consumer groups had spent many years evaluating technologies and narrowing the areas of disagreement.

By many measures, the FCC succeeded in a compromise that protected against mass indiscriminate redistribution of digital television content across the Internet while ensuring that consumers could enjoy television through home recording, copying, or moving files to other devices or within a confined network. Although I disagree, the D.C. Circuit found the FCC’s flag requirement to be outside of its jurisdiction.

That leaves it to Congress to give the FCC specific authority to reinstate a digital television broadcast flag within appropriate parameters. As a general matter, the benefits and burdens of the video flag are well understood. Reinstatement would assure the continued availability of high quality content on free, over-the-air broadcast television, balanced by assurances that artists and others will not be indiscriminately cheated out of the rewards of their creativity.

In contrast to the video flag deliberations, issues surrounding the copying and transferring of digital broadcast and satellite radio content are at an early stage. There is no denying that piracy has taken a toll on the music industry. The rising popularity of legitimate online music services offers great promise to counteract those losses. We must look at any audio legislative proposal with care to avoid unintentionally disrupting this progress.

Free over-the-air radio continues to provide vital local news, weather and emergency alerts, and entertainment to millions of Americans. Industry negotiations regarding an audio flag began just this year and so far have failed to yield consensus on the scope of protection, let alone specific technological proposals. Parties have now taken the matter to court. I will be curious whether the stakeholders can work out complex technological and policy issues in negotiations while their lawyers are exchanging legal briefs.

I look forward to continuing this important work.

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(Contact: Jodi Seth, 202-225-3641)