Broadcast Flag Bill Would Freeze Fair Use

Draft legislation making the rounds in the U.S. Senate gives us a preview of the MPAA and RIAA's next target: your television and radio.

You say you want the power to time-shift and space-shift TV and radio? You say you want tomorrow's innovators to invent new TV and radio gizmos you haven't thought of yet, the same way the pioneers behind the VCR, TiVo, and the iPod did?

Well, that's not what the entertainment industry has in mind. According to them, here's all tomorrow's innovators should be allowed to offer you:

"customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law."

Had that been the law in 1970, there would never have been a VCR. Had it been the law in 1990, no TiVo. In 2000, no iPod.

Now the RIAA and MPAA want to betray that legacy by passing laws that will regulate new technologies in advance and freeze fair use forever. If it wasn't a "customary historic use," federal regulators will be empowered to ban the feature, prohibiting innovators from offering it. If the feature is banned, courts will never have an opportunity to pass on whether the activity is a fair use.

Voila, fair use is frozen in time. We'll continue to have devices that ape the VCRs and cassette decks of the past, but new gizmos will have to be submitted to the FCC for approval, where MPAA and RIAA lobbyists can kill it in the crib.