Andrew Kantor quotes me in his USA Today column Friday, wherein he celebrates the DC Circuit’s striking down of the broadcast-flag regulation. This link will probably perish after a while — if anyone knows how to link more permanently to USA Today pieces, drop me an e-mail.

I’m also make a small appearance in the Progress and Freedom Foundation’s IP Central weblog this week. Patrick Ross’s blog entry criticizes the plaintiffs’ challenge because our filings focused on the copyright-policy dimension of the flag regulation (and specifically on how it would harm consumer interests in the copyright balance). “If the question is only on the merit of the flag, I would support it,” says Patrick, adding that the scheme “does seem to be a relatively harmless protection.”

But in calling the broadcast-flag scheme “relatively harmless” he overlooks the technology-policy arguments we also have made, although for obscure legal reasons it wasn’t particularly appropriate to focus on them in the court challenge. One of the major tech-policy arguments is that, if you believe protecting TV content technically is a necessity, there are intelligent, more effective (encryption-based) ways of doing it. The flag scheme, in contrast, is a stupid, expensive, breathtakingly ineffective way to do it that vastly entangles the government in a broad range of product and software design, introducing huge inefficiencies in that design and distorting the marketplace.

This is why libertarians mostly oppose the flag, even if they are
pro-DRM and pro-copyright. (For a discussion of the problems associated with the broadcast flag, as well as larger issues relating to the transition to digital television, check out my Reason article.)

PFF’s Jim DeLong calls the victory over the broadcast-flag regulation “Pyrrhic,” but his argument makes two bogus assumptions. The first is that content producers will quit making new TV shows if broadcast content isn’t protected from copying, even though that hasn’t stopped them from making TV shows in the nearly three decades since the invention of the VCR. The second is that the policy choice is between the broadcast-flag scheme or nothing at all. The elephant in the room is that encryption-based schemes would work better — they wouldn’t be perfect, by any means, but they offer more protection than the flag scheme and impose fewer design and implementation costs.

Please note — I’m not calling for encryption of over-the-air TV myself. I don’t think the case has been made that it’s necessary or useful. But if you do think that case has been made, you still ought to oppose something as clumsy and stupid as the broadcast-flag scheme.

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