I remember when the term digital applied to clock radios and not much else. These days, it seems to modify every aspect of life, from dating, address books, datebooks, music, and photos to videos and broadcast TV. We've all been told that analog is passé, and that the quality, versatility, portability, and longevity of all things digital clearly make that media the superior choice.

And therein lies the rub. Digital media really can live up to the hype (we're mostly there). Copies of digital content are identical to the originals, and there's none of the degradation we lived with in the bad old analog days--which is why the people who create content that gets encoded digitally are so nervous. The free-for-all music grab that was Napster casts long shadows, and they'll be with us for quite a while.

Enter the broadcast flag, the latest of the entertainment industry's attempts to tame the lawless digital frontier. Approved by the Federal Communications Commission back in November, the broadcast flag applies to digital TV broadcast signals--which are supposed to be more or less universal by the end of 2006, although many experts predict that won't happen. It's supposed to restrict content copying, so that you can't transfer the latest, high-quality, digital episode of CSI from your TiVo to your PC and then let it loose on that crime facilitator known as the Internet.

But neither copy protection proponents nor critics are happy with the ruling, and both sides are gearing up for further battles.

Quick Flag FAQ

So what can you do when the broadcast flag gets activated? Here are answers to common questions about the technology:

Q. Can you still copy your favorite program, so you don't have to watch it at its scheduled time?

A. Yes.

Q. Can you copy it to a DVD?

A. Yes. Even if you stored it on a hard disk first, you should still be able to transfer that content to a single DVD--and possibly make a back-up copy, but that will depend on the specific restriction given to your recording device by the flag. I wouldn't count on lots of backups.

Q. Can you then copy that DVD for a few hundred of your closest friends?

Q. No. Not only is the flag likely to prevent that, but also existing copyright law prohibits that level of reproduction.

Q. Can you legally invite a few friends to watch the DVD you made of your favorite show?

A. Sure, as long as you don't charge admission.

Q. Can you legally play that DVD on your PC or your notebook when you travel?

A. Yes--that still counts as personal use, and you're not making multiple copies. However, if you recorded the DVD with a device that recognizes the flag, you won't be able to play it if your PC and notebook DVD drive can't read the flag.

Q. Can you legally transfer that episode from your networked personal video recorder to a peer-to-peer network to be accessed by millions of impatient freeloaders who can't wait for their local syndicators to get it?

A. No, precious. That's what they call piracy. And the flag is supposed to remove that temptation from your path.

Q. Can you legally transfer that episode from your networked PVR to another TV or recorder in your own home?

A. Maybe. The FCC isn't clear on that, although the ruling does allow for that possibility. It's only supposed to affect indiscriminate, widespread redistribution (read: via peer-to-peer). There seems to be no outright guarantee, however, that the glorious, easy-to-use home entertainment network promised by consumer electronics and computer vendors alike--the network that lets video and music content get shuttled around seamlessly from your living room DVD recorder to your upstairs TV to your PC in the office to your stereo in the den--will actually be possible.

Q. Do I have to get new equipment?

A. That's practically guaranteed. You should be able to view flagged content on legacy equipment (as long as that equipment can handle digital signals), and you'll still be able to record that content on your VCR. However, if you buy a DVD recorder or a new TiVo device that recognizes the flag--as they're all supposed to do by mid-2005--and use it to record your favorite episode, you probably won't be able to play that disc back on older DVD players. In other words, once you've recorded it with a device or medium that sees the flag, that content is locked to devices that can't see the flag.

Q. Will every program be flagged?

A. Nope. That's up to the individual content provider. Pay-per-view content will likely have the most restrictions, and older reruns less--maybe even none. One curiosity: News programs probably will be flagged, even though there is no syndication issue with them and timeliness is, clearly, of the essence.

The Motion Picture Association of America and the Center for Democracy and Technology offer their own broadcast-flag-specific FAQs. As you might imagine, their views differ somewhat. (On its Web site, the CDT offers both a Cliff's Notes version of its broadcast flag proposal and a more in-depth report.)

For more on digital media do's and don'ts, see "Consumer Watch: To Copy or Not to Copy."

Nobody's Happy

Neither side particularly likes the broadcast flag as is.

Copy protection proponents, including the MPAA, think it leaves gaping holes through which the piracy-minded can easily swipe content. For example, the encryption standard just has to be strong enough to deter average users, not experts; the MPAA doesn't think that's good enough. Some digital rights management companies, like Digimarc, go one step further, arguing that the flag itself lacks both the flexibility and the robustness to really protect content. (Digimarc sells, and naturally champions, rival rights management technology known as watermarking.)

For the MPAA, that issue pales in comparison to what it calls the "analog hole." All of the rules discussed in my Q&A restrict digital content recorded by digital devices. If you re-record that content onto analog media or record it to analog in the first place, you bypass the flag and the protection. That doesn't even address the fact that most content today is analog--and it will likely stay that way for several years, digital TV deadline or not. As you may expect by now, the MPAA intends to pursue legislative relief for this, too.

The CDT, the Electronic Freedom Foundation, and other consumer rights groups worry that the flag's guidelines are too broad and may end up not only restricting what consumers can do, but also what technology can do. No more nifty new products if technology innovation is stifled by government rules, regulations, and red tape. Moreover, what's the incentive for someone to buy a new device that does less than the one they currently own? If consumers won't buy, innovation again loses.

The Fall of Fair Use?

In recent years entertainment companies have been fighting to define the notion of "fair use"--which lets people make copies of music, video, and other content they've paid for, as long as it's for personal use--more and more narrowly, or get rid of it altogether. Consumer groups are concerned that this type of government-endorsed regulation will drive another nail in fair use's coffin.

And then there's the privacy issue. Although TiVo can tell you how many of its users replayed Janet Jackson's MTV half-time show and what commercials didn't get skipped, people who watch over-the-air broadcasts don't get their viewing habits tracked to that extent. It's possible that the broadcast flag could be used to track who's recording content and what they're doing with it.

The Flag and I

For the moment, let's ignore the question of whether the FCC has the authority to set rules in this case. Like all government regulation, the broadcast flag is imperfect. Tensions between consumers and copyright holders are at an all-time high and, to be honest, both sides have good reason to feel threatened. No one likes to have their work stolen; and no one likes to be presumed a thief when they in fact have done nothing wrong. Hauling 12-year-olds into court doesn't help, either. This is not supposed to be a death match: Movie and music makers have something I want (their products), and I have something they want (my money).

Some degree of copy control is inevitable. Artists and the companies who employ them have a right to be paid for their work, and to prevent its distribution to the four corners of the world by any Joe or Jane with an Internet connection.

But entertainment companies have to remember that we are their customers, not their adversaries. There are things I want to do with content that makes it worth the money: Take these things away, and I'm less willing to pay.

Moreover, my needs are not static: I'm busy, and I'm not willing to consume things only when they're offered to me or in the way they're packaged. VCRs, TiVo, portable music players, CD burners and the like have taught me I don't have to. And these technologies also have implications for syndication as it exists today--namely, that it may not be able to exist tomorrow. None of this means, however, that I'm unwilling to pay for the flexibility I want and the programming I enjoy.

Got a question or comment? Write to Anush Yegyazarian.