New Senate 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. (Please write
your Senator about this!)

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.

Fair use has always been a forward-looking doctrine. It was meant to
leave room for new uses, not merely "customary historic uses." Sony
was entitled to build the VCR first, and resolve the fair use questions in
court later. This arrangement has worked well for all involved --
consumers, media moguls, and high technology companies.

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.