Video Recording of Over-the-Air Television Under Seige?

Last week, the Home Recording Rights Coalition (HRRC) issued a statement condemning the encryption of terrestrial broadcast television programming, which the organization says will threaten established home recording rights. The HRRC made its comments in a letter sent to Federal Communications Commission (FCC) Chairman Michael Powell in response to issues raised in a letter sent to Chairman Powell last week from members of Congress. In its letter, the HRRC expressed concerns that television programming producers may decide to provide content only to channels with strong copy protections.

According to HRRC Chairman Gary Shapiro, "If broadly applied, such a doctrine would contravene and nullify public policy as to the reasonable and customary practices of consumers, as formulated by the Congress as recently as 1998." Shapiro specifically pointed to Section 1202(k) of the Digital Millennium Copyright Act (DMCA), in which, he argued, Congress enacted a "carefully balanced approach" to analog home recording rights. Shapiro adds that "this section provides that the mandated technology may not be applied so as to interfere, in any way, with consumer recording of free terrestrial broadcasts."

Shapiro said he also feels that encrypting free terrestrial broadcast television, along with any other proposals that would diminish consumers' fair use rights, would provide little incentive for consumers to move to digital television. "It also would be a policy change without rationale. Analog copies of broadcasts, allowed by the DMCA, can always be digitized for Internet distribution. The real target of any new impositions would be consumers themselves, in their customary, private, and noncommercial practices."

In its letter to the FCC, the HRRC outlined three boundaries that should be established as this subject is under consideration: No consideration should be given to encryption of free, terrestrial television broadcasts; no imposition, of any nature, should be placed on the ability to record free, terrestrial broadcasts for private, noncommercial purposes in the home; any meaningful approach to issues surrounding the redistribution of broadcast programming over the Internet requires legislation to reach all products capable of storing and uploading broadcast signals. The HRRC argues that any approach to resolving these issues must recognize and protect customary consumer recording rights within the household.

The HRRC letter closed with general concerns about the federal government's sanctioning any effort that would constrain free broadcasts: "It would seem inappropriate for the FCC (or the Congress) to take steps based on an assumption that the motion picture industry would jointly withhold its product from the marketplace."