With programmers submitting their ideas to the FCC before they can implement them in their machines -- "an exceedingly complicated, Rube Goldberg operation," as Mike Godwin says -- the broadcast flag proposal might sound a bit byzantine. But the MPAA defends the idea by arguing that, without it, free TV would have to come to an end. "Rampant piracy," the MPAA says, would shatter the economic models upon which TV is built. If you could always get a high-definition show on the Internet, why would you watch syndicated reruns? Why would you buy DVD box sets of your favorite programs? Giving people the freedom to watch anything they want whenever they want could result in "the destruction of broadcast television programming as we currently know it," the MPAA said in its proposal to the FCC. "The loss of valuable programming via free, over-the-air broadcast television would reduce the rich range of options consumers presently have in choosing the means of viewing valuable content. Indeed, poorer consumers who may not be able to afford [cable or satellite subscription] fees may be shut out of obtaining quality television programming entirely, a consequence that would exacerbate fears of the emergence of a 'two-tiered' information society."

But there are several holes in the MPAA's thesis. First, the critics say, it's not clear that trading high-definition TV shows will ever become a national pastime -- the files are enormous, and even people with seemingly endless hard drive space and broadband capacity will find HDTV shows too big to work with. If the TV trade ever becomes as popular as the music trade, traders will likely choose lower-quality files to pass around the network -- and the broadcast flag does nothing to combat trading such files. The second argument the critics make is more subtle: Even if the TV trade ever took off, why should we assume that it will hurt -- rather than help -- Hollywood's bottom line? The MPAA, after all, is the group that predicted that no good could come from the VCR; but the home video market now accounts for more than half of movie studios' revenues. Why should anyone believe the MPAA when it says that trading will lead to TV's ruin?

In its comments to the FCC, the Computer & Communications Industry Association, a computer-industry trade group, included a chart showing how long it would take to transfer high-definition television shows over a high-speed connection. On a T1 line -- faster than most DSL or cable modem connections -- a one-hour, HDTV-quality show would take 18 hours to download.

"And it's unclear how such a user would store the torrent of data inherent to HDTV," the CCIA said. "A single two-hour movie broadcast with progressive scanning would take up 72 gigabytes of disk space, roughly equivalent to a full hard drive on most new, $2,000 PCs." Some people, perhaps, would do this -- but will it be hundreds or thousands or millions? Probably not. "In essence, Hollywood asserts that consumers will tie up their computers and broadband Internet connections for literally days at a time in order to swap crystal-clear copies of HDTV broadcasts," the CCIA said.

Mark Cuban, the entrepreneur who founded Broadcast.com (which he sold to Yahoo for $6 billion) and who now owns the Dallas Mavericks NBA team and several other entertainment properties, has bet heavily on high-definition TV -- and, because he can't conceive of the Internet threatening the high-definition business, he says he's "big-time anti-broadcast flag." In 2001, Cuban co-founded HDNet, the first national high-definition TV network. "We've been on the air for two years, and so has CBS, and HBO has had its shows on HD," Cuban says. "I'll pay you $10,000 to find a HDTV movie online. If in two years you can't find one single example," then there's nothing to worry about, he concludes.

Cuban concedes that things could change in the future. "There's always the chance there's some technology that comes along" to make trading HDTV easier. But the broadcast flag isn't designed to address those technologies, Cuban says, and it won't stop anyone who, today, spends any minimal effort to circumvent the system. Critics of the flag all point to the "analog hole" -- the regulation would allow digital TVs, VCRs and other receivers to send digital content out as a lower-quality analog signal. That signal could easily be captured on a computer, and then traded on Kazaa. Cuban also noted that "there's a whole new standard coming out for high-definition camcorders. You can bitch and moan about copying, but you won't be able to stop the eyeball hole," which he described as someone pointing a high-definition camera at a high-definition screen, recording a show, and then trading that file on a file-trading network.

And, as the EFF's von Lohmann explained, thousands of digital televisions have already been sold, and these TVs will completely ignore the broadcast flag -- and, consequently, these sets can send pure digital signals to be captured on a PC. Because of the existence of these TVs, the broadcast flag is, "by its own terms, completely useless," von Lohmann says. "It's not just a little useless, it's absolutely and completely useless, and it should take somebody only about 30 seconds to figure that out. All it takes is any one of those [legacy TVs] to upload a file to a file-sharing network, and we're done, game over."

The MPAA concedes that the broadcast flag won't be a panacea. "It's not perfect. We readily admit that," Fritz Attaway says. "[But] we believe that the vast majority of consumers are not going to take the time and effort required to convert digital material to analog and them to digital again in order to stream it over the Internet. Those that do, we will have to deal with in some other way."

Attaway also said that the trade group looks forward to the eventual retirement of analog outputs in consumer electronics products. "We believe that someday the marketplace will eliminate analog interfaces, because digital interfaces are more efficient, and that is the type of interface consumers will want in their devices," he said. Critics of the MPAA suspect that Hollywood will eventually ask the FCC to "sunset" analog outputs -- to order manufacturers to stop producing new devices that generate analog output -- but Attaway said that's not on the horizon. "We've made no initiatives at the FCC to eliminate analog outputs -- we readily admit the difficulties of setting a date for sunsetting analog outputs. We have to turn to other methods of dealing with the analog hole."

But let's say the MPAA is right -- let's say that, despite its holes, the broadcast flag will in face prevent high-definition TV shows from becoming "Napsterized," always available to anyone on peer-to-peer networks. Does that justify imposing the flag -- would a Napsterized TV market really lead to the end of TV?

Mike Godwin says he has puzzled over this question for a while, and he doesn't see any evidence to support the studios' threat model. "We had a meeting with the [FCC], and we said we didn't think their model is accurate," Godwin says. "There are reasons to think it's more complex than what they say. Well, the FCC quizzed us on this. What the studios say makes intuitive sense -- you know, why buy the cow when you can get free milk? And basically, our answer is that sometimes you want an ice cream sundae, not just milk."

If you're the kind of fan willing to spend days or weeks downloading episodes of your favorite program, chances are that you're also the kind of person who might buy or rent an entire season of the show on DVD. It's possible that, in an age of easily traded TV shows, you'll decline to buy the boxed set if you can get the shows for free -- but isn't it possible, too, that the traded shows will somehow convince you to buy the boxed set or rent more DVDs or watch more reruns?

This is, of course, a variation on the same question that has dogged the debate over music file-trading -- does trading help, or hurt, the media companies? But there's a difference in the video market, where the costs (in computer resources) are higher, and where people are used to renting content. It might be possible, someday, to download a season's worth of "The X-Files" to your machine in high-definition quality video -- but if you'll have to spend weeks to do it, why wouldn't you just go to the store and rent a DVD?

"I could download every episode of 'Buffy' I want to," Mike Godwin says. "And the fact is, I bought the boxed set."

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