October 24, 2003

Is the Broadcast Flag Constitutionally Permissable?

The Constitution of the United States requires that there be some limit to the duration of copyrights.  The recent Eldridge case indicates that courts will defer to the Congress regarding the quantitative duration of the period of copyright protection..

The "Broadcast Flag" is an impediment to copying that has effects of indefinite duration.  The existence of a Broadcast Flag blocks not merely present fair use but also future fair use.  The flag even prevents the copying of material that has fallen or been placed into the public domain or for which the copyright has expired.

A law that forces digital equipment to disable functions in the presence of a Broadcast Flag gives copyright holders a means to impose limitations from beyond the grave, effectively for ever.

Because the effects of the Broadcast Flag are potentially of infinite duration, it is worthwhile to inquire whether Congress is Constitutionally able to pass a law that has the practical effect of creating perpetual copyrights.

My own feeling is that Congress will be creating copyright rights of unlimited temporal duration if it enacts a law that mandates that digital products (including computers) disable functions in the presence of a Broadcast Flag.

I would assume that other people who are better versed in this than I am have already thought of issue and have written well considered papers.  If not, perhaps this note will trigger such thoughts and consideration.

I hope to come back to this topic in more detail later.

Posted by karl at October 24, 2003 1:57 AM