John Bergmayer, Legal Director at Public Knowledge, provided me some detailed insight into the ongoing FCC debate surrounding DRM (Digital Rights Management) and ATSC 3.0, also known as NextGen TV in a recent interview.
You can watch the full interview here.
Bergmayer’s organization, alongside the Electronic Frontier Foundation (EFF), Consumer Reports and other organizations, submitted a comprehensive FCC filing strongly opposing the DRM implementation proposal from the National Association of Broadcasters (NAB).
Public Knowledge, a Washington D.C.-based consumer rights advocacy group, champions balanced digital rights, net neutrality, intellectual property reform, and media policy reforms that benefit diversity of voices and consumer interests. Bergmayer, who has been with the organization for over 12 years, emphasized their proactive role: “We do interface with government directly and participate in regulatory proceedings like this one at the FCC.”
Despite engaging in working groups aimed at consensus-building for the future of television, Bergmayer identified substantial disagreements among stakeholders. He explained, “There was consensus on the sort of issues that don’t really matter all that much… but on fundamental questions about DRM and encryption issues, there was not a lot of agreement.” Bergmayer highlighted that within broadcaster groups, positions significantly diverged, citing smaller broadcasters like Weigel Broadcasting, who see limited benefits in transitioning to ATSC 3.0.
A central point of contention involves DRM implementation, which Bergmayer argued severely threatens fair use rights and consumer freedoms. He emphasized the inherent conflict: “DRM interferes with things that are legal… it prevents you from accessing the content to do things that are fair uses.” According to Bergmayer, DRM undermines established consumer rights, specifically referencing landmark fair use cases such as the Sony case, which secured the right to record and privately use broadcasted content at home.
Bergmayer pointed out the paradox created by DRM regulations, noting that the Digital Millennium Copyright Act (DMCA) makes circumventing DRM illegal, even if the underlying action, such as recording television programs for personal use, is legally protected fair use. He explained that this contradiction effectively criminalizing legitimate first amendment activities.
The chilling effect of DRM was another significant concern raised by Bergmayer. He indicated that DRM requirements could severely limit innovation and device availability. Specifically, he mentioned popular devices like the HDHomeRun, which significantly outsell DRM-compatible devices precisely because of their flexibility and consumer-friendly nature.
Bergmayer also underscored the unique obligations of broadcasters, emphasizing their responsibilities given their free access to valuable public spectrum. “Free public airwaves should not be turned into a private playground for these companies,” Bergmayer said.
Regarding consumer engagement, Bergmayer praised the active participation of thousands of individual commenters in the FCC docket, noting its unusual depth for such technical issues: “It’s really impressive that there’s people out there who are willing to spend the time to make their voice heard.”
Looking forward, Bergmayer predicted inevitable legal challenges regardless of the FCC’s decision, referencing previous influential cases like the Broadcast Flag litigation, which Public Knowledge successfully led. He believes further court battles are likely due to persistent conflicts between DRM implementation and established individual rights.
Bergmayer strongly encouraged continued public awareness and advocacy as the FCC is obligated to process and acknowledge consumer feedback in making its decisions.
I will have more on this topic as news develops!