Canadians Stuck With Analog Rights in a Digital World

Michael Geist Blog: My weekly technology law column (Toronto Star version, Ottawa Citizen version, Vancouver Sun version, homepage version…) notes that earlier this month, some fans of the NBC television programs American Gladiators and Medium found themselves unable to digitally record the shows on their personal computers.  The reason for the blocked recordings raises important technical and legal questions about the rights of consumers to "time shift" television programs in the digital era. The blocked recordings affected people that record television programs on their personal computers using the Microsoft Windows Vista Media Centre.  Most people are unaware that Microsoft has inserted a feature that allows a broadcaster or content owner to stop the digital recording of a show by triggering a "broadcast flag" that specifies its preference that the show not be recorded.  When the user tries to record it, Microsoft’s software recognizes the flag and issues a warning that the program cannot be recorded.
While there was speculation that the NBC broadcast flag was triggered accidentally, the incident provided an important reminder about the current fragility of consumer digital rights.  The law in the U.S. has granted consumers the rights to time shift programs for decades, yet broadcasters can seemingly stop the ability to record programs in the digital world with the flick of a switch. Cable providers enjoy similar capabilities. Digital cable boxes used by companies such as Rogers and Shaw include a CableCard that allows users to watch and record digital television shows.  The CableCards feature functionality (technically known as CGMS-A) that allows broadcasters and cable companies to establish limits on recording programs.  
Programs are broadcast with one of three specifications – copy freely, copy once, or copy never.  The copy never specification is typically used for pay-per-view or video-on-demand programming.