Congressman Rick Boucher is a rare animal indeed: a man looks at the bigger picture of intellectual property and tries to determine the appropriate balance intended by the founding fathers in creating patents and copyrights. I first became aware of the Congressman when he guest blogged on Lawrence Lessig’s weblog, where he showed surprising sense. He has written a guest editorial for news.com, where he suggests that in exchange for enacting the FCC’s Broadcast Flag rule, Congress should restore fair use rights which were destroyed by the DMCA.

Hmmph.

I can’t help but think that this is a bargain with the devil. The DMCA should never have restricted the fair and unregulated uses of copyrighted material. It was a travesty: one that robbed the American people their rightful property. I’m not sure why Congressman Boucher thinks that we should pay for giving back a right which never should have been taken.

And make no mistake: the Broadcast Flag does nothing for consumers. In the page I linked above, Congressman Boucher claimed to fear a culture where everything was “pay per use”. That is precisely the kind of world that the Broadcast Flag is designed to create. The Broadcast Flag is an annoyance to consumers. It means that transferring your time shifted video from your TiVo to your PDA will be a hassle. That transferring it to your Unix box will be a bigger hassle.

When Mr. Glickman says:

“So why should I care about a so-called broadcast flag regulation? The answer is simple. I want to make certain that the American people will continue to have the opportunity to see our movies and television shows on free television in the digital age.”

First of all, just where is this “free television”? I live in the bottom of a valley, so over the air broadcasts are basically impossible. I pay $45 a month or so for my traditional analog cable from Comcast. I don’t have free television, and as time goes on, fewer and fewer Americans do.

Next, there is currently no broadcast flag, and yet there seems to be no shortage of programming. One could, of course, make claims as to its quality, but one presumes that there could be only a single reason for not having better programming: the almighty dollar.

Really, what Mr. Glickman is saying that “if we made more money, we could create more programming, and the Broadcast Flag will enable us to make more money.” Glickman expects us to sign off on this, and we will see this new programming as a result. It sort of reminds me of the ideas that were floated early in the early days of Cable TV. “Pay us, and you can have fewer commercials!” they said. Uh huh. We all know how that worked out.

Giving teeth to the FCC Broadcast Flag resolution in exchange for restored fair use is basically robbing Peter to pay Paul: it doesn’t really make any sense.

I recognize you are one of the “good guys”, Congressman Boucher, but I think you can come up with a better idea than this.

Although, perhaps no better compromise.