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 SEPARATE  STATEMENT  OF  COMMISSIONER  KEVIN  J.  MARTIN,  APPROVING  IN  PART,  CONCURRING  IN  PART 
 Re:  Digital  Output  Protection  Technology  and  Recording  Method  Certifications,  Order  (August  4,  2004) 


 I  support  this  Order’s  approval  of  over  a  dozen  technologies  for  use  in  digital  television  equipment  to  give  effect  to  the  “broadcast  flag.” 
 I  write  separately  to  express  my  concern  with  two  issues.  First,  I  fear  that  the  “non-  assert”  clause  in  the  DTCP  adopter  agreement  could  hinder  competition  and 
 suppress  innovation.  We  acknowledge  in  the  Order  that  DTCP  is  the  only  publicly-offered  output  protection  technology  we  approve  that  permits  copying,  and  is  “therefore 
 likely  to  become  the  primary”  standard  for  the  foreseeable  future.  As  a  result,  anyone  who  wants  to  build  products  for  this  market  must  sign  the  DTCP  license.  Yet,  the  license 
 requires  that  companies  give  up  any  intellectual  property  rights  they  have  in  the  DTCP  technology  before  signing.  Therefore  a  party  may  have  to  choose  between  the  lesser  of 
 two  evils:  either  don’t  participate  in  the  relevant  product  market,  or  compete,  but  give  up  your  intellectual  property  rights.  I  am  concerned  this  result  may  be  anti-  competitive,  may 
 discourage  future  investment  in  intellectual  property,  and  may  generally  be  counter  to  good  public  policy. 


 Second,  I  am  concerned  that  Tivo’s  technology  does  not  include  sufficient  constraints.  All  of  the  other  technologies  requesting  approval  from  us  have  adopted 
 proximity  controls  or  similar  mechanisms  to  limit  content  redistribution  outside  the  home  at  this  time.  I  ultimately  want  to  enable  a  person’s  digital  networking  environment  to 
 extend  beyond  the  home.  I  fear,  however,  that  we  may  be  acting  prematurely  in  concluding  that  Tivo’s  affinity  controls  are  sufficient  to  protect  against  widespread 
 redistribution.  I  therefore  would  have  conditioned  approval  of  Tivo’s  technology  on  adoption  of  proximity  controls  at  this  time,  and  continued  to  study  whether  its  device 
 limits  and  affinity  controls  provide  adequate  protection. 
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