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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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The Importance of...

August 07, 2004
Does the FCC Want Out of the Copyright Regulation Business?Email This EntryPrint This Entry
Posted by Ernest Miller

Timothy Wu, professor of law at the Univ. of Virginia's School of Law and prolific guest blogger on Larry Lessig's blog argues that the FCC is having buyer's remorse with regard to the broadcast flag (The FCC wants out of copyright). He bases his conclusion on the fact that the FCC recently approved all thirteen proposed broadcast flag technologies, a decision I mocked here (FCC Bestows Its Blessing on Technological Innovation).

While I believe (but am by no means certain) that the FCC will ultimately regret this foray into copyright law, I am not sanguine about the fact that these first thirteen technologies were approved. After all, only one of the thirteen was opposed. So I don't see the fact that they were approved "without much fuss" to be particularly illuminating. After all, the hard negotiating and compromise took place between the CE/PC and copyright industries long before the technologies were presented for the FCC's blessing.

The fact that TiVo to Go was approved is not very reassuring either. First, at least one of the Commissioners (Kevin J. Martin) was willing to go on the record against the approval (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) [PDF]):

I am concerned that Tivoís 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 personís digital networking environment to extend beyond the home. I fear, however, that we may be acting prematurely in concluding that Tivoís affinity controls are sufficient to protect against widespread redistribution. I therefore would have conditioned approval of Tivoís technology on adoption of proximity controls at this time, and continued to study whether its device limits and affinity controls provide adequate protection.
Second, TiVo to Go does not seriously threaten the copyright interests. Sure, they opposed it, but they didn't make that much of an effort. After all, TiVo is struggling in the market and the "ease-of-use" of a system that requires easy-to-lose or misplace registered dongles isn't going to keep MPAA or NFL executives up at night. They were merely trying to see how easy it would be to boss the FCC around. Moreover, it was win-win for them. With TiVo to Go approved against their desires, the broadcast flag system looks more reasonable to those not paying close attention.

The biggest flaw with Wu's argument, however, is that he doesn't explain why the FCC approved the broadcast flag in the first place less than a year ago. The broadcast flag ruling was, to borrow a court term, well-briefed on both sides. It isn't as if the FCC didn't realize what they were doing. Has anything changed in the last year to make the FCC regret their rash judgement?

Some of the FCC Commissioners talk a nice game about deregulation, but one would be hard pressed to see their rulings as a whole over the past few years fit that model. There is the crackdown on indecency, of course. To be expected in an election year after Jackson's wardrobe malfunction, but why did the FCC have to revive the profane language doctrine after decades of nonuse? What of CALEA? What of the mess that is VoIP regulation?

The FCC isn't about deregulation, the FCC is about what's best for the political interests of the commissioners.

Category: Copyright

Alexander Wehr on August 8, 2004 06:21 AM writes...

I want to know why so much hoopla goes on over the broadcast flag when the "plug and play" standards are much more consumer unfriendly and restrictive.

There has been no review of this, not to mention the fact that through DFAST license requirements it excludes PC and particularly linux technologies (the most proliferated HDTV capable devices) from properly accessing DTV/HDTV signals. computers have at least 30 diffferent mainstream compression codecs, but the rules for DFAST licensing destroy the right of the consumer to use those codecs to, i dont know.. save a little money?

The extreme unpopularity of itunes and other music stores, the fact that only itunes manages to make even a meager profit, should be an indicator of how much the population HATES drm.

And yet they have made it mandatory.

I see no "remorse" from the FCC, i see a direct initiative to stunt technology and destroy interoperability.

They are out to do whatever they can to break the computer and reverse the 1984 betamax decision.

Permalink to Comment

Seth Finkelstein on August 8, 2004 09:51 AM writes...

I am not sure the following is true, but an argument could be made that many at the FCC see themselves sinking into a quagmire of political determinations which they would rather avoid.

Note it's obvious that the "profane" bit was intended as a face-saving way of reversing a decision that, while arguably legally quite correct (the usage wasn't "indecent", all in all), was extremely politically unpopular.

What's changed? They've been at the center of two public firestorms over decency (Jackson, Bono), and have the broadcast flag mess. They might be deciding they really don't want to be the agency saddled with the task of Determining Copyright in The Digital Age.

Permalink to Comment

Alexander Wehr on August 8, 2004 12:29 PM writes...

" fear, however, that we may be acting prematurely in concluding that Tivoís affinity controls are sufficient to protect against widespread redistribution."

they dont seem to get it.... even if they were to mandate a box completely bereft of all computer interface connectors, someone would still manufacture a black box to do it despite the DMCA.

It makes me want to laugh, but im too busy being mad on behalf of open source developers, the linux platform, and my family(which knows nothing of them there bits).

it wont make "widespread distribution" go away.. in fact it may ENCOURAGE it by denying people flexible home recording rights.

Permalink to Comment

TrackBack URL: http://www.corante.com/cgi-bin/mt/mt-pcorso.cgi/4039
FCC Out of Copyright from Copyfight Tim Wu says that copyright is the FCC's Vietnam, and that it "should be looking for a graceful exit strategy." I couldn't have said it better myself (literally). Thank you, Tim. Later: Ernie Miller takes issue with Wu's assertion that... [Read More]

Tracked on August 7, 2004 05:45 PM





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