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 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.

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.