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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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« FCC Mandates Broadcast Flag | Main | Peer to Peer a Boon to Child Porn Investigations »

November 05, 2003

Broadcast Flag Loophole Watch - Manufacture for Export

Posted by Ernest Miller

Okay, so I've been reading the FCC's Broadcast Flag requirements and I've noticed what appear to be a couple of potential loopholes for those interested in maintaining consumer rights past the July 1, 2005 deadline (Report and Order and Further Notice of Proposed Rulemaking). According to the FCC's new report, it is illegal for manufacturers and distributers in the US to provide non-DRM'd equipment (effective July 1, 2005) to US citizens, but perfectly legal to manufacture the devices here and sell or distribute them overseas:

§ 73.9009 Manufacture for Exportation.
The requirements of this subpart do not apply to Demodulators, Covered Demodulator Products or Peripheral TSP Products manufactured in the United States solely for export.

The FCC, apparently, believes that foreigners won't be pirates, but US citizens and residents will. Either that, or the FCC believes that foreign residents deserve to have media functionality that US citzens don't.

Whatever.

This reminds me of the old cryptographic requirements, only in reverse. In the earlier days of the web, there were a number of websites that provided cryptographic programs for download, as long as the downloaders were in the US, since it was illegal to export the programs, but not to distribute them domestically. The websites offering the programs for download made some attempt to block people from downloading the programs overseas.

Here, the situation is reversed. It is illegal to distribute domestically, but not to export. Thus, you can write an open source demodulator without DRM, as long as it is solely for export. I imagine you can make the program downloadable, as long as you make some effort to ensure people can't download the program from within the US.

This is a significant improvement over the DMCA, which prohibits virtually all distribution. Under the DMCA, you can't distribute DeCSS at all. Under this regulation, you could distribute the equivalent of DeCSS, as long as you distributed it only to those outside the US. Thus, for open source software developers in the US, they can distribute their work overseas (which will then be redistributed right back to the US).

Caveat: This is based on a quick reading of the regulation. I may be missing something that closes this loophole.

Comments (2) + TrackBacks (0) | Category: Broadcast Flag | Digital Rights Management | Open Source


COMMENTS

1. James Grimmelmann on November 5, 2003 01:23 PM writes...

Heh. So how will this affect Canadians within HDTV reception distance of the U.S. border? That seems like the first natural "export market." (And, potentially, the source for smuggling de-flagged signals back into the U.S.)

Then, how about the notion that there will be significant non-U.S. markets for technologies that use a broadcast standard which has now been bound up with the white elephant that is the broadcast flag? That's either wishful thinking ("Oh, yay, the rest of the world has adopted our 19th-century technical standards!") or a cruel joke ("You can make them for export, but to whom? Bwahahahahaha!)

Permalink to Comment

2. Ernest Miller on November 5, 2003 04:13 PM writes...

Actually, I'm thinking of opening an HDTV shop in Tijuana, Mexico. The regulations don't make it illegal to buy a non-protected device across the border and bring it home.

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