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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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« Peer to Peer a Boon to Child Porn Investigations | Main | Broadcast Flag's Impacts Felt Beyond Television »

November 05, 2003

The FCC - Stupid or Dissimulators?

Posted by Ernest Miller

Prof. Ed Felten makes a good point on Freedom to Tinker about the FCC's justifications for the Broadcast Flag - they are incoherent (The Broadcast Flag, and Threat Model Confusion). The justifications for the broadcast flag and the effect of the broadcast flag are tangentially related at best. In the words of the FCC, "the broadcast flag seeks only to prevent mass distribution over the Internet." Additionally, according to the FCC, "consumers’ ability to make digital copies will not be affected."

Whether or not you agree with the justifications is not the question. The issue is whether the means the FCC has chosen are suited to the justifications. As Felten points out, they are not. The action the FCC has taken will not significantly, if at all, "prevent mass distribution over the Internet." It will, however, impede the average consumer's ability to make copies for friends and family.

Surely the FCC realizes this. If not, they must be stupid. The only other reason for the FCC to make such a statement, then, is to disguise their true intentions, that is, to dissimulate. In reality, the FCC should be saying that "the broadcast flag seeks only to prevent consumers from easily making copies for friends and family." However, such honesty would be a hard sell politically. It is much easier to demonize internet distribution than to tell people they shouldn't make copies for friends and family.

However, see also Seth Finkelstein's infothoughts on the matter (Broadcast Flag - desecration).

Comments (1) + TrackBacks (0) | Category: Broadcast Flag


1. Mike on November 9, 2003 07:07 PM writes...

I'm beginning to think that the RIAA has given us the answer to the broadcast flag. The RIAA was able to track down individual alleged infringers because they left tracks while using various tools on the net to get and share music. Nothing kept the alleged infringers from using those tools to do things that wouldn't have bothered the RIAA. What we should have instead of the broadcast flag is a requirement that when you use the net you are not anonymous, in exchange for having no limits embedded in the tools.

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