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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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November 20, 2003

Hollywood == Tobacco Industry?

Posted by Ernest Miller

Susan Crawford offers an interesting take on her blog regarding the FCC's lack of authority to mandate the broadcast flag (New tack on the broadcast flag). Her take is certain to be popular in Hollywood as it analogizes the copyright industries to the tobacco industry:

[I]f FDA cannot regulate cigarettes, FCC cannot regulate consumer electronics devices.

The case Crawford is referring to is FDA v. Brown & Williamson Tobacco Corp., in which the FDA claimed the ability to regulate cigarettes, but was shut down because, among other reasons, "It is highly unlikely that Congress would leave the determination as to whether the sale of tobacco products would be regulated, or even banned, to the FDA’s discretion in so cryptic a fashion." Similarly, it seems rather odd that Congress intended the FCC to regulate the consumer electronic and computer industries without a clear mandate.

Indeed, for the first time, I must praise the anti-circumvention aspects of the DMCA. Section 1201(c)(3) of the DMCA states that:

[n]othing in this section shall require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part of component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).

This is the anti-mandate provision of the DMCA, which was part of the compromise that resulted in the passage of the bill. How odd that the consumer electronics industries would have signed on to this compromise if what it really meant was that the FCC could mandate anyway. In addition, section 1201(k) explicitly regulates certain copy protection measures for analog broadcasts. Had Congress intended for the FCC to mandate digital copy protection for broadcast, you think the DMCA might have mentioned it.

This is just a brief analysis. Hopefully, the consumer electronics and computer industry lawyers are putting together something much more devastating to the FCC's case.

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Digital Millennium Copyright Act


COMMENTS

1. Susan Crawford on November 21, 2003 08:17 AM writes...

James -- this is just an idea I thought of, and I'm very glad you find it interesting. I am going to be spending the next few months writing an article along these lines, and working with consumer advocates who are thinking of challenging the FCC's jurisdiction to enter the flag order. As far as I know, no one has made the decision to sue -- yet. If you're interested, I wrote an article about the broadcast flag called The Biology of the Broadcast Flag, which is coming out in Hastings COMM/ENT shortly. A draft is here: http://www.scrawford.net/111603_%20draft.pdf

Permalink to Comment

2. Susan Crawford on November 21, 2003 08:33 AM writes...

sorry, Ernie. I lost track of which blog I was commenting on.

Permalink to Comment

3. doogieh on November 21, 2003 11:32 AM writes...

While the analogy is a good one, there are two difficult impediments to this argument:

(1) the FCC (especially during the AT&T era) had the ability to regulate ANY device directly or indirectly connected to a phone line. Even a company that made an attachable shoulder rest for old-style AT&T phones was found to be violating AT&T's official monopoly/tariff on the telephone system. Given the breadth of the FCC's old regulatory power under the rubric of the "public interest" standard, it is difficult to belive that FCC regulation of computers, DVRs, and other electronic devices connected to an interstate communications network would be per se outside of the FCC's power. The 1996 Telecommunications Act may help in this argument, but I doubt it.

(2) The DMCA provision is helpful but is limited to application of the DMCA itself -- i.e. the DMCA does not mandate any company include a particular technology in its device. It does not directly impact any action of the FCC, and the FCC really does not have authority (compared to, say, the Librarian of Congress who does) over implementation of the DMCA.

So neither point really would be strong enough to really challenge the FCC's decision on their own, at least in my uninformed opinion.

-dh

Permalink to Comment

4. Ruidh on December 3, 2003 08:56 AM writes...

OTOH, wasn't the FCC specifically given the authority to set standards for HDTV by Congress? The broadcast flag can be seen as an exercise of that authority.

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