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November 20, 2003
Hollywood == Tobacco Industry?
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 FDAâs 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.
+ TrackBacks (0) | Category: Broadcast Flag | Digital Millennium Copyright Act
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