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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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May 06, 2004

Cuz, You Know, They Said They Would Take Their Ball and Go Home

Posted by Ernest Miller

The main justification for the broadcast flag is that without some form of protection broadcasters won't provide high value content on HDTV. See, In the Matter of: Digital Broadcast Content Protection [PDF]:

Content owners and broadcasters uniformly assert that DTV broadcast content must be protected and that, in the absence of some protection mechanism, high value content will be withheld from broadcast television and migrate to pay services.

Okay, let's skip for the moment the fact that this assertion doesn't make a lot of business sense for the broadcasters, that the broadcast flag won't stop HDTV distribution on the internet anyway, that the content producers haven't withheld content from other distribution channels (DVDs) that allow for massive internet redistribution, there is no definition of what is "high value content" (Average Joe Millionaire's Apprentice Big Brother Marries an Extreme Makeover Survivor on Temptation Island?), that the broadcasters make no promises to provide such content even if there is a broadcast flag, and simply note that the FCC has rather gullibly accepted this assertion. If the broadcasters said it, it must be true.

Now, some CBS News stations are claiming that they will stop covering live news outside the so-called safe harbor for indecency Some CBS Affils Could Drop Live News:

CBS affiliates are telling the Federal Communications Commission that unless it changes its ruling about profanities on-air, many will have to stop doing news outside of the 10 p.m.-6 a.m. safe harbor for indecent speech.

The affiliates said, it must be true. The FCC must therefore relax it standards for indecency, unless they want to destroy local, live news.

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


1. cypherpunk on May 6, 2004 11:30 PM writes...

It is good that you are willing to criticize an invalid argument even when it happens to support a position you agree with. I would have prefered to see the criticism laid out more plainly and not slipped in at the end of an essay of which the greater part was spent rehashing old and well-worn arguments. Perhaps some day you will be able to criticize an argument that advances your cause without clinging to the security blanket of a reassuring restatement of your ideological beliefs.

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