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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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« JibJabapalooza 3 | Main | The Future of Copyright, the Future of Technology »

August 05, 2004

FCC Bestows Its Blessing on Technological Innovation

Posted by Ernest Miller

As has been widely noted, yesterday, the FCC blessed 13 technologies as compliant with the broadcast flag. Including, TiVo to Go. Oh, heavenly joy! Oh, fortunate day! Our wonderful technological masters, those geniuses of centralized planning, have deigned to bestow on the public the ability to move video files between 10 separate devices with the use of a registered dongle. What visionaries! What prophets, who can see what is appropriate use of technology and what is not!

If only we had had the FCC's sage advice when Sony developed the Betamax. The Supreme Court, in its ignorance, allowed the technology to develop unhindered. What a mistake! Could they not see that there must be regulation to channel and guide the foolish technologists who don't understand how markets function? How dare they create without approval? We must only permit innovation that has been properly considered by government regulators, without which markets would not function efficiently.

Only the FCC has the wisdom to see what is necessary for copyright law to function properly. Courts should certainly not be permitted to interpret copyright law, they might decide that a device without DRM had substantial non-infringing uses and thus be free of regulation. The FCC sees through this ridiculous test and knows copyright needs stronger protection than that. Do the courts not see the devastation the VCR has wrought on Hollywood?

Can not the technology companies see that free and incredibly valuable bandwidth is not enough of a subsidy for broadcasters? Why, that spectrum would go to waste without the FCC's wise guidance on the devices that could receive communication on that spectrum.

All hail the FCC! Let us give thanks for the boons they permit!

Read their glorious words: FCC Approves Digital Output Protection Technologies and Recording Method Certifications [PDF].

Comments (6) + TrackBacks (0) | Category: Broadcast Flag


1. Alexander Wehr on August 5, 2004 10:14 PM writes...

And, at the same time, it has assited the MPAA in implementing the SSSCA bill which was shot down in congress by requiring mandatory drm on any electronic device that accesses a television signal.

(theyre still in court on grounds they overstepped their authority and are administering copyright policy, from the court's current actions, i predict a loss on their part)

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2. Hal on August 6, 2004 06:17 AM writes...

The process is bad, having to submit your designs for government approval. But the result seems OK - people will be able to share their TiVo shows with their friends and family, but not with everyone in the world.

How effective is the EFF's campaign about DRM and PVRs going to be if the worst thing they can say about HDTiVo is that it "only" lets you share copyrighted programs with 10 people? That's more than enough for most people.

I'll bet a lot of copyfighters were hoping this decision would go the other way. As long as DRM stays on the trend towards being relatively light and permissive, it's going to be hard to get the masses upset about it.

Most people don't care that much about process. It's results that matter.

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3. Ernest Miller on August 6, 2004 03:02 PM writes...

We will see how "ok" the results are over time, how convenient it will be to use registerd dongles that might get lost over time. Why don't software companies still use dongles? Inconvenience, of course.

Have you ever let a friend borrow a CD, DVD or book? How exactly would that work with this system? "I'm sorry, but I'm at my limit of friends and family, can't let you borrow this book." Doesn't sound "light and permissive" to me. But then again, I like to lend my friends media and say, "I think you'll like this," or "you really should check this out."

Oh, and by the way, the broadcast flag won't keep HDTV off the internet. So, we get regulation of technology and innovation, significant inconvenience, and infringement continues unabated.

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4. M. Cunningham on August 6, 2004 05:40 PM writes...

How much more damage will it take before the FCC is regarded for what it is - an unlawful government agency? No other government body has the ability to create, interpret and enforce it's own laws. The fact that this is exactly what the FCC does is clearly against the separation of powers provisions in the U.S. Constitution.

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5. Alexander Wehr on August 6, 2004 09:04 PM writes...

"he process is bad, having to submit your designs for government approval. But the result seems OK - people will be able to share their TiVo shows with their friends and family, but not with everyone in the world.

How effective is the EFF's campaign about DRM and PVRs going to be if the worst thing they can say about HDTiVo is that it "only" lets you share copyrighted programs with 10 people? That's more than enough for most people."

Parond me Hal, their "robustness" standards are at direct odds with the structure of the GPL.

In other words.. it KILLS open source.

Further, DRM by its very nature robs the consumer of many other legitimate uses in attempts to control the internet.

It is a disgusting trampling of consumer and individual rights to fair use.

I want to be able to use my computer as a base for a home entertainment system. I already use it as my stereo, and i want to make it my TV and VCR too.

under this ruling, this FLAG, i am not allowed to record HDTV.

I'm moving to canada.. screw this country.

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6. Alexander Wehr on August 6, 2004 09:15 PM writes...

The true basis for war on DRM:

our current ease of use from computer to computer is what allows our economy to grow.,

This cross platform compatibility, and the wide choice of programs both proprietary and free, are what keep the computing platform viable.

DRM measures destroy this balance. They destroy the interoperability, not only from one OS to another or one computer to another, but within the computer itself.

because DRM is expensive and by nature hidden from the user, open source is ostracised from the marketplace if DRM becomes common.

if DRM becomes mandatory, opensource vanishes.

The importance of open source can never be overstated. open source packages do a lot of bridging of compatibility between systems like windows and mac. Linux is the most stable software available for servers. Open source freeware applications provide innovative impetus to proprietary companies to provide ever increasing quality.

as an economist, i can say with authority DRM systems are the most terrible plague to be invented since nuclear weapons or bioagents.

The worst part is, politicians know NOTHING about what they are doing when they make mandates, allowances, or give assistance to implementation of DRM.

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