About this Author
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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Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T

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Category Archives

July 03, 2005

July 02, 2005

Lack of Broadcast Flag Hurts Emergency Alert System?

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Posted by Ernest Miller

That's what a column in Communications Engineering & Design Magazine claims (Fallout from the Broadcast Flag Decision).

Some folks are rejoicing that the Court overturned the FCC’s Broadcast Flag rules. But it seriously constrains the usefulness of the flexible digital broadcasting technology now rolling out in this country. The FCC has a lot of authority over cable set-top boxes, but very little authority over TV receivers. Consequently, improvements to the broadcast Emergency Alert System (EAS) that take advantage of the capabilities of digital broadcasting cannot be implemented.
The argument is that without the authority to mandate how television receivers are built then the FCC doesn't have the power to enforce an advanced emergency alert systems in digital broadcast. Well, maybe they don't, but does this mean that the EAS "cannot" be implemented? Where does the "cannot" come from? Why can't there be voluntary agreement to implement?
The FCC has a proceeding underway to modernize the EAS. The Association of Public Television Stations proposed a data broadcasting approach like the cable industry adopted to deliver Emergency Alert messages to the public. The NAB supported a Common Alerting Protocol to be carried within digital TV bitstreams. Good idea! But too bad. Digital TV sets don’t have to decode those messages. And the FCC has no authority to require digital TVs to comply. That’s the fallout from the Court’s decision.
Okay, so the FCC doesn't have this authority. Therefore, it would have been better for the FCC to simply assume an arbitrary authority for making this and any other number of mandates with regard to everything that might have to deal with a television signal at some point in the future? Um, yeah, right.

First, it is entirely unclear that this is a necessary government intervention. Sounds like something that the market can agree on and it makes a great selling point. "You want to buy this new digital receiver; it will get you better information in emergencies! Don't go with that cheap one that doesn't have this feature." Who is opposing adding this capability to their systems and why are they opposing it? Is there really a problem here? If so, what is it?

Second, if enforcing this standard requires government intervention, why wouldn't this be easily resolved by Congress? They have time for an anti-flag-desecration amendment, but they don't have time to pass a law to ensure our televisions have the best emergency alert system capabilities? Who is going to vote against that? And why would it be better for the FCC to have an arbitrary grant of authority for all sorts of things, and not simply a specific grant of authority for emergency alert systems?

Third, what the heck does the Broadcast Flag have to do with emergency alert systems anyway? Seriously, this is the biggest stretch in an argument on behalf of the Broadcast Flag I've seen. It shouldn't surprise anyone to note that the author of this piece is a supporter of the Broadcast Flag.

The FCC adopted the Broadcast Flag rules because broadcasters said there was a need to control the redistribution of broadcast programming over the Internet. This wasn’t about copy protection, because TV programs can legally be copied to your heart’s content. It was about controlling where a program (or portion of a program) can be viewed. It was about viewing a New York City news program in Miami. Or adding part of a TV soap opera to your blog. Or adding short clips of Univision’s Spanish language TV programming to a distance-learning course in the Spanish language.
And the author thinks this is a good thing. Heaven forbid you take advantage of your First Amendment rights to add a part of a TV soap opera to your blog for purposes of commentary and critique.

When the Broadcast Flag returns, and you know it will, expect this "the emergency alert system needs it" argument to rear its head. Watch for proposed grants of authority to the FCC to "fix" this emergency alert systems "problem" that, by coincidence of course, also grants the FCC authority to mandate the Broadcast Flag.

via Mark's Monday Memo

Comments (2) + TrackBacks (0) | Category: Broadcast Flag

June 24, 2005

June 22, 2005

EFF Update on Broadcast Flag

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Posted by Ernest Miller

On Monday I noted that EFF was warning the public about Hollywood trying to sneak the Broadcast Flag through the Senate as part of an appropriations bill (Broadcast Flag to Sneak Through Senate Tomorrow?!?).

We now have an update from EFF: Flag Day

At the beginning of this week, we learned that a Broadcast Flag amendment might slip past the gates in an appropriations bill. It's easy to see how this could happen. Despite strong opposition to the flag in the Internet community, in many circles it's still considered "non-controversial."

But that was Monday evening.

Within the space of a few hours, the committee was Slashdotted, BoingBoinged and Instalanched.

By 6 p.m. on Tuesday, the 27 members of the Senate Appropriations Committee received more than 11,000 emails and faxes. That's nearly 500 faxes an hour. Dianne Feinstein alone received more than 2,600 messages in her inbox. Kay Hutchison, the senior senator for Texas, received 1,441 letters. [emphasis, links in original]

However, it ain't over til it's over. Read the whole thing ... and if you haven't already, TAKE ACTION.

crossposted from Copyfight

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

June 20, 2005

Broadcast Flag to Sneak Through Senate Tomorrow?!?

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Posted by Ernest Miller

BoingBoing is warning that the MPAA is trying to sneak the Broadcast Flag through the Senate in a giant appropriations bill (URGENT: Call your Senator RIGHT NOW or Live With the Goddamned Broadcast Flag Forever!). They have a handy list of Senators and their phone numbers for those who are on the subcommittee. Call, if you can.

From EFF: You Have 48 Hours to Stop the Broadcast Flag

EFF's action alert, geared to people with senators on the committee, is here. Public Knowledge also provides a number of excellent talking points in an email urging readers to phone their senators

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

June 17, 2005

June 15, 2005

June 14, 2005

June 07, 2005

CDT's 'Balanced Framework' for Copyright Completely Unbalanced

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Posted by Ernest Miller

The Center for Democracy and Technology has released a report today arguing on behalf of a balanced approach to copyright enforcement, a carrot and stick (CDT Proposes Balanced Framework for Online Copyright Protection). via Constitutional Code, which has many worthwhile comments

Read the 14-page report: Protecting Copyright and Internet Values: A Balanced Path Forward: Version 1.0 – Spring 2005 [PDF].

Note: I've long favored the carrot and stick approach. See this interview with GrepLaw in September, 2003 (Ernest Miller on DRM, Privacy and Hemingway). (You know, I think my answers stand up to the test of time pretty well.)

However, I think the CDT report favors the stick a bit much, treats citizen/creators as mere consumers, doesn't consider structural reform of copyright law, and doesn't provide much in the way of a carrot, among other flaws.

Read on for a more detailed take on the report...

...continue reading.

Comments (3) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | INDUCE Act

June 01, 2005

Good News on Broadcast Flag in DTV Bill

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Posted by Ernest Miller

Over on Copyfight, Donna Wentworth cites a report that the main author of the mandatory DTV switchover bill, Rep. Joe Barton (R-TX), opposes adding the Broadcast Flag to the bill (CommDaily: MPAA May Not Seek Broadcast Flag in DTV Bill). Quoting Communications Daily, which is not freely available:

The Motion Picture Association of America is unlikely to push for a broadcast flag component in DTV legislation establishing a 2008 hard date because the bill's main author, House Commerce Committee Chairman Joe Barton (R-TX), is against the provision. Meanwhile, the MPAA will keep briefing House and Senate members on a broadcast flag bill's importance and seek other ways to get the content protections it wants.
Given that I reported earlier that no committee members were known to oppose the inclusion of the Broadcast Flag in the bill, this is very good news (Broadcast Flag Rears Its Ugly Head in DTV Transition Hearings). However, as noted, the MPAA is still pushing a separate bill on the matter.

Apparently there is also a new Congressional Research Service report on the Broadcast Flag. More when the report is available.

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

May 29, 2005

May 27, 2005

Broadcast Flag Rears Its Ugly Head in DTV Transition Hearings

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Posted by Ernest Miller

As I predicted (New Bill to Mandate DTV Transition by Jan 2009), there are several Congressmembers pushing for the Broadcast Flag in the DTV transition bill that is being debated in Congress. According to, "Three particular points emerged at the hearing--set-top subsidies, the broadcast flag and predicating a deadline on the budget deficit" (Subsidies Are Sticky Point in DTV Draft Bill):

Several members indicated they'd seek a broadcast flag in any final DTV transition bill, including Reps. Jay Inslee (D-Wash.), Edolphus Towns (D-N.Y.), Elliot Engel (D-N.Y.) and Marsha Blackburn (R-Tenn.). No one actually came out against the flag. [emphasis added]
There is a lot of talk about the subsidy, but who cares? Subsidies will only matter for a couple of years, the changes the Broadcast Flag will implement will last essentially forever. Doesn't any of these representatives realize what a major change they would be making in our technology/innovation environment?
Rep. Elliot Engel, (D-N.Y.): "This is really a budget bill, not a telecom policy bill."
If you add the Broadcast Flag, it becomes a copyright/innovation/technology policy bill.

Now is not the time to give up on the Broadcast Flag! We need to explain to these Congressmembers that people aren't going to appreciate the change to DTV when they can't record a video for a friend who is out of town, or take copies of the kid's favorite shows to Grandma's when she babysits.

Comments (7) + TrackBacks (0) | Category: Broadcast Flag

May 26, 2005

Broadcast Flag Pro and Con in C|Net News

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Posted by Ernest Miller

C|Net News has dueling articles on the Broadcast Flag. Dan Glickman, CEO of the MPAA, argues in favor of (Why the Broadcast Flag Should Go Forward). Tech attorney Jim Burger is in opposition (Why the Broadcast Flag Won't Work).

I'm biased, of course, but I do think Burger gets the best of this one, though I'm not terribly impressed with his implicit support for the DMCA. Glickman certainly has some odd things to say:

Without proper protections, it will be increasingly difficult to show movies, television shows or even baseball games on free television.
No television shows? Then it won't really be television anymore will it? What will we have? 24/7 static? Baseball games? Why the heck would Major League Baseball care very much about the Broadcast Flag? It is hard to believe that there is a major market in baseball game filesharing. As for the movies, sure there are lots of people who want "edited for broadcast with commercial interruptions" movies, instead of a $15 DVD with all sorts of bonus features, especially when they have to wait years after the DVD is available in order to record the broadcast. And, it isn't as if the DVD won't be ripped onto filesharing networks long before the movie is broadcast, thus completely destroying the market, presumably. I guess the MPAA's members will turn down money from television broadcasters because their movies are already being infringed on filesharing networks.
The irony, of course, is that modern cable and satellite delivery systems already have imbedded technical means that maintain the value of digital programming by preventing its redistribution over digital networks.
The irony, of course, is that absolutely all this content is available on filesharing networks anyway. Explain to me how this content has been "prevented" from being redistributed, given evidence that is being redistributed? The MPAA ought to be able to figure out better arguments than ones that are obviously factually challenged.

Comments (3) + TrackBacks (0) | Category: Broadcast Flag

May 24, 2005

New Bill to Mandate DTV Transition by Jan 2009

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Posted by Ernest Miller

Rep. Joe Barton (R-Tx) has released a copy of a draft bill that would force the digital television (DTV) transition to occur by Jan 1, 2009. I've been trying to get ahold of a copy, but haven't had any success yet. The bill is supposedly very fluid at this point, so expect Hollywood interests to push to get the Broadcast Flag into it. There are also a number of other interesting aspects regarding the draft bill and a hearing is scheduled for Thursday.

Broadcasting & Cable reports that one of the major issues in the draft is the size of subsidies so that people can purchase the necessary converters (DTV Draft Bill Sets 2008 Date). They also report on some of the other parts of the draft (DTV Bill Covers Many Bases):

  • DTV channel assignments: By Dec. 31, 2006 the FCC must allocate final assignments between chs. 2 and 51. Appeals of those assignments must be resolved by July 31, 2007.
  • Cable carriage: Cable operators may continue providing all local must-carry TV stations' signals to customers in an analog format, but only if they also make a digital version available. Any high-definition programming broadcast by the stations must be carried without any degradation in signal quality. [Cable companies aren't going to like this]
  • Spectrum auction: Chs. 52-69, which are slated to be reclaimed by the government, would be auctioned by the FCC on April 1, 2008.
  • Consumer education: 45 days after the the bill's enactment, TV set makers must place warning labels on analog-only sets explaining that those sets won't receive TV signals after Dec. 31, 2008 unless hooked up to a converter box or a pay-TV service. From July 1 to Dec. 31 of 2008, TV stations must air a minimum of two 60-second PSAs providing the same information. During the same time frame, cable operators and satellite TV providers shall include that information in monthly bills. The FCC also would be required to engage in a public outreach campaign.
  • DTV tuner mandate: Beginning July 1, 2006, all sets 13 inches and larger that have analog tuners must also contain tuners capable of receiving digital over-the-air broadcasts.
The National Journal's Insider Update discusses the "must-carry" provision and notes that the draft drops public interest standards for DTV, a good thing in my book, although I must say that there is still plenty wrong in our telecommunications regulatory structure (Digital TV Draft Legislation Includes Controversial 'Must-Carry' Language).

Broadcast & Cable has much more on the public interest issue here: Legal Center Lambastes DTV Public Interest.
Read a 19-page report on the issue from Campaign Legal Center: Broken Promises: How Digital Broadcasters are Failing to Serve the Public Interest [PDF].

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

May 18, 2005

May 14, 2005

May 13, 2005

May 12, 2005

MPAA Shopping Draft Broadcast Flag Legislation

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Posted by Ernest Miller

Public Knowledge has what they believe to be draft language from the MPAA to give the FCC the authority to implement the broadcast flag:

An Act

To ratify the authority of the Federal Communications Commission to implement a Broadcast Flag.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


(a) AUTHORITY.-- 47 USC Section 303 is amended to add a new subsection (z) to read as follows:

(z) Have authority to adopt regulations governing digital television apparatus necessary to control the indiscriminate redistribution of digital television broadcast content over digital networks.

(b) RATIFICATION.-- The Report and Order in the matter of Digital Broadcast Content Protection (__ C.F.R. ___) which was adopted by the Commission on November 4, 2003, effective January 20, 2004, and the Order in the matter of Digital Output Protection Technology and Recording Method Certifications (__ FCC Rcd ___) which was adopted by the Commission on August 4, 2004, is ratified.
PK's reaction?:
Public Knowledge President Gigi B. Sohn said, "This language is more sweeping than even the FCC contemplated. It would give the Commission unparalleled new power over the development and use of digital and analog consumer electronics technology. It empowers the FCC to approve technologies that prevent currently used video cassette recorders (VCRs) from working, and would allow the FCC to shut off every TiVo in every home today. Clearly, we hope Congress will reject this big-government, anti-consumer approach."
Perhaps the name of this proposed act will be "The Federal Personal Computers Regulation Commission Act of 2005." One also wonders why the RIAA hasn't gotten into the act, since it applies only to digital television and not digital radio.

Comments (4) + TrackBacks (0) | Category: Broadcast Flag

May 10, 2005

May 09, 2005

May 06, 2005

Victory in Broadcast Flag Case! FCC Has No Authority Says Court

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Posted by Ernest Miller

Civil and consumer rights groups have won in the Broadcast Flag case!

Read the 34-page decision by the DC Circuit Court of Appeals: American Library Association v. Federal Communications Commission [PDF].

UPDATE For those who are unfamiliar with the Broadcast Flag, it was ... it was a regulation promulgated by the FCC at the request of Hollywood that would have required all HDTV receivers to incorporate certain copy controls. Starting this July, all HDTV receivers sold in the US would be required to enforce restrictions on copying HDTV broadcasts that were tagged with the "Broadcast Flag." Although you might be able to record HDTV shows, you wouldn't be able to make additional copies for personal use (such as watching in another room) without a lot of hassle, if it was possible at all, not to mention taking a copy to watch at a friend's house. The ramifications of this authority grab by the FCC were enormous, since it would have, among other things, essentially given them the power to control significant aspects of the design of anything capable of using HDTV signals, i.e., modern PCs.

The conclusion:

The FCC argues that the Commission has "discretion” to exercise “broad authority” over equipment used in connection with radio and wire transmissions, “when the need arises, even if it has not previously regulated in a particular area.” FCC Br. at 17. This is an extraordinary proposition. “The [Commission’s] position in this case amounts to the bare suggestion that it possesses plenary authority to act within a given area simply because Congress has endowed it with some authority to act in that area. We categorically reject that suggestion. Agencies owe their capacity to act to the delegation of authority” from Congress. See Ry. Labor Executives’ Ass’n, 29 F.3d at 670. The FCC, like other federal agencies, “literally has no power to act . . . unless and until Congress confers power upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). In this case, all relevant materials concerning the FCC’s jurisdiction – including the words of the Communications Act of 1934, its legislative history, subsequent legislation, relevant case law, and Commission practice – confirm that the FCC has no authority to regulate consumer electronic devices that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission.

Because the Commission exceeded the scope of its delegated authority, we grant the petition for review, and reverse and vacate the Flag Order insofar as it requires demodulator products manufactured on or after July 1, 2005 to recognize and give effect to the broadcast flag. [emphasis in original]

Congrats to everyone involved! Expect press releases from various interested parties soon.

UPDATE 0910; 0940 (more links); 1005 (more links); 1040 (more links, intro); 1120 (more links)

Read on for News and More Highlights from the decision...

...continue reading.

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

October 04, 2004

FCC Announces DTV Consumer Education Initiative - Forgets to Mention Broadcast Flag

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Posted by Ernest Miller

Today, the FCC announced a new initiative to inform the public about digital television (DTV). Read the press release: Chairman Powell Announces Major DTV Consumer Education Initiative - “DTV – Get It!” [PDF].

The FCC has also set up a website for the "education" campaign: Warning, the website renders fine on IE, but does not render well on the latest version of Firefox. Geez, they must actively work on being clueless.

Unsurprisingly, the website and announcement fail to mention the broadcast flag. There are some links to info about the broadcast flag if you click on "regulatory info" which takes you to a different FCC page, but you have to scroll down on the secondary page.

I guess the broadcast flag isn't something the FCC wants to educate people about.

Spokespeople for the FCC were not immediately available for comment.


A spokesperson for the FCC has told me "At this point what we are working on is getting the consumer to understand what goes one when they buy a TV ... .Educating consumers on what the DTV transition is and why it is important for them." The broadcast flag is not part of that education process now, but may (or may not) be in the future.

Comments (2) + TrackBacks (0) | Category: Broadcast Flag

August 30, 2004

Explain to Me Again Why We Need the Broadcast Flag Treaty

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Posted by Ernest Miller

This past weekend WIRED published an article updating the status of WIPO's Treaty for the Protection of Broadcasting Organizations (Broadcast Treaty Battle Rages On). I'm glad that WIRED is keeping this atrocious bit of international dreck in the news.

However, I have to take issue with a few statements in the article. For example,

The idea that broadcasters should have rights enabling them to combat signal piracy is relatively uncontentious.
Uncontentious among who? Frankly, I find the entire idea of the treaty absurd. We already have an entire category of law devoted to protecting against "piracy." It is called "copyright."

So, let's look at the example in the article of the terrible consequences of not passing this absurd treaty:

The treaty's primary importance, he said, is to give broadcasters a way of protecting against signal piracy. If a broadcaster in, say, Belize has paid for the right to broadcast the Olympics and takes its feed from NBC, it needs broadcast rights to be able to get an injunction against other stations that might copy the feed and send it out.
Well, gee, if I were to copy Belize's Olympic broadcasts and put them on the internet, could I do so without legal consequence? Would I be able to destroy Belize's fragile broadcast industry with impunity? Hmmmm ... let me think .... hell no.

And what would be the law, supported by international treaties, that would keep me from taking bread from the mouth of Belize's broadcasters? That would be copyright law. If I were to rebroadcast the Olympics on the internet, NBC's lawyers would set world records sprinting to the courthouse with lawsuits and requests for preliminary injunction.

And if Belizian broadcasters can't bring a copyright lawsuit, then maybe what we need is Belizian copyright reform and not a new international treaty.

So, explain to me again why we need this new law to protect broadcasters? I haven't figured out why it is uncontentious yet.

Teleread believes that "WIPO" stands for "WIPe Out individual rights" (Hollywood-bought broadcast treaty: No noises from 'populist' Sen. Edwards, presumably).

Read the current draft of the treaty here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].

My take here: The Broadcast Flag Treaty - Draft Available.

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

August 12, 2004

Hatch's Hit List #25 - EFF's Digital Front of Television Liberation

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Posted by Ernest Miller

What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives. Send list suggestions to ernest.miller 8T

Today on Hatch's Hit List: EFF's Digital Front of Television Liberation

The FCC's broadcast flag mandate doesn't go into effect for another 10.5 months or so. Until then, one is permitted to distribute non-broadcast flag compliant devices. Such non-broadcast flag-compliant devices will clearly be capable of aiding and abetting copyright infringement to a very high degree. And what organization is promoting the use of such devices? Why, the EFF, of course.

EFF is busy promoting the development and distribution of non-broadcast flag-compliant devices until the FCC makes it illegal through the Digital Front of Television Liberation, which is not to be confused with Television Liberation's Digital Front (splitters!):

Since machines you've already built will still work in high-def next year, we'd like to make HDTV tuner cards easy to use now, while they can still be manufactured. We want to help the MythTV project work seamlessly with the pcHDTV card so less technical users can beat the broadcast flag. We'll also use these systems as benchmarks against which to compare the capabilities of post-flag HDTV devices. We also want to hear about Windows and Macintosh HDTV tuner cards, with an eye toward helping people make the most of existing pre-flag products.
Once again, EFF claims that they only want to preserve existing fair use rights. Yet their program would preserve the right to infringe as well! You can't protect fair use without also protecting the crime of infringement.

EFF knows that if you preserve fair use rights some people will inevitably abuse those rights to infringe. The worst part is, some people will infringe accidentally if the tools are available. For example, some people might record a show for a friend who is going to be out of town and then give them a copy. Without a broadcast flag to prevent such "friendliness," some people will innocently be seduced into depraved lives of indifference to copyright. Clearly, the EFF's entire digital television project is a not-so-subtle inducement to infringement.

Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic, including Hatch's Hit List: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Hatch's Hit List | INDUCE Act

August 05, 2004

FCC Bestows Its Blessing on Technological Innovation

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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

July 27, 2004

INDUCE Act (IICA): Every New Feature Could Trigger Lawsuits

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Posted by Ernest Miller

There has been a great deal of discussion regarding the MPAA and NFL seeking to block TiVo's broadcast flag submission. The basic idea is that TiVo wants to give people the ability to share video files among ten registered devices, so that you could record something on your TiVo in the living room and then transfer it to the TiVo in the bedroom or perhaps your car or vacation home. It is a restricted circle of distribution. But this isn't good enough for the MPAA and NFL, because you might share the programming with a friend in a football blackout zone or something. Thus, they are opposing TiVo's request to the FCC to build something that provides consumer value. I'm sure glad that there wasn't a broadcast flag when the TiVo was initially developed. Good coverage and commentary from Wendy Seltzer (TiVo, Whipsawed by the Broadcast Flag) and Donna Wentworth (You Bought It. They Own It and Hollywood (Finally) Turns on TiVo, Part II), among others. Follow the links.

This is, of course, an excellent example of how the broadcast flag is absurd. However, it is also an object lesson on one of the ways that the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) could similarly be abused.

Originally, the only way to transfer files from a TiVo was to make an analog recording. Although it would have been simple to provide a digital transfer output for TiVo, the company didn't do it out of fear of triggering an MPAA lawsuit, as ReplayTV did (EFF Archives: Paramount v. ReplayTV). TiVo was successful, they didn't get sued (probably because their system was too similar to the clearly protected VCR). However, now that TiVo is trying to add additional functionality (even severely restricted functionality), the MPAA and NFL are trying to stop them. In a world without a broadcast flag, but an INDUCE Act, TiVo would get sued.

In fact, even if TiVo survived the original lawsuit, further INDUCE Act lawsuits could be filed every time there is a significant upgrade in capabilities or additional new feature. Under INDUCE, intent is "based upon all relevant information." New features and capabilities would be relevant information that a previous lawsuit didn't consider. If the copyright industry really didn't like a new technology, and it somehow survived the first lawsuit, further lawsuits are merely a question of waiting for v2.0 (or even v1.2, or similar) of the technology.

What small, innovative companies could survive under such conditions?

Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

Comments (0) + TrackBacks (0) | Category: Broadcast Flag | INDUCE Act

July 11, 2004

Guerrilla Documentary Copyfighting

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Posted by Ernest Miller

Robert Greenwald, an honored (and innovative) director and producer of films, has a new documentary coming out that critiqes Fox News, called OutFOXed. The New York Times Magazine has a lengthy article on many of the issues facing the making of this documentary, most prominently the copyright clearance issues (which are particularly difficult for films) (How to Make a Guerrilla Documentary).

Obviously, the documentary will feature many clips from Fox News, often showing them in a less than flattering light. Fox News famously sued over the title of Al Franken's book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. The case was laughed out of court, but it shows how litigous Fox News is willing to be. So, Greenwald is rightfully afraid that he will be sued, despite the merits of his case. Fortunately, it seems that perhaps Fox News has learned its lesson (their lawsuit helped publicize Franken's book better than anything). According to the Washington Post (annoying reg. req.) Fox News may ignore this documentary (though the statement certainly isn't a promise not to sue) (Too Late to Comment?):

"People steal our footage all the time," says Dianne Brandi, Fox News's vice president for legal affairs. "We generally sort of look the other way."

Nevertheless, there have already been other significant copyright problems, according to the NY Times Magazine article:

Then there was the fact that several major news organizations were unexpectedly refusing to license their clips. (Such licensing is ordinarily pro forma.) CBS wouldn't sell Greenwald the clip of Richard Clarke's appearance on ''60 Minutes,'' explaining that it didn't want to be associated with a controversial documentary about Murdoch. WGBH, the Boston PBS station, wouldn't let Greenwald use excerpts from ''Frontline'' for fear of looking too ''political,'' it said.

An aside: Of course, why use copyright law if there are other means to prevent the making of these sorts of films. Take, for example, the process Greenwald used to make the film:

''Outfoxed'' was made in an unusually collaborative fashion. In January, Greenwald rigged up a dozen DVD recorders and programmed them to record Fox News 24 hours a day, seven days a week, for about six months.
Fortunately, Greenwald didn't have to deal with the broadcast flag, which would make using such clips significantly more difficult (and expensive).

Another critical aspect to note about Greenwald's film is the innovative distribution methods he uses, bypassing traditional gatekeepers:

Last year, Greenwald followed up that effort with ''Uncovered,'' his critique of the Bush administration's case for war in Iraq, which featured interviews with former intelligence analysts, weapons inspectors and Foreign Service officers. Once the film wrapped, Greenwald turned the traditional distribution model on its head. Rather than taking the time-consuming route of entering film festivals or courting theater distributors, he sold the DVD of ''Uncovered'' through the Web sites of various left-liberal organizations: MoveOn, The Nation magazine, the Center for American Progress and the alternative-news Web sites AlterNet and BuzzFlash.
Through such means he has sold tens of thousands of DVDs. This is no mean feat and it shows the power of alternative distribution. After all, what conventional distributor would be willing to publish such an obvious lawsuit target?

Another aside: The people behind the film recognize the potential for even more innovative distribution.

Jim Gilliam, a 26-year-old former dot-com executive and a producer of ''Outfoxed,'' is enthusiastic about the way Greenwald's projects meld grass-roots politics with the culture of the Internet. He predicts a future -- augured by events like MoveOn's competition for the best 30-second anti-Bush advertisement -- in which young political filmmakers will be as likely to wield a camera phone as a digital camera. ''It won't be long before people will be shooting and editing short documentaries that they'll stream from their blogs,'' he says.
Yep. Sounds like broadcatching.

Luckily, given all the major legal issues involved, Greenwald has Ubercyberlaw Prof Larry Lessig and others working with him on the copyright issues (outfoxed). Says Lessig,

As the Times article describes, Greenwald’s style for distributing documentaries may be the beginning of something new — political criticism, using interviews and clips, making a strong political point, distributed through DVDs and political action groups. (See some other examples here). On what theory does he, and others, have the right to use such material without permission? On the free culture theory we call the First Amendment: Copyright law must, the Court told us in Eldred, embed “fair use”; “fair use” is informed by First Amendment values; the values of the First Amendment most relevant here are those expressed in New York Times v. Sullivan. As with news-gathering, critical political filmmaking needs a buffer zone of protection against the overreaching of the law. And if the potential of this medium — now liberated by digital technology — is to be realized, we need clear precedents that establish that critics have the freedom to criticize without having to hire a lawyer first. [links in original]
Indeed. Lessig's right:
Watch the movie. Celebrate the freedom it represents. It is a particularly American freedom that we should celebrate and practice more often.

Comments (1) + TrackBacks (0) | Category: Broadcast Flag | Broadcatching/Podcasting | Copyright

July 09, 2004

FCC Chairman Powell Has a Blog - No, Seriously

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Posted by Ernest Miller

FCC Chairman Michael Powell has launched a blog [As Dave Barry would say: I'm not making this up] (Michael Powell Joins the Blogosphere). So what does the chairman have to say in his first post? Well, he reiterates his commitment to deregulation, that is, when it doesn't upset entrenched interests too much.

Our struggle to define appropriate regulatory regimes to promote innovation is not limited to the telephone sector. The Commission's digital television transition is yet another example of how difficult the struggle can be.
Yeah, the broadcast flag is really going to promote innovation. Why, just think of the useless technology developed because television was an open platform! To borrow some concepts from Prof. Frink, "I predict that, if the FCC were in charge of developing the VCR, that within 100 years a VCR will record twice as much programming, be 10,000 times larger, and so expensive that only the five richest moguls in Hollywood will own them."
For example, I need to hear from the tech community as we transition to digital television. It may be possible to deploy innovative wireless services in the unused spectrum between broadcast stations (for example, there is no channel 3 or channel 6 here in San Francisco)...Broadcasters, however, claim these unused channels as "their" spectrum. Yet a public policy that favors innovation and experimentation would seek to open these unused channels to develop new wireless services…just look at how much value has been created in the sliver of spectrum that has become Wi-Fi! If the high-tech community believes that new digital technologies will enable this kind of new thinking about and use of spectrum, then I need to know that.
*ahem* Chairman Powell, it may be possible to deploy innovative television services based upon an open television platform. Broadcasters, however, claim that they must control and direct development of a closed platform, that the platform is "theirs" and requires a "broadcast flag." Yet a public policy that favors innovation and experimentation would seek to open the platform to develop new services…just look at how much value has been created in the open analog television platform! Many in the high-tech community believe that new digital technologies will enable this kind of new thinking about and use of an open television platform. *ahem*
Regulated interests have about an 80 year head start on the entrepreneurial tech community when it comes to informing regulators what they want and need, but if anyone can make up for that, Silicon Valley can. This is important not just for Silicon Valley—it's essential to insure that America has the best, most innovate communications infrastructure.
You know, unless it upsets Hollywood. Because Hollywood will ensure that America has the best, most innovative communications infrastructure.

via JD Lasica

Jeff Jarvis has some harsh words for Powell's "blog" (Daily Stern - July 9, 2004).

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Broadcast Flag | News | Telecomm

July 07, 2004

TiVo vs. Media Center Edition vs. INDUCE Act (IICA) vs. Broadcast Flag

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Posted by Ernest Miller

A couple of weeks ago Eric Harrison wrote a head-to-head comparison of Windows Media Center Edition and TiVo. (TiVo versus Media Center Edition PC's - finally!). TiVo won, partly because the original Windows machine had all sorts of defects, but mostly because TiVo is a more solid performer. Paul Robichaux's comparison goes into more depth about the MCE (Media Center Eye for the TiVo Guy).

Jupiter Research analyst Michael Gartenberg looks at Harrison's comparison and adds some thoughts of his own, as JR is working on a report on standalone DVRs (Tivo comparison to Windows Media Center):

First, the PC is more flexible. If I want to store and view my pictures, music and other video content, burn to DVD, copy to a portable media player and stream that content to other devices in my home, I can do that with the PC and not with the TiVo. The MCE EPG is also more flexible. Try and record the West Wing on TiVO, just the 7pm episodes shown on channel 44, not the other boradcasts. You can't do it. It's a snap on MCE. (why would you want to? to record a series according to airdates so you can watch the episodes in order). On the other hand, my TiVO never crashed, locked up, missed a scheduled record or any other annoying issue. Clearly the dedicated funcitonality makes for a more stable platform. Part of the MCE experience issue is that it's still a PC. You still need to exit to the shell to get some things done. You need to re-boot from time to time. If MCE is going to make inroads in the next year it needs to be able to shed the PC experience and live 24/7 as a consume electronics device.
Here are my thoughts. I already have a TiVo. I already have a PC. Most of the people who are considering buying a TiVo already have a PC as well. If the TiVo could simply talk to the PC, then they (and I) could get the benefits of consumer electronics reliability and the flexibility of a PC without having to buy a whole new, rather expensive PC.

So why don't DVRs offer this flexibility? They get sued into oblivion: EFF Archives: Newmark v. Turner Broadcasting System. Need I mention that the IICA (née INDUCE Act) will make bringing such company-resource-draining lawsuits easier? Or that, in a little less than a year, the government will burden such capability with mandatory DRM: Digital Television Liberation Front?

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Broadcatching/Podcasting | Copyright | Digital Rights Management | INDUCE Act

July 06, 2004

The INDUCE Act (IICA) and the Broadcast Flag

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Posted by Ernest Miller

A little over a week ago, I discussed how the IICA (née INDUCE Act) might end up extending the already overbroad Broadcast Flag Treaty (INDUCE Act + Broadcast Flag Treaty = ???). Today I continue my series on how various aspects of the copyright law may interact with the INDUCE Act by discussing the FCC's domestic broadcast flag regulation. Read on...

...continue reading.

Comments (0) + TrackBacks (0) | Category: Broadcast Flag | INDUCE Act

June 28, 2004

INDUCE Act + Broadcast Flag Treaty = ???

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Posted by Ernest Miller

The WIPO Treaty for the Protection of Broadcasting Organizations would basically give copyright protections (fixation, reproduction, distribution, DMCA) to broadcasters, cablecasters and, if the US gets it way, webcasters (whatever that means). Read more about this dangerous draft treaty here: The Broadcast Flag Treaty - Draft Available.

The WIPO treaty doesn't call for anything like the INDUCE Act, but to implement it, the US would basically have to extend most basic copyright law (and the DMCA) to cover broadcasts. What do you think? Will Congress revisit and change copyright law to apply it to broadcasters, or will Congress basically port over everything in copyright law to the new broadcast rights law? If the US signs the Broadcast Flag treaty, you don't think that broadcasters would get less protection do you?

Yep, yet another reason to make sure the INDUCE Act doesn't pass.

Comments (0) + TrackBacks (0) | Category: Broadcast Flag | INDUCE Act

June 02, 2004

Significant Procedural Victory in Broadcast Flag Lawsuit

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Posted by Ernest Miller

Prof. Susan Crawford reports good news regarding a court challenge to the broadcast flag (Broadcast flag order).

Several groups, including the American Library Association, Public Knowledge, Consumers' Union and others, have challenged the FCC's jurisdiction to issue the broadcast flag rule. A very short version of the argument is that Congress didn't give the FCC carte blanc to regulate all consumer electronics that might have to deal with a video signal. Anyway, the FCC claimed that the court should wait to hear the challenge until the FCC has considered requests to make the existing rule even more aggrandizing. The court has rejected that argument and ordered the case to continue undelayed. Read the one page court order: American Library Association v. Federal Communications Commission [PDF].

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

May 26, 2004

Broadcast Flag Quote of the Day

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Posted by Ernest Miller

Andrew Grumet: "The XML button is the anti broadcast flag."

Caveat: I think that using the XML button for too many things can lead to confusion, but I definitely agree with the sentiment.

Comments (0) + TrackBacks (0) | Category: Broadcast Flag | Broadcatching/Podcasting

May 06, 2004

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

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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

April 28, 2004

The Broadcast Flag vs. Indecency Enforcement

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Posted by Ernest Miller

So, I've been doing a lot of thinking about the FCC's indecency enforcement lately, and it just struck me how the broadcast flag will inhibit enforcement of the prohibition on obscene, indecent, or profane depictions on broadcast.

According to the FCC's page for indecency complaints (Obscene, Profane & Indecent Broadcasts), complainants are asked to provide the following:

Information regarding the details of what was actually said (or depicted) during the allegedly indecent, profane or obscene broadcast. There is flexibility on how a complainant may provide this information. The complainant may submit a significant excerpt of the program describing what was actually said (or depicted) or a full or partial recording (e.g., tape) or transcript of the material.
In whatever form the complainant decides to provide the information, it must be sufficiently detailed so the FCC can determine the words and language actually used during the broadcast and the context of those words or language. Subject matter alone is not a determining factor of whether material is obscene, profane, or indecent. For example, stating only that the broadcast station “discussed sex” or had a “disgusting discussion of sex” during a program is not sufficient. Moreover, the FCC must know the context when analyzing whether specific, isolated words are indecent or profane. The FCC does not require complainants to provide recordings or transcripts in support of their complaints. Consequently, failure to provide a recording or transcript of a broadcast, in and of itself, will not lead to automatic dismissal or denial of a complaint. [emphasis in original]

Although a recording is not strictly required, obviously it would be very useful to have one when making a complaint. "Did I just hear/see what I thought I heard/saw? Let's go to the tape (or more likely, the hard drive)." However, if copying the broadcast is prohibited (as enforced by the FCC itself), it will be very difficult for average citizens to make recordings to make transcripts and to bolster their complaints about indecency.

I can imagine broadcasters inhibiting copying of "racy" shows in order to reduce the possibility of being fined for indecency violations. Heck, I can imagine broadcasters having "do not record buttons" in place of "bleeping." That way, when someone displays something on broadcast the FCC might think they shouldn't, the broadcaster can ensure that no copy is made by the average citizen.

Of course, who expects the FCC to be consistent and have coherent policies?

Comments (5) + TrackBacks (0) | Category: Broadcast Flag | Freedom of Expression

April 15, 2004

FCC: Notice of Inquiry: Broadcast Flag for Digital Radio

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Posted by Ernest Miller

Well, the official NOI isn't available publicly yet - a spokesperson for the FCC said it would be available on the internet in a couple of days. Of course, that doesn't stop them from putting out a press release: FCC Explores Rules for Digital Audio Broadcasting [PDF].

As rumored, the FCC is going to start the process for considering a broadcast flag rule for digital radio (among a lot of other changes as well):

Subjects raised for comment in the Notice of Inquiry include digital audio content control and international issues.

The subtitle of the press release is: "Goal is to Promote the Introduction of Digital Radio Services for Americans."

That sounds awfully similar to what they said about the television broadcast flag. I'll provide full details on the NOI when it is available.

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

April 13, 2004

The FCC and Idiotic Idiot Box "Innovation"

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Posted by Ernest Miller

Public Knowledge's President, Gigi Sohn, has an op-ed in C|Net News today on the FCC's digital media/broadcast flag powergrab (FCC is taking wrong turn on digital media). She points out a couple of the dumb things the FCC plans to do with their claimed power to regulate digital media. However, if the FCC gets away with the broadcast flag, imagine all the dumb ideas content providers will try to foist upon us.

Read on...

...continue reading.

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

April 07, 2004

The Broadcast Flag Treaty - Draft Available

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Posted by Ernest Miller

Well, technically, the treaty is called the WIPO Treaty for the Protection of Broadcasting Organizations, cuz heaven knows they're all faced with extinction. The draft treaty will be discussed June 7-9 by WIPO's Standing Committee on Copyright and Related Rights (SCCR), which will then "decide whether to recommend to the WIPO General Assembly in 2004 that a Diplomatic Conference be convened." A diplomatic conference can adopt a treaty. The treaty will not go into effect, however, until a certain number of countries have acceded to it. The draft of the treaty is available here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].

This treaty is really a nasty bit of work. It will give broadcasters, not copyright holders but broadcasters, a number of exclusive rights in their broadcasts, such as fixation, reproduction and distribution, whether or not the broadcast is of a public domain work. Moreover, the treaty would require signatories to prevent circumvention of those rights.

Oh yeah, the treaty would also apply to "cablecasters" and the United States (all alone on this one, apparently) wants the treaty extended to cover "webcasters." What exactly constitutes a webcaster isn't entirely clear, perhaps only streaming, perhaps HTTP. While the US is not a signatory to the previous treaty on broadcast, our efforts on negotiating this one indicate we are likely to sign on.

Read on for a look at this monstrosity...

...continue reading.

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | Internet | Telecomm

March 22, 2004

Copyfight - The Remix

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Posted by Ernest Miller

Donna Wentworth has made her blog, Copyfight, a must-read since its beginning. That is why I am honored to join her and some most excellent colleagues in continuing Copyfight as a group blog. I will be posting along with Elizabeth Rader, Jason Schultz, Aaron Swartz, and Wendy Seltzer. Read the greeting message: Copyfight--the Expanded Edition. The blog description:

Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development and technological innovation that creates--and will recreate--the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

I'll continue to post here, of course, especially my longer pieces.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Broadcast Flag | Civil Liberties | Copyright | Digital Millennium Copyright Act | Digital Rights Management | Internet | News | Trademark

March 10, 2004

FCC Sued Over Broadcast Flag - Yay!

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Posted by Ernest Miller

The big news this morning is that EFF, Public Knowledge, Consumer Federation of America, Consumers Union and five library associations led by the American Library Association have filed a lawsuit against the FCC to block the broadcast flag. Read the press release: FCC Faces Suit on Regulation of Digital Broadcast Television. Read the statement of issues: ALA v. FCC, Statement of Issues [PDF].

The only document available is really quite short with only four issues raised:

1) Whether the Commission exceeded its statutory authority under the Act [Communications Act of 1934, which created the FCC] by imposing content redistribution control regulations on equipment manufacturers, including without limitation, whether the Commission erred in interpreting the scope of its ancillary jurisdiction under the Act.
2) Whether the Commission exceeded its jurisdiction by establishing a regulatory scheme that restricts the copying of copyrighted content even though the Commission has not been given any such authority by the copyright laws.
3) Whether the Commission's decision to prescribe the broadcast flag and other findings in the proceeding were supported by substantial evidence in the record, including without limitation, evidence of the the need for the broadcast flag and its costs and benefits.
3) [sic] Whether the Commission acted arbitrarily and capriciously in violation of the Administrative Procedure Act in concluding that the broadcast flag was an appropriate method of DTV broadcast content protection given the acknowledged weakness of broadcast flag technology and the costs and benefits of the broadcast flag.

Unfortunately the third and fourth issues are really longshots. Government agencies have much discretion in these sorts of decisions. Even if their logic is seriously flawed, they generally get away with making bad calls.

However, the statutory authority questions are much stronger. Without more documentation, I can't really judge them, but if the broadcast flag is blocked, it will likely be because the FCC doesn't have the authority to require it.

Here's hoping the lawsuit does succeed!

Comments (2) + TrackBacks (0) | Category: Broadcast Flag

February 12, 2004

Extending the Broadcast Flag

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Posted by Ernest Miller

Video Business Online (reg. req.) reports on the latest efforts by Hollywood to take control of all devices that connect to a television (Analog Hole Creates a Chasm for Studios). The tagline is: "Execs say gap between playback and display devices impedes new business." Video Business Online is an industry rag, so you can't expect them to be entirely unbiased. The proper tagline should have been: "Hollywood Execs say impeding new business only way to save old business."

Not satisfied with the broadcast flag existing requirements, Hollywood is calling for even more restrictive standards including requiring that display devices also include DRM. No video on your legacy television or PC LCD for you:

In comments expected to be filed this week with the Federal Communications Commission, the studios will ask government regulators to allow content owners to include "selectable output control" in the implementation of the broadcast flag, Fox senior VP of content protection Ron Wheeler said.
The studios want the flag to signal receiving devices to turn off certain kinds of outputs unless those outputs are compatible with studio-approved copy protection technology.

If the FCC doesn't have the authority to do this, "the studios may seek special legislation this year that would grant the FCC the authority." Additionally, the studios want to ensure that DRM is upgradeable, so that when it is cracked (as is inevitable), software can be updated to new and improved DRM.

I am somewhat optimistic that the FCC won't condone this foolishness. Can you imagine the outrage if the FCC required every new HDTV reciever to be incompatible with every analog TV in America? On the other hand, I wouldn't bet against the FCC kowtowing to television broadcasters, particularly in an election year and especially if the requirement will only take effect a year after the election.

Comments (4) | Category: Broadcast Flag

February 11, 2004

The Inefficiencies of Broadcast Television

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Posted by Ernest Miller

C|Net News reports that Major League Baseball is having difficulty getting a premium for internet "broadcast" rights (MLB throws high heat at Web portals). I put the term "broadcast" in quotes, because the internet doesn't really support broadcast. As Dana Blankenhorn writes on Corante blog Moore's Lore, MLB wrongly expects the internet to recapitulate television broadcast (Prove It).

The problem for MLB is not simply that broadband adoption rates aren't great and streaming video is pretty weak, but that the internet reduces (though it has not yet eliminated) distribution bottlenecks. Under today's regime, each of the television networks is a government telecomm regulations created portal. Because there is such a limited number of these television portals, they receive more traffic than they would in a more open distribution system. Consequently, the networks are willing to pay MLB more than they would otherwise be willing to pay under an efficient, open system.

On the internet there are portals, of course, but there are many fewer limitations on distribution. Thus, there aren't "networks" and most attempts to create them have pretty much failed. Remember Sure, MSN and AOL still have network-like elements, but as tools that help people aggregrate their preferred content (such as RSS) develop, the idea of a network of content determined from the top down begins to look a bit silly. MLB will be able to charge for their content (how much I'm not sure), but they won't be able to get subsidies from a top down network. If MLB is smart they will work on ways to ease the aggregation of their content with other content their audience will like.

However, I'm not really all that interested in how the MLB can thrive on the internet. What strikes me in this story is how inefficient broadcast television is. The lesson here is not that MLB doesn't get it. The lesson is that we have massive ineffiencies in our telecommunication regulation policies when it comes to broadcast television. The strange (though not unexpected) thing is, the FCC seems blind to them. In a recent speech, FCC Chairman Michael Powell came out strongly against regulating the internet and protecting the open nature of the network (Preserving Internet Freedom: Guiding Principles for the Industry [PDF]).

There is much to praise in these principles. Too bad there is no mention of applying them to broadcast television.

Here are some of the principles:

  • Freedom to Access Content - Not if you are trying to get that content on broadcast, cable or satellite. I'm not talking about a right to free content, but open access. My local cable company doesn't carry G4TV and I can't get it. I can get, but not the broadcast version. Why does the broadcaster/cable/satellite company get to make this choice? Why not let consumers (i.e., the market) determine more directly what is available than allow the existing gatekeepers to make the choice?
  • Freedom to Use Applications - Two words: Broadcast flag. Rather than allow the development of all sorts of new applications to take advantage of the existing network (such as TiVo), the FCC would rather give the broadcasters effective veto power over developing new technologies. The economic growth, uncertainty of "killer" apps and technological development are arguments for letting creativity run riot on the internet. Why is this not applicable to broadcast?
  • Freedom to Attach Personal Devices - Two words again: Broadcast flag. Creativity must be stifled in order that broadcast will thrive, apparently.

The broadband providers argue that without the ability to control access as well as determine what applications and personal devices may be used, they will be unable to make sufficient profit to continue rolling out broadband. Indeed, they won't roll it out. However, these arguments are bogus, and Powell is right to reject them. Of course, these are the same arguments used by the broadcasting industry with regard to HDTV. There, apparently, these arguments make sense. Of course, it would have been nice to call the bluff of the existing broadcast networks. If they didn't want to use the HDTV frequencies (afeard o' piracy), the FCC should have offered to transfer the frequencies to someone who would use them without forcing additional ineffiencies on the market.

It is great the Powell wants to preserve freedom on the internet. Too bad he is not consistent when it comes to broadcast television.

Comments (3) | Category: Broadcast Flag | Internet | Open Access

December 12, 2003

Fight the Broadcast Flag - Give TiVos as Holiday Presents This Year

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Posted by Ernest Miller

Using a TiVo is a conversion experience. It transforms the way you interact with broadcast media and creates entirely new expectations regarding entertainment, even more so, in many ways, than MP3 players. This is why I am excited by a number of reports this week regarding personal media recorders, such as a story in Newsday that notes a high demand for DirecTV set-top boxes that include TiVo (TiVo-Based Set-Top Boxes in High Demand).

I'm excited because everyone I know who uses TiVo won't go back to traditional television viewing. Simply using TiVo creates consumer expectations that are going to run smack dab into the anti-consumer mandates of the broadcast flag. Sure, the FCC says that the broadcast flag won't inhibit uses consumers have today, but it does and will. People habituated to the ease of use of TiVo, of burning shows to DVD, of networking television throughout the home, are in for a rude awakening when the broadcast flag takes effect. Frankly, there are going to be some seriously inconvenienced consumers come July 2005 and I would hate to be the politician on the other end of their anger. I can see the bumper stickers now: The FCC can have my TiVo when the pry it from my cold dead fingers.

Of course, the more people habituated to TiVo, the bigger the resulting backlash, which is why I recommend giving TiVos as holiday gifts for all your TiVo-less friends and family (there is a good chance it will be the best gift they get this season). I'm not really a big believer in consumerism ... but sometimes consumerism and activitism go hand in hand.

Of course, I'm using TiVo in the generic sense. Add the homemade touch (like those holiday cards you made from posterboard, glue and sparkles in elementary school) by building your friends an open source TiVo (Freevo, MythTV, KnoppMyth, XMLTV). By the way, MythTV explicitly supports the pcHDTV card and undoubtedly will support software HDTV as well (GNU Radio: Hacking the RF Spectrum with Free Software and Hardware).

Comments (3) + TrackBacks (0) | Category: Broadcast Flag | Tools

November 20, 2003

Hollywood == Tobacco Industry?

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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

November 19, 2003

Get 'Em While They're Legal

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Posted by Ernest Miller

Thank goodness! The TiVo-addict friendly PVRBlog reports that HDTV-capable TiVos will be available for sale the first quarter of 2004 (HDTV-recording TiVo). See a picture of the device here: TiVo HD DVR. What this means, of course, is that such devices will be available without broadcast flag implementation, at least until July 2005, as many of the commentators on PVRBlog note.

Interestingly, PVRBlog is selling a home-modified TiVo (extra capacity, wireless connectivity) on eBay (Upgraded Series 2 188hr TiVo, HMO & wireless). Pretty good price right now, too. Unfortunately, under the current regime we won't be seeing too many home-modified devices after July 2005.

via Gizmodo

Comments (2) + TrackBacks (0) | Category: Broadcast Flag | Tools

FCC Inconsistency on HDTV

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Posted by Ernest Miller

The Detroit News reports that the FCC is planning to deny "dual must carry" for television broadcasters (FCC won't require cable operators to carry digital TV shows). Under "dual must carry" the cable companies would be required to carry both the analog and HDTV signals from the television networks. Without "dual must carry" the broadcasters would have to decide which signal the cable company carried. If they insisted on the analog signal, the majority of Americans who receive television via cable would have no incentive to buy HDTV systems. If the broadcasters insisted on the HDTV signal, they would lose the majority of Americans who do not have HDTV receivers yet.

The broadcasters are stuck between a rock and a hard place. It was precisely the difficulty of the transition that was one of the main justifications for giving broadcasters additional bandwidth so that they could continue to broadcast analog and HDTV at the same time. Apparently, this is far too burdensome on the cable companies:

"Commissioners seem to think there'd be too much of a burden on cable without sufficient public benefit," said Blair Levin, an analyst with Legg Mason Wood Walker Inc. who was an FCC chief of staff.

Funny, the commissioners didn't seem to care about the burden on the consumer electronics or personal computer industries (not to mention the consumers themselves) when they mandated the broadcast flag. Really, which is more burdensome, forcing cable companies to carry a few more channels or seizing control over huge swaths of the hardware market? I think the answer has more to do with which industry has the most effective lobbyists in the FCC. Really, who has the most effective lobbyists in the FCC, the cable companies that have had to deal with and capture lobby the FCC for decades or the consumer electronics and computer industries which have relatively seldom had to deal with mandates like the broadcast flag?

So, not only do we get the broadcast flag, the FCC delays the transition to HDTV once again. The consumers and citizens benefit from this inconsistency, how?

via Smart Cog

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November 18, 2003

Rep. Lofgren Castigates FCC over Broadcast Flag

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Posted by Ernest Miller

Rep. Zoe Lofgren (D - San Jose, CA), has written a nice commentary castigating the FCC's broadcast flag ruling in the Mercury News (FCC rule could harm tech innovation). Let's only hope that representatives for places other than Silicon Valley will take a similar consumer and citizen-friendly position.

via JD's New Media Musings

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November 10, 2003

TiVo w/DVD Burner Rocks

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Posted by Ernest Miller

The very interesting Mark Evanier has purchased one of the new TiVo's with recordable DVD which I wrote about a couple of weeks ago (TiVo is Officially an Endangered Species?). He has written a fairly substantial review from his personal experience with the device (Toy Story). His opinion is mostly positive, though there are some v1.0 issues. Overall, though, this is the device that any TiVo lover will want (and everyone who has actually used a TiVo loves it). Forget HDTV ... this is the future of digital television, if only the FCC would recognize the fact and get out of the way.

via Gizmodo

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Sony Video iPod a Reality

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Posted by Ernest Miller

Gizmodo reports that Sony's new personal video player will soon be available in Japan (Sony's Personal Video Player is a reality). The device can hold 31 hours of video and can be uploaded via USB 2.0. No word on when the device will be available in the US, but hopefully before the broadcast flag mandate takes effect.

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November 09, 2003

Wash Post Columnist Rips Broadcast Flag

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Posted by Ernest Miller

Washington Post Fast Forward columnist Rob Pegoraro has written quite an attack on the FCC's Broadcast Flag mandate (FCC Deserves a Digital Thanks for Nothing). This is a reporter who gets it:

The Federal Communications Commission has figured out how to make digital television more appealing to the millions of consumers who haven't bought into it: Force manufacturers to make hardware that's less capable than what's sold today.

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November 07, 2003

Fight the Broadcast Flag! Use Spread Spectrum!

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Posted by Ernest Miller

Arnold Kling is mad as hell and he isn't going to take it anymore (Broadcast Flag This). He is calling for massive civil disobedience against the FCC with regard to the Broadcast Flag (An Open Letter to Jack Valenti). However, his idea of disobedience is not to hack the flag, but rather to hack the spectrum. Kling is calling for the public to use the assigned HDTV frequencies for Spread Spectrum Wireless in order to really revolutionize distribution:

By re-allocating spectrum from HDTV to wireless IP, we can kill two legacy birds with one stone. We can hasten the demise of the phone companies--because with a wireless "last mile" the wireless Internet can replace traditional land lines and cell phones; and we can show Jack Valenti, the movie industry, and the television industry what it really means to "score a big victory for consumers."

Nifty idea which I support, however, I'm just not sure how practical it is. Where will I get the hardware and software to do this?

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

November 06, 2003

Advances in Portable Hard Drive Tech

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Posted by Ernest Miller

Yesterday, C|Net News took a look at Toshiba's advances in small hard drives for portable devices (Tiny Toshiba drive gets a boost). These hard drives, which are only 1.8" in diameter, about the size of a credit card, can now store 40GB of information. They may already be used in the iPod and similar Hitachi drives are being used in Dell's new Digital Jukebox MP3 players. 40GB can store approximate 6 full-length movies or dozens of hours of television - all in something that fits in a shirt pocket. Heaven forbid that such innovative uses develop without the not-so-friendly regulatory arm of government controlling that development. Just how successful would the Diamond Rio have been if it had needed FCC approval first?

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The Television Tax - aka Broadcast Flag

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Posted by Ernest Miller

Gizmodo points out how Nokia's new television/cellphones may have a significant surcharge (~$190) due to government regulation (Nokia's TV phone might cost a little extra). The Broadcast Flag? No, this surcharge is due to the license tax that many European countries charge for owning a television. At least in most European households you only have to pay the tax once, no matter how many televisions you own. In the US, the new Broadcast Flag tax will require you to pay for the additional equipment for each and every television you own.

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Neat New Tool to Be Affected by Broadcast Flag

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Posted by Ernest Miller

Gizmodo points out a truly nifty little product - an external TV tuner with a USB connection that you can use for your PC or laptop (New external USB TV tuner from Canopus). The system comes with software that will let you record your favorite shows... for now. I wonder how much more expensive the device will be after July 1, 2005. I also wonder how difficult it will be after July 2005 to transfer shows from your laptop (copied while on the road) to your legacy home network - the answer according to the FCC will be "impossible for the average consumer."

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November 05, 2003

Broadcast Flag's Impacts Felt Beyond Television

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Posted by Ernest Miller

C|Net News' Declan McCullagh analyzes and reports on the FCC's broadcast flag mandate (Are PCs next in Hollywood piracy battle?). He notes the major and unprecedented impact this will have on PC design and manufacture. For the first time, the government is mandating how PCs may operate and how they may be networked. Those PCs that do not comply with the FCC's mandates will have to be crippled in their ability to use certain types of information. What a wonderful, freedom-enhancing action the FCC has taken. If this is the cost of HDTV, then give me analog television. Heck, give me black and white.

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The FCC - Stupid or Dissimulators?

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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).

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Broadcast Flag Loophole Watch - Manufacture for Export

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Posted by Ernest Miller

Okay, so I've been reading the FCC's Broadcast Flag requirements and I've noticed what appear to be a couple of potential loopholes for those interested in maintaining consumer rights past the July 1, 2005 deadline (Report and Order and Further Notice of Proposed Rulemaking). According to the FCC's new report, it is illegal for manufacturers and distributers in the US to provide non-DRM'd equipment (effective July 1, 2005) to US citizens, but perfectly legal to manufacture the devices here and sell or distribute them overseas:

§ 73.9009 Manufacture for Exportation.
The requirements of this subpart do not apply to Demodulators, Covered Demodulator Products or Peripheral TSP Products manufactured in the United States solely for export.

The FCC, apparently, believes that foreigners won't be pirates, but US citizens and residents will. Either that, or the FCC believes that foreign residents deserve to have media functionality that US citzens don't.


This reminds me of the old cryptographic requirements, only in reverse. In the earlier days of the web, there were a number of websites that provided cryptographic programs for download, as long as the downloaders were in the US, since it was illegal to export the programs, but not to distribute them domestically. The websites offering the programs for download made some attempt to block people from downloading the programs overseas.

Here, the situation is reversed. It is illegal to distribute domestically, but not to export. Thus, you can write an open source demodulator without DRM, as long as it is solely for export. I imagine you can make the program downloadable, as long as you make some effort to ensure people can't download the program from within the US.

This is a significant improvement over the DMCA, which prohibits virtually all distribution. Under the DMCA, you can't distribute DeCSS at all. Under this regulation, you could distribute the equivalent of DeCSS, as long as you distributed it only to those outside the US. Thus, for open source software developers in the US, they can distribute their work overseas (which will then be redistributed right back to the US).

Caveat: This is based on a quick reading of the regulation. I may be missing something that closes this loophole.

Comments (2) + TrackBacks (0) | Category: Broadcast Flag | Digital Rights Management | Open Source

November 04, 2003

FCC Mandates Broadcast Flag

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Posted by Ernest Miller

Salon reports that the FCC has approved the Broadcast Flag (FCC approves Internet anti-piracy tool):

While all five commissioners supported the order, Jonathan Adelstein, one of two Democrats on the five-member panel, said the decision did not safeguard viewers' privacy.


...continue reading.

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October 29, 2003

Props for Jack Valenti

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Posted by Ernest Miller

You know, I actually have to give Jack Valenti props over the recent screener brouhaha, which he discusses in an OpinionJournal commentary this morning (Sorry, Screeners). One of my biggest complaints about the MPAA has been that they've concentrated their anti-piracy efforts on the average consumer, the vast majority of whom are not engaged in nor have any desire to engage in piracy. At the same time, the MPAA was ignoring the piracy that was coming from within their own industry. For these reasons, I considered the MPAA to be a pack of hypocrites. Now, however, the recent screener ban has made me reconsider my opinion. This doesn't mean that I agree with the MPAA, just that I am no longer so sure they are inconsistent weasels. Weasels, yes, inconsistent, not so much anymore.

...continue reading.

Comments (0) + TrackBacks (0) | Category: Broadcast Flag | Copyright | File Sharing

October 28, 2003

TiVo is Officially an Endangered Species?

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Posted by Ernest Miller

Gizmodo brings word of a brand new TiVo that includes a fast DVD burner and non-subscription basic service (Pioneer's DVD recorders with TiVo). The devices are expensive (MSRP starting at $1,199), but can store 80 hours of video and burn a one-hour show in as little as three minutes. The DVDs can then be shared with friends and family, and are generally compatible with legacy devices. Interestingly, the Pioneer Burner webpage has the following tagline:

Your VCR is officially an endangered species

Given the Broadcast Flag mandate and an analog resurgence, it is probably Pioneer's Burner that is endangered.

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Broadcast Flag Update - Some Success for Consumer Rights Groups

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Posted by Ernest Miller

C|Net News has an update on the political machinations behind the Broadcast Flag fight (FCC nears vote on TV 'broadcast flag'). There are numerous policy divisions among the various players, of course. Some of the divisions are not-so-surprising, but some are not entirely expected (by me, at least). Good news, it looks like the consumer campaigns from organizations like EFF and have had some effect:

Washington sources said the resulting barrage of consumer lobbying has been heard at the FCC, and has helped influence commissioners' deliberations.

Keep them cards and letters coming, y'hear?

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Consumer Electronics, Linux and the Broadcast Flag

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Posted by Ernest Miller

Linux Insider reports on the progress Linux is making in the consumer electronics industry (Linux and the Consumer Electronics Industry). The article opens with an interesting quote:

"If an operating system does not easily allow other devices to connect or third-party software to be written for a device, it will lose," said Lloyd Switzer, director of consultancy Stratego. "And the more open a device becomes, the more Linux-like it becomes, so why not just use Linux?"

This is all well and good, but isn't it ironic that just as Linux begins making inroads into the consumer electronics industry, the FCC intends to mandate a Broadcast Flag that will make open source software almost impossible to use in or with many consumer electronic devices? Thanks a lot FCC!

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FCC Comments on Regulating Internet Explained

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Posted by Ernest Miller

As noted yesterday (FCC to Regulate Whole Internet?), there was an extremely disturbing quote from an FCC official in the New York Times:

An F.C.C. official said, for instance, that the broadcast flag could contain software code that was recognized by computer routers in a way that the program would self-destruct after passing through three routers while being e-mailed by a user.

This quote seemed to raise the possibility that the FCC was considering regulating internet routers. However, there seems to be a somewhat less evil interpretation. Although the quote is still somewhat confusing, particularly the reference to email, Seth Schoen has provided an explanation in the comments section of Freedom to Tinker (Comments: Broadcast Flag Confusion). Ed Felten summarizes thus:
The mystery sentence looks like a very confused attempt to explain the fact that DTCP-over-IP sets the Time-To-Live field on its IP packets equal to three.

This doesn't mean that we shouldn't be worried about the regulations the FCC will require in order to make the hopelessly broken Broadcast Flag "work."

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October 27, 2003

FCC to Regulate Whole Internet?

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Posted by Ernest Miller

I wrote about this earlier today (FCC to Regulate Routers - Critics of Broadcast Flag Get Mainstream Press) but it bears emphasis and should be very worrisome if true, as Ed Felten notes on Freedom to Tinker (Broadcast Flag Confusion). There is a downright scary quote in today's New York Times' (reg. req.) article on the Broadcast Flag (Critics Press Case on TV Piracy Rules):

An F.C.C. official said, for instance, that the broadcast flag could contain software code that was recognized by computer routers in a way that the program would self-destruct after passing through three routers while being e-mailed by a user.

Felten is right when he says,

Somebody is really confused here about how the Internet works. Maybe it's the reporter, or maybe it's the FCC source, or maybe (God forbid) both.

If this statement bears any connection to reality, it's cause for serious worry. I can't think of any way of translating the statement into a technically coherent form that doesn't involve the FCC redesigning the basic workings of the Internet.

Comments (0) + TrackBacks (0) | Category: Broadcast Flag | Digital Rights Management | Open Access

Copyright Law Creates Analog Resurgence?

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Posted by Ernest Miller

Frank Field brings up an interesting point on his Furdlog regarding LAMP (Reinventing the Jukebox? Or rejecting digital over copyright?):

This strategy should scare the entertainment industries, not to mention the consumer electronics firms that have committed to digital delivery. This project shows that there is enough resistance to the current construction of copyright in the digital realm that people are prepared to design around the strictures, at the expense of the supposedly better technology. I believe that, if the FCC approves the broadcast flag, a similar response will arise in the television industry.
Consumer backlash is only going to get stronger, as the copyright industries continue to exploit the opportunities for increased control that digital telecomm offers them.

Frank is right, as usual.

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FCC to Regulate Routers - Critics of Broadcast Flag Get Mainstream Press

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Posted by Ernest Miller

After a week in which it seemed that only the proponents of the Broadcast Flag were getting their voice heard, two articles in the mainstream press provide more of the critics' perspective. WIRED extensively quotes Broadcast Flag foe Fred von Lohmann of EFF (A Case of Piracy Overkill?). Nevertheless, it seems that the FCC is determined to make the terrible mistake of implementing a Broadcast Flag. The mistake might be worse than previously thought, according to the New York Times (reg. req.) article (Critics Press Case on TV Privacy Rules):

An F.C.C. official said, for instance, that the broadcast flag could contain software code that was recognized by computer routers in a way that the program would self-destruct after passing through three routers while being e-mailed by a user.

That's right. The FCC is thinking about regulating email routers so that they scan and filter emails for the Broadcast Flag. That is such a stupid idea I don't know what to say.

And what does "three" routers have to do with it? Is it okay to send email with television shows if it only goes through one router? These officials are unbelievably clueless. Really.


Salon has an excellent article on this as well (Hollywood to the computer industry: We don't need no stinking Napsters!).

Comments (0) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Rights Management | File Sharing

October 24, 2003

One Way Convergence "Loop" in NY Times

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Posted by Ernest Miller

Yesterday, the New York Times (reg. req.) ran a roundup of the latest entertainment home networking gear, mostly PC to TV and PC to Stereo (Drawing PC, TV and Stereo Into an Entertainment Loop). Lots of innovation taking place, but not much of a "loop". There doesn't seem to be much discussion of devices that handle TV to PC. I wonder how much less discussion of such devices will occur with the broadband flag in place. Hmmmm....

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October 22, 2003

Dell, Convergence and the Broadcast Flag

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Posted by Ernest Miller

One of the major concerns that I have regarding the Broadcast Flag is that convergence is going to force government-mandated DRM from televisions into general purpose PCs. After all, the neatest things that digital television can do for the consumer is all handled by computer. Thus, it is with this in mind that I note the following report from C|Net News on Dell's plan to sell flat screen TVs (Dell moves into family room with LCD TV).

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October 21, 2003

CDT's Broadcast Flag Report

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Posted by Ernest Miller

bIPlog is the first, to my knowledge, to point out that the Center for Democracy and Technology has just issued a report on the Broadcast Flag (Broadcast Flag III). You can read CDT's report here (Implications of The Broadcast Flag: A Public Interest Primer [PDF]).

CDT's report strives for even-handedness, and seems to be adopting the "speed bump" approach to the Broadcast Flag. In other words, the Broadcast Flag may not be entirely effective, but it might slow down file sharing by the average consumer. While at first glance this seems like a reasonable compromise, it is, in fact, a major concession to those who seek to monopolize and eliminate First Amendment rights to the benefit of copyright holders. The Broadcast Flag will hardly hinder internet distribution at all (how many people are actually ripping MP3s as opposed to sharing MP3s they've downloaded from another source), but will certainly be a major impediment to fair use and consumer rights.

...continue reading.

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FCC Foolishness on the Broadcast Flag

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Posted by Ernest Miller

Reuters has an interesting quote on the "Broadcast Flag" from Kenneth Ferree, head of the FCC's Media Bureau (FCC to Head Off Internet Piracy of TV, Officials Say):

It [the Broadcast Flag] will simply prevent consumers from illegal piracy, from mass distribution over the Internet, which is the problem with music file sharing.

Uh, yeah, right. The level of cluelessness (or mendacity) is higher than I thought.


Kevin Werbach agrees (It's worse than I thought).

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Dear Public Television - Thanks For Nothing!

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Posted by Ernest Miller

Just thought readers of this blog might want to know where Public Television stands on the issue of the Broadcast Flag. They're all for it. Indeed, in a letter to the chief of the FCC's Media Bureau dated October 8, 2003, they want to be sure that the FCC make no exemption to the broadcast flag for "news, public affairs and/or educational programming" (Broadcast Flag Letter [PDF]). That's just great. Heaven forbid the public should be able to copy news or public affairs programming.

My local PBS affiliate will be getting a check from me this year - Not! Instead, I think I'll send them a letter explaining why they won't be getting any of my support anytime soon.

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October 20, 2003

Some Broadcast Flags are Better than Others (But None is Best of All)

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Posted by Ernest Miller

Ed Felten is understandably pessimistic about whether we can convince the FCC not to implement a Broadcast Flag rule. However, as he notes on Freedom To Tinker, some rules are better than others (Reading the Broadcast Flag Rules). He has helpfully provided a list of questions to consider when analyzing how bad the rule we get will be.

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Future of Digital TV Threatened By More Than Broadcast Flag

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Posted by Ernest Miller

The Broadcast Flag issue is incredibly important, see, among many others Copyfight (What's the Deal?). Then let your Reps, Senators and the FCC Commissioners know how you feel, either through EFF or

However, the Broadcast Flag isn't the only issue that puts the future of unrestricted digital television in doubt. Case in point, the New York Times (reg. req.) reports on what may be the coming death of stand alone personal media recorders, such as TiVo (Can Cable Fast-Forward Past TiVo?). A couple of quotes to consider:

"This really is the last stand for the stand-alone boxes; this is a dying product," Aditya Kishore, an analyst for the Yankee Group, a technology consulting research firm in Boston, said in a telephone interview. "This is the last Christmas for the stand-alone TiVo box, or any stand-alone DVR box. By next year, the DVR functionality will be widely available in a wide range of other devices, including the set-top boxes."
"We believe that over time, DVR technology is going to be the standard," said Mark W. Jackson, an EchoStar senior vice president. "Everyone is going to have it. It's just a question of when - and who they get it from, of course."

I certainly hope that the Yankee Group analyst is wrong, because otherwise the question asked by Mr. Jackson becomes much more important. What the NY Times is reporting is that the cable and satellite companies are bundling personal media recorder capabilities with their services and this will eliminate the market for independent devices. The problem with this is that it also gives the cable and satellite companies control over the function of such devices. Skipping commercials, recording anything you want, and networking the device with other devices will almost certainly be restricted. Sounds an awful lot like the broadcast flag.

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Digital Rights Management | Open Access | Telecomm

October 16, 2003

Broadcast Flag Rule by the End of the Month

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Posted by Ernest Miller

As Donna Wentworth noted on Monday, the FCC is likely to hand the MPAA a major victory at the end of this month by mandating DRM for digital TV broadcasts (The DMCA Doesn't Go Nearly Far Enough). Several days later, the Washington Post notes this likely major shift in law to favor DRM (FCC Targets Copying of Digital TV). I particularly like the subtitle for the article: Hollywood Backs Rule That May Irk Viewers. And this concluding quote from the article isn't too bad either:

Another FCC staff member, noting the agency's general reluctance to mandate the use of particular technologies, said that "everyone is kind of holding their nose on this one" but the rule will pass unless it would give too much control to the entertainment industry.

Any rule that mandates DRM is giving too much control to the entertainment industry. Here's hoping the EFF's current action alert regarding the issue gets the FCC to take care in its decision (Stop the MPAA's Broadcast Flag!).

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