July 11, 2004

Guerrilla Documentary Copyfighting

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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.

July 09, 2004

FCC Chairman Powell Has a Blog - No, Seriously

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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).

July 07, 2004

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

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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?

July 06, 2004

The INDUCE Act (IICA) and the Broadcast Flag

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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...

First, a caveat. Although the broadcast flag walks like copyright regulation and quacks like copyright regulation, the FCC assures us it is not copyright regulation and makes no changes to copyright law. This is good, because the FCC doesn't have authority to regulate copyright (FCC Sued Over Broadcast Flag - Yay! and Significant Procedural Victory in Broadcast Flag Lawsuit).

Anyway, since the broadcast flag is not actually copyright law, the INDUCE Act will not directly affect it. However, enforcement of the broadcast flag will certainly be affected. After all, in its order, the FCC found (among other things) that (Report and Order and Further Notice of Proposed Rulemaking):

We recognize that piracy concerns are likely to be addressed through a number of approaches, including consumer education, law enforcement, and changed business models. In order to effectively address these concerns, however, we believe that technological steps must be taken now before the DTV transition matures any further. [emphasis added]
If a company violates the broadcast flag, not only will they be in trouble with the FCC, but the FCC's findings in the broadcast flag report will be cited as evidence against them in an INDUCE Act infringement suit. Reasonable men would have taken the FCC's findings into account, wouldn't they? And the government wouldn't be wrong about the steps that "must be taken" to reduce piracy, would they? Thus, violators of the broadcast flag regulations will not only get FCC fines, but would likely be easily nailed by a subsequent civil infringement lawsuit (with its massive penalties). Ouch.

Also, imagine if we are lucky and the courts force the FCC to abandon broadcast flag regulation. This wouldn't happen for months. In the meantime, many companies are gearing up to produce HDTV equipment that meets broadcast flag requirements. Indeed, some companies are already selling such compliant equipment and would continue to do so even in the absence of FCC requirements. However, what happens to the companies that decide not to go along with the broadcast flag regulations once they are eliminated? Again, the FCC's own findings would be used as evidence in an INDUCE Act case against those who don't play along with broadcaster's DRM fantasies. The INDUCE Act might be enough for the copyright holders alone to force consumer electronics companies into compliance with the broadcast flag, even if the FCC couldn't require it.

Another possible effect of the broadcast flag regulation in light of the INDUCE Act is that the Act may close the broadcast flag export loophole (Broadcast Flag Loophole Watch - Manufacture for Export). If the broadcast flag regulations are necessary domestically, I'm not sure why they wouldn't be similarly necessary for those devices exported overseas. Now, maybe the FCC doesn't see why we should cripple our sales to countries overseas, but why should Hollywood be so reticent? After all, we know what all those lousy Canadians who live near the border will do with their HDTV tuners ... they'll capture US HDTV video signals and pirate them!

June 28, 2004

INDUCE Act + Broadcast Flag Treaty = ???

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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.

June 02, 2004

Significant Procedural Victory in Broadcast Flag Lawsuit

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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].

May 26, 2004

Broadcast Flag Quote of the Day

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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.

May 06, 2004

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

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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.

April 28, 2004

The Broadcast Flag vs. Indecency Enforcement

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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?

April 15, 2004

FCC: Notice of Inquiry: Broadcast Flag for Digital Radio

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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.

April 13, 2004

The FCC and Idiotic Idiot Box "Innovation"

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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...

For example, Engadget notes that a company called MyDTV has gotten $7 million in financing to provide pop-up ads on television programming (Pop-ups coming to digital TV?). From the company's website:

A Mel Gibson fan is watching a news program. An on-screen message recommends the viewer watch "Mad Max Beyond Thunderdome," which will air on a PPV channel in one minute. The viewer may then choose to click on the alert to tune to the movie. The viewer is happy because he saw a recommendation to see his favorite actor and is willing to pay the $3.95 to watch the movie as a result.


Let's say a Jennifer Aniston fan is watching a news program. An on-screen promotion alerts that viewer that Jennifer will be interviewed on your channel in one minute. The viewer may click on the promotion to tune to the interview. The viewer is happy because he saw his favorite TV star, and your ratings improve as a result.

Just what we need. Pop-ups for television. Now, this isn't necessarily a bad idea, but to have it imposed by the gatekeeper distributer is a bad idea. I would be interested in such a service, if it were based on open standards and I could subscribe only to those notification services that I trusted, just as I subscribe to the RSS feeds I am interested in. Will the FCC allow such a system to be built on top of the broadcast flag? Unlikely, especially when the broadcasters undoubtedly complain and threaten to withold valuable content.

PVRblog reports on cable operators struggling to promote Video-on-Demand (VoD) in the face satellite TV's major PVR push (PVRs: satellite vs. cable). According to Television Week, "only 38 percent of cable subscribers are aware that they can get DVR service from their cable operators, compared with 78 percent of satellite customers" (Cablers Start a Fire Under VOD Plans). So what is the response from cable operators? Are they promoting their PVR services more? No, that would empower consumers too much. Instead cable operators are (in PVRblog's helpful summary):

  • boosting video-on-demand (VOD) by working with the film distributors so that movies are available on VOD as soon as they are released to movie rental stores
  • video-on-demand double features (essentially a two-movies-for-one-movie-price on a theme)
  • "video magazines on niche topics such as yoga, cars and bird watching" (huh?!)
  • promotions on the TV Guide Interactive channel

I had to read the last sentence of the TV Week article twice. "'If we do our job [by providing VoD niche magazines] ..., people will think twice about leaving for satellite,' he [a regional VP with Mediacom] said." I originally thought the quote said "If we do our job ... people won't think twice about leaving for satellite."

Video on Demand is, apparently, the sort of innovation the FCC supports, as they are doing their best to cripple DVRs.

April 07, 2004

The Broadcast Flag Treaty - Draft Available

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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...


EFF's Consensus at Lawyerpoint, an anti-broadcast flag blog, reported on the origins of this treaty back in August 2002 (Europeans push WIPO Broadcast Treaty to create "fixation rights"). Last October James Love, director of the Consumer Project on Technology, wrote (with comments and suggestions from EFF's Cory Doctorow) an excellent analysis of an earlier draft of the treaty ([DMCA-Activists] On the Proposed WIPO XCasting Treaty). CPTech maintains a website tracking the treaty (The proposed WIPO Treaty for the Protection of the Rights of Broadcasting, Cablecasting and Webcasting Organizations).

Sui Generis Copyright-like Protection for Broadcasts

The treaty would give (among others) the following rights to broadcasters, cablecasters and, if the US has its way, webcasters: fixation, reproduction and distribution. Of course, there is no limit on what is covered by the treaty, as long as it is "broadcast" and consists of "sounds or of images or of images and sounds" (although why they couldn't just say "images and/or sounds" is beyond me). In other words, broadcast of public domain works like Dawn of the Dead would be covered along with works for which the broadcaster owns the copyright. Heck, you could start a radio station that exclusively broadcast Creative Commons-licensed freely distributable works and keep anyone from recording your broadcast.

Why bother with copyright? Simply "broadcast," or in the US's version, "webcast" all your material. Instead of connecting to an FTP server to get video or music you would connect to an ongoing "webcast" of the media, so that way, the broadcaster can keep control of the media even if it isn't copyrightable.

Article 8
Right of Fixation
Broadcasting organizations shall enjoy the exclusive right of authorizing the fixation of their broadcasts.

No more VCR, DVD-R or TiVo for you. So much for time shifting. Goodbye Sony v. Universal, it was nice knowing you.

This is the mandated broadcast flag. If the broadcaster doesn't want you recording it, you don't have a right to.

Article 9

Right of Reproduction

Alternative N

Broadcasting organizations shall enjoy the exclusive right of authorizing the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts.

Alternative O

(1) Broadcasting organizations shall have the right to prohibit the reproduction of fixations of their broadcasts.

(2) Broadcasting organizations shall enjoy the exclusive right of authorizing the reproduction of their broadcasts from fixations made pursuant to Article 14 when such reproduction would not be permitted by that Article or otherwise made without their authorization.

More broadcast flag goodness. Even if you are allowed to record it, the broadcaster can control how you can reproduce it. That way, if you want to shift the latest Sopranos from the TiVo in the living room to your laptop to watch on the plane, the broadcaster can stop you.

The US and, for some reason, Egypt support alternative "O", which protects broadcasters from reproductions of unauthorized fixations.

Article 10

Right of Distribution

Alternative P

(1) Broadcasting organizations shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of fixations of their broadcasts, through sale or other transfer of ownership.

(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the fixation of the broadcast with the authorization of the broadcasting organization.

Alternative Q

Broadcasting organizations shall have the right to prohibit the distribution to the public and importation of reproductions of unauthorized fixations of their broadcasts.

In other words, no filesharing of broadcasts. Don't you dare make the fixation you made of ABC's broadcast of the President's State of the Union address (SotU) available on KaZaA.

Article 11

Right of Transmission following Fixation

Broadcasting organizations shall have the exclusive right of authorizing the transmission of their broadcasts following fixation of such broadcasts.

Don't webcast what you've saved previously. Not only can't you put your fixation of the SotU on KaZaA, you won't be able to webcast it either.

Now, governments can make the same exceptions to these broadcasting rights as they "provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works." But they don't have to. Nor is it clear to me, under recent copyright decisions, that the Constitution requires the US to do so.

Term of Protection and Formalities

Article 15
Term of Protection
The term of protection to be granted to broadcasting organizations under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which thebroadcasting took place.

Great. Copyright isn't long enough we have to provide protection for the broadcasts for fifty years in addition? So, forty years from now, when your grandchildren want to use a clip from television today to illustrate a report on the popular culture of their grandparent's era, they'll have to clear permissions with the television station that broadcast the clip (assuming we still have television stations then).

The previous treaty had a length of twenty years and, as we all know, broadcasters in countries that signed the treaty have suffered greatly from this length.

Article 18


The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality.

No pesky registration requirements or anything. That way it is very difficult for people to know who owns the rights to what decades from now.

DMCA for Broadcast Flag

Article 16
Obligations concerning Technological Measures
(1) Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by broadcasting organizations in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their broadcasts, that are not authorized or are prohibited by the broadcasting organizations concerned or permitted by law.
Alternative V
(2) In particular, effective legal remedies shall be provided against those who:
(i) decrypt an encrypted program-carrying signal;
(ii) receive and distribute or communicate to the public an encrypted program-carrying signal that has been decrypted without the express authorization
of the broadcasting organization that emitted it;
(iii) participate in the manufacture, importation, sale or any other act that makes available a device or system capable of decrypting or helping to decrypt an encrypted program-carrying signal.
Alternative W
(2) [No such provision]

This is the equivalent of the passage in the WIPO Performances and Phonograms Treaty (WPPT) that the US used as one of the justifications for the passage of the DMCA. So, not only does this treaty require a broadcast flag, it will be illegal to circumvent it.

Article 17
Obligations concerning Rights Management Information
(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute or import for distribution fixations of broadcasts, to retransmit or communicate to the public broadcasts, or to transmit or make available to the public fixed broadcasts, without authority, knowing that electronic rights management information has been without authority removed from or altered in the broadcast or the signal prior to broadcast.
(2) As used in this Article, “rights management information” means information which identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast, and any numbers or codes that represent such information, when any of these items of information is attached to or associated with 1) the broadcast or the signal prior to broadcast, 2) the retransmission, 3) transmission following fixation of the broadcast, 4) the making available of a fixed broadcast, or 5) a copy of a fixed broadcast being distributed to the public.

And don't try to make your copy of the broadcast of the State of the Union look like a legal, unbroadcast version.

Article 21

Provisions on Enforcement of Rights

(1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.

(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights or violation of any prohibition covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.

Many people argued that the WPPT didn't require the US to pass the DMCA, as Congress concluded, because the US already adequately protected the rights of copyright owners. As the US doesn't protect any "broadcast" rights (other than some "theft of service" stuff), this provision would pretty much require a US Broadcast Flag DMCA law to be passed.


This is bad, bad, bad. What more can I really say?

March 22, 2004

Copyfight - The Remix

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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.

March 10, 2004

FCC Sued Over Broadcast Flag - Yay!

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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!

February 12, 2004

Extending the Broadcast Flag

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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.

Posted at 05:37 PM | Permalink | Comments (4) | Email this entry | Category: Broadcast Flag

February 11, 2004

The Inefficiencies of Broadcast Television

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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.

Posted at 05:30 PM | Permalink | Comments (3) | Email this entry | Category: Broadcast Flag | Internet | Open Access

December 12, 2003

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

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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).

November 20, 2003

Hollywood == Tobacco Industry?

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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.

November 19, 2003

Get 'Em While They're Legal

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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

FCC Inconsistency on HDTV

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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

November 18, 2003

Rep. Lofgren Castigates FCC over Broadcast Flag

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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

November 10, 2003

TiVo w/DVD Burner Rocks

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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

Sony Video iPod a Reality

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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.

November 09, 2003

Wash Post Columnist Rips Broadcast Flag

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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.

November 07, 2003

Fight the Broadcast Flag! Use Spread Spectrum!

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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?

November 06, 2003

Advances in Portable Hard Drive Tech

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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?

The Television Tax - aka Broadcast Flag

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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.

Neat New Tool to Be Affected by Broadcast Flag

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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."

November 05, 2003

Broadcast Flag's Impacts Felt Beyond Television

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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.

The FCC - Stupid or Dissimulators?

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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).

Broadcast Flag Loophole Watch - Manufacture for Export

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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.

November 04, 2003

FCC Mandates Broadcast Flag

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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.


What a title for the Salon article! Even worse is this quote from the Viacom/CBS Statement On 'Broadcast Flag':

Today's decision by the FCC is an historic step forward for consumers.

Read the FCC press release (FCC ADOPTS ANTI-PIRACY PROTECTION FOR DIGITAL TV [PDF]). From the "facts" in the press release:

The broadcast flag protects consumers’ use and enjoyment of broadcast video programming. The flag does not restrict copying in any way. [emphasis added]

Technically true, but extremely and exceedingly misleading. Were the definition of "lie" all but emptied of content by politics, I would call this a lie.

Press Statement of Chairman Michael K. Powell [PDF]

Because broadcast TV is transmitted "in the clear, " it is more susceptible than encrypted cable or satellite programming to being captured and retransmitted via the Internet.

And this occurs, how? Plain and pure ignorance on the part of the chairman of the FCC.


Mindful of our ongoing obligation to speed the digital transition and to promote the viability of free over-the-air broadcasting in the digital age, we have navigated a solution that embraces protection and deters piracy without sacrificing innovation or frustrating consumer expectations.

The wisdom of Solomon in action. I imagine that piracy will plummit very soon.

By protecting against digital piracy, we also encourage entertainment companies to deliver via free over-the-air broadcast its most valuable programs.

What protection would this be? Is it the same strength of protection that is keeping DVDs (some of the most valuable programs) off of the internet?

I am hopeful that any court review of this decision can occur before the effective date of our rules.

Yeah, I would imagine so.


Commission action here strikes me as warranted because we are fast approaching a situation wherein new technologies will provide arguably too much power to those who would infringe and pirate the rights of digital creativity.

Translation: Damn that new technology! Heaven forbid people should be able to do only what major corporations have been able to do in the past. You just can't trust the public, only corporations must be allowed to make such decisions.

Consumers would be forced to use a technology not because it provides consumer options or preserves fair use, but because they have no choice. Corporate interests would have trumped consumer interests. Reasonable uses of content by viewers could -- probably would -- be restricted, costs would rise and technology innovation would be hindered. I believe that today’s item, although not perfect, creates an opportunity wherein consumers will have a choice of user-friendly digital content protection systems and wherein the reality of competition will encourage content providers and equipment manufacturers to develop technologies that allow reasonable consumer uses of programming such as copying, recording, and sending digital content securely over the Internet. A technology that locks reasonable personal use of digital content will not be chosen by consumers. Nor will a technology that hampers innovation be accepted by the manufacturers of consumer electronics products.

Which is precisely why the FCC has to mandate the use of the technology, because otherwise, people wouldn't accept it.

The broadcast flag should be about protecting digital content, not about tracking Americans’ viewing habits. Protecting personal privacy is too important to leave to chance.

But it is perfectly acceptable to leave to chance protecting First Amendment rights and fair use. After all, as noted above, consumer surely would not adopt a technology that didn't protect privacy, would they?

As a final matter, I note that I vote for today’s Order with the understanding that it will not affect the rights or remedies available under our nation’s copyright laws and cognizant that it is Congress that ultimately sets national policy in this critical and sensitive area.

Yeah, right.


We are undertaking the digital television transition to benefit consumers and usher in opportunities for new and innovative ways consumers can watch, record and enjoy television. A digital world is likely to accommodate more consumer uses of content that do not run afoul of the copyright laws, and as-yet-undetermined innovative features for time and space shifting, excerpting, and transferring content lawfully. We have no way of knowing who or what will be the next TiVo-like innovation to come forward and be enthusiastically embraced by consumers.

But, we will put these mandates in place that will make such innovation extremely costly. Under the regime as promulgated, would we even have TiVo or the VCR? I think not.

With the case-specific and evolutionary nature of fair use, it is a hard concept to define technologically and not impact it legally. Yet the Commission has no authority to do the latter.

So, the FCC just goes with a technological solution ... legal uses be damned.

By providing some basic assurance that the high value content that is broadcast over digital television will not be widely and indiscriminately redistributed online, we give greater incentive for content producers to make that content available on free over-the-air television.

What is this assurance? It is NON-EXISTENT ... the flag will NOT keep content off the internet, it will only impede legitimate users (and pirates too incompetent to be of any concern).

As we take steps to protect free over-the-air digital broadcast television against the powers of the Internet, we must be cautious, for the sake of consumers and the entertainment industry itself, not to trample its lawful use or inadvertently stifle the next innovative distribution model that could revolutionize the entertainment industry.

Too late. You just did exactly that. Would the internet even exist if the devisers had to show how their technology robustly protected television?

October 29, 2003

Props for Jack Valenti

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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.

For the first time, the MPAA has acknowledged that the industry itself is a serious part of the piracy problem. Indeed, Jack himself has admitted that he violated the uses for which screeners were authorized:

Last year, the MPAA antipiracy department discovered that of the 68 titles sent out last year, 34 were pirated, and wound up mostly in Asia and Russia, where they were stamped into counterfeit DVDs and flung around the world. Recipients of screeners weren't engaged in piracy. But most of them, as I did, gave some movies to relatives and friends who in turn gave them to friends, who gave them to friends, and somewhere in that chain the pirates pounced.

Although this admission is a step in the right direction, it doesn't quite go far enough. Jack is unwilling, understandably, to label himself and his friends "pirates." However, in the past he has been quite willing to toss the "pirate" label around indiscriminately, falsely maligning people who were engaging in laudable fair use practices or, at worst, understandably minor infringements (equivalent to letting non-Academy members view a screener).

Even more interesting are the tactics the MPAA has adopted, after some negotiation, for dealing with piracy:

[Frank] Pierson [president of the Academy of Motion Picture Arts & Sciences] would send to each Academy member a document for signature. The member would receive screeners from the studios with the following provisions: (1) that the screeners, sent in VHS format only, would not leave the member's home, (2) that the member understands the studios reserve the right to identify/watermark the cassettes, (3) that the member is aware that if a screener is pirated and traced back to the member, he or she will be expelled from the Academy. Any member will confirm that this is a severe penalty.

Additionally, screeners will only be sent to Academy members, not other organizations that judge and make awards.

These actions are actually consistent with the MPAA's usual anti-piracy arguments. First, by having Academy members sign an actual piece of paper, we can see that the screeners are not really owned by the Academy members, but rather are licensed to them. Considering that the MPAA maintains that someone who actually purchases a DVD has no real right to the content other than through means the MPAA approves, requiring Academy members to actually acknowledge their limited rights is quite consistent.

By sending the screeners in VHS format only, the MPAA is acting consistent with their belief that digital copies are far worse for piracy than analog copies. Nevermind that you can use the VHS tape to generate a nearly pristine second generation digital copy (which can be reproduced flawlessly from then on), mandating VHS is consistent with previous MPAA arguments about the dangers of digital copies.

Not letting the copies leave the member's home is quite consistent with the MPAA's position on file sharing and the broadcast flag. For the broadcast flag to be at all effective, it is going to have to make it very difficult for people to share files with friends, essentially ensuring that copies of broadcasts never leave the house of the originator. Again, very consistent.

Watermarking is a security option that the MPAA has long been in favor of. Practical consideration, costs and some public outcry have been the only things preventing the MPAA for pushing harder for watermarks. Interestingly, it makes much more sense to watermark such a limited distribution of copies, where every recipient is known (and isn't paying for the copy), rather than have some sort of mandated global watermarking system.

Real consequences for industry insiders. Though the MPAA says that they have no intention of suing Academy members for failing to abide by these rules, merely expelling them, the MPAA isn't giving up the right to sue if they so choose. This is pretty consistent with the MPAA's anti-piracy positions, particularly assuming that Academy membership has a non-trivial value.

I think the screener ban is a bad idea (and I'm not so sure the studios didn't engineer it somewhat to favor their product at the expense of independents), but I do have to acknowledge that the MPAA is acting with more consistency than usual.

October 28, 2003

TiVo is Officially an Endangered Species?

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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.

Broadcast Flag Update - Some Success for Consumer Rights Groups

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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?

Consumer Electronics, Linux and the Broadcast Flag

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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!

FCC Comments on Regulating Internet Explained

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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."

October 27, 2003

FCC to Regulate Whole Internet?

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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.

Copyright Law Creates Analog Resurgence?

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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.

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

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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!).

October 24, 2003

One Way Convergence "Loop" in NY Times

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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....

October 22, 2003

Dell, Convergence and the Broadcast Flag

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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).

October 21, 2003

CDT's Broadcast Flag Report

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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.

The report does make some good suggestions with regard to improving the Broadcast Flag (such as eliminating the "market acceptance" criteria, which would enshrine an oligopoly of consumer electronics and movie/television studios as arbiters of innovation, and requiring transparency in licensing). However, some of the other "improvements" remain quite troublesome:

Functional criteria should be used instead of, or alongside, the "as effective as" test. Such functional criteria should be rooted in clear goals for the flag, should be reasonably easy to understand, and should permit developers to self-certify. For example, criteria could include "effectively frustrates the Internet distribution of protected content to the public” or "effectively frustrates the Internet distribution of protected content to more than x devices" (where x is a somewhat arbitrary but reasonable number).

I'm sorry, but "effectively frustrates the Internet distribution of protected content to the public" does not seem to be me reasonably easy to understand. This criteria seems somewhat circular. After all, isn't that what the Broadcast Flag is supposed to do?

It should be made clear that software solutions are on the same footing as hardware solutions in terms of eligibility for being approved technologies. Software solutions offer some advantages; for example, software would be upgradeable if breached.

Sure, software solutions will be acceptable ... so long as they are backed up by trusted computing hardware.

Secure online transmissions, to limited numbers of addressees, should be facilitated.

Translation: Better make sure that Grandma's devices can recognize the show you recorded for the kids to watch while Grandma babysits them at her place. Too many devices registered? Too bad.

More important than these major and minor tweaks to the Broadcast Flag proposal, CDT recognizes that many questions remained unanswered, including issues such as the precedents set for technology mandates (particularly in regard to computers), protection of fair uses, and retrenchment and inhibition of innovation. CDT calls for further discussion on these issues. It is a bit late for that. The FCC is going to mandate a Broadcast Flag. What will be the incentive for the MPAA to discuss these issues after the mandate has occurred?

FCC Foolishness on the Broadcast Flag

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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).

Dear Public Television - Thanks For Nothing!

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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.

October 20, 2003

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

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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.

Future of Digital TV Threatened By More Than Broadcast Flag

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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.

October 16, 2003

Broadcast Flag Rule by the End of the Month

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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!).