Seth David Schoen finds news in something that didn't happen (Broadcast Flag).

I just wanted to point out that it's July 2005 and the broadcast flag is not the law in the United States.

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

Some folks are rejoicing that the Court overturned the FCC’s Broadcast Flag rules. But it seriously constrains the usefulness of the flexible digital broadcasting technology now rolling out in this country. The FCC has a lot of authority over cable set-top boxes, but very little authority over TV receivers. Consequently, improvements to the broadcast Emergency Alert System (EAS) that take advantage of the capabilities of digital broadcasting cannot be implemented.

The argument is that without the authority to mandate how television receivers are built then the FCC doesn't have the power to enforce an advanced emergency alert systems in digital broadcast. Well, maybe they don't, but does this mean that the EAS "cannot" be implemented? Where does the "cannot" come from? Why can't there be voluntary agreement to implement?

The FCC has a proceeding underway to modernize the EAS. The Association of Public Television Stations proposed a data broadcasting approach like the cable industry adopted to deliver Emergency Alert messages to the public. The NAB supported a Common Alerting Protocol to be carried within digital TV bitstreams. Good idea! But too bad. Digital TV sets don’t have to decode those messages. And the FCC has no authority to require digital TVs to comply. That’s the fallout from the Court’s decision.

Okay, so the FCC doesn't have this authority. Therefore, it would have been better for the FCC to simply assume an arbitrary authority for making this and any other number of mandates with regard to everything that might have to deal with a television signal at some point in the future? Um, yeah, right.

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

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

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

The FCC adopted the Broadcast Flag rules because broadcasters said there was a need to control the redistribution of broadcast programming over the Internet. This wasn’t about copy protection, because TV programs can legally be copied to your heart’s content. It was about controlling where a program (or portion of a program) can be viewed. It was about viewing a New York City news program in Miami. Or adding part of a TV soap opera to your blog. Or adding short clips of Univision’s Spanish language TV programming to a distance-learning course in the Spanish language.

And the author thinks this is a good thing. Heaven forbid you take advantage of your First Amendment rights to add a part of a TV soap opera to your blog for purposes of commentary and critique.

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

via Mark's Monday Memo

Over on BoingBoing, Cory Doctorow rips apart Sen. Diane Feinstein's (D-CA) letter to a constituent concerning the Broadcast Flag (Diane Feinstein on the Broadcast Flag: Idiot or Liar?).

As previously feared, the Broadcast Flag was not introduced as an amendment to an otherwise-unrelated appropriations bill. (C|Net News | Senate Punts on Broadcast Flag Option). EFF has more and thanks their supporters (The Flag Dies -- Again).

Will there be other sneaky attempts to get the Flag into law? Of course. That's what lobbyists are paid to do. As a friend in Washington said, "It's that whole eternal vigilance thing, I'm afraid."

But the hotter the topic becomes, the harder it becomes for Hollywood to push. And as time goes on, and more and more Americans have digital televisions and other media devices, the angrier they'll become if what they're accustomed to -- time-shifting, open-source media software, and fair use -- is threatened.

Dan Gillmor also applauds the demise (for now) of the broadcast flag (Broadcast Flag Not in Federal Legislation).

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

We now have an update from EFF: Flag Day

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

But that was Monday evening.

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

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

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

crossposted from Copyfight

On Monday, EFF warned that Hollywood was trying to sneak the Broadcast Flag into a Senate appropriations bill (Broadcast Flag to Sneak Through Senate Tomorrow?!?). Public Knowledge reports that they have been unsuccessful as yet, but there is still the main committee meeting on Thursday to be concerned about.

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

UPDATE 1735PT
From EFF: You Have 48 Hours to Stop the Broadcast Flag

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

Public Knowledge and a number of other organizations have sent a letter to members of the House and Senate Commerce Committees asking them to refuse the Broadcast Flag. Read the press release: Congress Asked Not To Bring Back Broadcast Flag. Read the 3-page letter: Letter: Re: Oppose “Broadcast Flag” Legislation [PDF]. The other signatories are:

American Library Association, American Association of Law Libraries, Association of Research Libraries, Computer & Communications Industry Association, EDUCAUSE, Electronic Frontier Foundation, Elgato Systems LLC, Free Press, Medical Library Association, and Open Source and Industry Alliance.

As Congress considers DTV transition legislation, Public Knowledge is pushing them to adopt a hard date for the return of analog spectrum. In other words, encourage broadcasters to support the transition by making clear they have to give up their analog frequencies by a fixed date. Sounds good to me. Read the press release: Public Knowledge Supports ‘Hard Date’ for Return of Digital TV Spectrum. Read the letter sent to the leaders of the House and Senate Commerce Committees: Letter in Support of Hard Deadline for DTV Transition from Public Knowledge.

Rep. Rick Boucher (D-VA) has a provocative op-ed in C|Net News today, offering a compromise with the MPAA: they get the broadcast flag and consumers get DMCA reform (A Deal Made in Washington?).

If the MPAA expects Congress to ratify a rule that would limit the ability of ordinary consumers to share lawfully acquired digital broadcast television programs with one another, then it shouldn't be surprised if Congress insists that the MPAA accept in return a restoration of the fair use rights taken from consumers through the enactment of the Digital Millennium Copyright Act (DMCA).

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

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

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

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

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

Continue reading "CDT's 'Balanced Framework' for Copyright Completely Unbalanced"

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

The Motion Picture Association of America is unlikely to push for a broadcast flag component in DTV legislation establishing a 2008 hard date because the bill's main author, House Commerce Committee Chairman Joe Barton (R-TX), is against the provision. Meanwhile, the MPAA will keep briefing House and Senate members on a broadcast flag bill's importance and seek other ways to get the content protections it wants.

Given that I reported earlier that no committee members were known to oppose the inclusion of the Broadcast Flag in the bill, this is very good news (Broadcast Flag Rears Its Ugly Head in DTV Transition Hearings). However, as noted, the MPAA is still pushing a separate bill on the matter.

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

Chris Lanier reports that Microsoft's Windows XP Media Center Edition (MCE) won't be supporting CableCards anytime soon, which means no recording cable HDTV on MCE (Why HDTV Support in MCE Won’t Change Until Longhorn Arrives). Why? Engadget succinctly explains (No CableCARD for Windows Media Center Until Longhorn (Probably)):

[T]he problem is the broadcast industry, which is reluctant to let Microsoft add support for CableCARD to Windows Media Center because they don’t think a Media Center PC is a secure enough environment. They prefer what they perceive as the closed box environments of a TiVo or a cable set top box, and believe that a Windows Media Center PC with CableCARD would be a boon to piracy (as if shows aren’t going to get pirated no matter what).

The funny thing is, if Hollywood is successful in forcing the whole trusted computing thing down our throats, they're going to end up reporting to Bill Gates. I'd stay on his good side.

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

Several members indicated they'd seek a broadcast flag in any final DTV transition bill, including Reps. Jay Inslee (D-Wash.), Edolphus Towns (D-N.Y.), Elliot Engel (D-N.Y.) and Marsha Blackburn (R-Tenn.). No one actually came out against the flag. [emphasis added]

There is a lot of talk about the subsidy, but who cares? Subsidies will only matter for a couple of years, the changes the Broadcast Flag will implement will last essentially forever. Doesn't any of these representatives realize what a major change they would be making in our technology/innovation environment?

Rep. Elliot Engel, (D-N.Y.): "This is really a budget bill, not a telecom policy bill."

If you add the Broadcast Flag, it becomes a copyright/innovation/technology policy bill.

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

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

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

Without proper protections, it will be increasingly difficult to show movies, television shows or even baseball games on free television.

No television shows? Then it won't really be television anymore will it? What will we have? 24/7 static? Baseball games? Why the heck would Major League Baseball care very much about the Broadcast Flag? It is hard to believe that there is a major market in baseball game filesharing. As for the movies, sure there are lots of people who want "edited for broadcast with commercial interruptions" movies, instead of a $15 DVD with all sorts of bonus features, especially when they have to wait years after the DVD is available in order to record the broadcast. And, it isn't as if the DVD won't be ripped onto filesharing networks long before the movie is broadcast, thus completely destroying the market, presumably. I guess the MPAA's members will turn down money from television broadcasters because their movies are already being infringed on filesharing networks.

The irony, of course, is that modern cable and satellite delivery systems already have imbedded technical means that maintain the value of digital programming by preventing its redistribution over digital networks.

The irony, of course, is that absolutely all this content is available on filesharing networks anyway. Explain to me how this content has been "prevented" from being redistributed, given evidence that is being redistributed? The MPAA ought to be able to figure out better arguments than ones that are obviously factually challenged.

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

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

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

The National Journal's Insider Update discusses the "must-carry" provision and notes that the draft drops public interest standards for DTV, a good thing in my book, although I must say that there is still plenty wrong in our telecommunications regulatory structure (Digital TV Draft Legislation Includes Controversial 'Must-Carry' Language).

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

Ed Felten points to a conversation concerning the Broadcast Flag between Mike Godwin and Hollywood execs recounted in the National Journal Tech Daily, which is, unfortunately, unavailable to non-subscribers (Broadcast Flag and Compatibility).

"Compatibility is not a goal," he [Rick Lane, vice president of government affairs at News Corp] said, pointing out that there are currently a plethora of consumer electronics and entertainment products that are not interoperable. Lane was seconded by NBC Universal's Senior Counsel for Government Relations Alec French, who also was in the audience.

There is only one goal for Hollywood, and all other values must fall before it.

Cory Doctorow has two new pieces published. You know the drill. Go. Read. Popular Science has Doctorow discussing the Broadcast Flag for radio (You Deserve Your RiVo). In WIRED, Doctorow looks at the progressive stance with regard to the copyfight that the BBC is taking (The Beeb Shall Inherit the Earth). And congratulations are in order as Doctorow's book Eastern Standard Tribe is a finalist for a Locus Award (Locus Award Finalists). You do know you can read the book for free, right? via BoingBoing, of course

Over on Godwin's Law, Mike Godwin responds to criticism of Public Knowledge's attack on the Broadcast Flag as well as its tactics (Unflagging Energy). I would simply add that, in the end, the Broadcast Flag would have done far more to impeded fair use then it would have done to impede infringement; definitely the sign of bad copyright policy.

On BoingBoing Cory Doctorow shares his thoughts about the broadcast flag legislation that the MPAA is shopping around (Broadcast Flag Back from the Dead). Turns out, he doesn't like it. Read more about the proposed legislation here: MPAA Shopping Draft Broadcast Flag Legislation.

Several weeks ago there was a flurry of interest in a recent French court decision that held that DRM on DVDs was illegal. See, among others, Constitutional Code, French Court: DVD Protection Incompatible with Private Copying Exception. Now, Patently-O has a translated copy of the 18-page decision: Monsieur Stephane P v. Universal Pictures Video France [PDF]. Patently-O also makes a connection the recent broadcast flag decision (Make a Backup Copy in Your Own Home: Allowed Only in France).

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

An Act

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

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

SECTION 1. BROADCAST FLAG

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

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

(b) RATIFICATION.-- The Report and Order in the matter of Digital Broadcast Content Protection (__ C.F.R. ___) which was adopted by the Commission on November 4, 2003, effective January 20, 2004, and the Order in the matter of Digital Output Protection Technology and Recording Method Certifications (__ FCC Rcd ___) which was adopted by the Commission on August 4, 2004, is ratified.

PK's reaction?:

Public Knowledge President Gigi B. Sohn said, "This language is more sweeping than even the FCC contemplated. It would give the Commission unparalleled new power over the development and use of digital and analog consumer electronics technology. It empowers the FCC to approve technologies that prevent currently used video cassette recorders (VCRs) from working, and would allow the FCC to shut off every TiVo in every home today. Clearly, we hope Congress will reject this big-government, anti-consumer approach."

Perhaps the name of this proposed act will be "The Federal Personal Computers Regulation Commission Act of 2005." One also wonders why the RIAA hasn't gotten into the act, since it applies only to digital television and not digital radio.

Last week the DC Circuit Court of Appeals stomped all over the FCC's planned broadcast DRM copyright regime (Victory in Broadcast Flag Case! FCC Has No Authority Says Court).

Of course, you might not have noticed this important decision if all you did was pay attention to the FCC's Digital Television Regulatory Information page.

The Broadcast Flag is dead (for now), but that does not mean that user-friendly, pro-consumer television is in the future. Wannabe gatekeepers will continue to push their wares with every trick in the book as this C|Net News story shows (Time Warner Cable DVRs near a million):

The number of Time Warner Cable customers with digital video recorders is closing in on the one million mark. During its announcement of first-quarter results last Wednesday, the cable division's parent company Time Warner said DVR subscribers were up 136,000 to 998,000. Subscriptions to video-on-demand service were up 108,000 to more than 1.6 million.

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

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

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

The conclusion:

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

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

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

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

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

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