EFF Suing The FCC Over Broadcast Flag

Tamor writes "According to this press release the EFF with 'five library associations, Public Knowledge, the Consumer Federation of America, and the Consumers Union' is suing the FCC over its decision to mandate the broadcast flag." Reader MImeKillEr explains "The lawsuit is charging that the FCC exceeded its jurisdiction, acted in an arbitrary and capricious manner, and failed to point to substantial evidence in adopting a broadcast flag mandate. The FCC has asked the court to put the lawsuit on hold, pending the FCC's decision on petitions to reconsider the broadcast flag mandate, although all of the petitions address unrelated matters. The coalition of organizations opposed in court the FCC's attempt to postpone the lawsuit."

Comments

Timeshifting

[kathgar1]

IANAL(I know, it's shocking! Someone on slashdot that isn't a lawyer!) but wasn't timeshifting deemed fair-use by the courts? Thus doesn't the broadcast flag impair the viewer's fair-use rights? (I didn't read the brief, I'm not a masochist.)

Re:Timeshifting

[rusty0101]

Actually, there is no "brief", it's a press release, which was pretty fairly summarized by the summary. (odd that, can't say it's been noted as happening fairly often.)

"Fair Use" is one of the things that has been identified as being adversly affected by the FCC decision.

Re:Timeshifting

[Jerf]

"Fair use" is a technical term, and "timeshifting" is not now and never has been "fair use".

The courts did rule in Sony v. Universal City Studios (1984) that use of VCRs is primarily for time-shifting, and that such use does not harm the value of the work to the copyright holder, thus the courts refused to ban VCRs. However, there has never been any ruling, implied or otherwise, that copyright holders are obligated to assist us in our fair use, or prohibited from engaging in other technological measures to prevent us from engaging in activities that might be defended as "fair use".

Slashdot in general has a very, very, very unbelievably wrong idea of what "fair use" is, to the point that it has virtually no connection with what the legal concept actually is. Fair use is a very narrow allowance to use small portions of copyright works subject to severe limitations, no more. There is no such thing as a "fair use" right in law. (Which isn't to say there shouldn't be one; I do in fact argue that something like it should be protected. But that doesn't make it magically appear in the real law we have now.) As a result, the flag can not infringe on our non-existant "fair use right".

The reason why I continue to post this point, despite continued evidence that Slashdot as a whole refuses to understand this, is that the misunderstanding is dangerous. Thinking you are protected legally means you won't do anything to protect a "right" you think is safe. It's not. Fair use doesn't do shit for you unless you fit into the narrow provisions as described in the link above, and Slashdot as a whole needs to stop thinking otherwise or we will continue to have our "fair use rights" "stripped" from us, with no coherent protest.

Re:Timeshifting

[Alsee]

(Oops, the last half of my post turned into a rant, chuckle.You are absolutely right that copyright holders are not obliged to assist fair use. Much of the rest of your post is dead wrong however.

What fair use applies what it does mean is that you are completely immune to all copyright law rules and restrictions. Someone selling you a product can certainly make make fair use inconvient, but that's all they can do. I can sell you a song etched into a solid diamond disk, that would certainly make it a challenge to snap that disk in half, but you still have every right to do so. If you make the effort to work around their obstacles and make fair use anyway then they don't have any copy rights to call on. You are immune to copyright.

When you make fair use anyway they have no right to do squat.

Fair use is a very narrow allowance to use small portions of copyright works subject to severe limitations, no more.

Completely false.

The Supreme Court in Sony v. Universal City Studios (1984) clearly held that timeshifting was not an infringment of copy rights. Timeshifting a movie blatantly involves the copying of an ENTIRE work. "Small portion" is merely one one indicaton of fair use.

It is also usually fair use for a teacher or student to make multiple copies of an entire work for classroom/educational use. It is usually fair use to copy an entire work as part of a research project. It is usually fair use to copy an entire work for virtually any personal use at all. There are numerous other examples where copying is fair use, even some cases where it is fair use to do so while selling products for profit.

There is no such thing as a "fair use" right in law.

It was acknowledged in copyright law in 1976, but it existed before that. If you check the court history of fair use you'll see that many of the limiations on copy rights were mapped out by the supreme court on 1st amendment grounds long before 1976.

The litteral text of copyright law violated the constition in a dozen ways or so. Normally when a law comes into conflict with the 1st amendment or any other part of the constituion that law is struck as null and void. Rather than striking copyright law outright the court decided to bend over backwards and "pretend" that copyright law never actually attemped to apply in that case, that the law doesn't actually attempt to restrict what it claims to restrict. They assumed that copyright law willingly and implicitly flees when faced with "fair use".

Some of those existing limitations on copyright were written into copyright law in 1976. That was merely written acknowledgement that copyright did not (and could not) even attempt to restrict those things.

It is extremely unfortunate that it was written into the law at all. Why? Because now many people MISTAKENLY think that fair use is something that copyright law grants to us. They therefore mistakenly think that fair use can be changed/reduced/eliminated at will simply by rewriting that law.

It is not copyright law that restricts fair use, is is fair use that restricts copyright. Where fair use treads, copyright vanishes. In most cases it would be unconstitutional for copyright law to even attempt to infringe into the realm of fair use.

Copyright holders don't have to assist fair use, but they have no rights at all and therefore no power at all when you proceed make fair use anyway.

Fair use doesn't do shit for you unless you fit into the narrow provisions as described

You have it backwards. It's copyright that "doesn't do shit for you unless you fit into the narrow provisions" granted. And the granted copy rights are subject to all sorts of limitations and restrictions and exceptions and have all sorts of holes in them.

P.S.
I am actually pro-copyright. Traditional copyright is a good and beneficial thing. I'm only agai

Re:Broadcast flag is no big deal

[looseBits]

As I understand it, any peice of hardware that doesn't recognize the broadcast flag will receive a down-res'ed signal. I am sure this will make for a market in line filters that you place between the source and the recorder that tells the source that the recorder supports the broadcast flag... and then come the FBI raids.

Is digital TV important enough for this flag?

[Uninvited Guest]

A little background:

The motion picture and television industries know that digital broadcast is coming. They want to be able to play their content (movies and TV shows) over these digital channels. They are afraid that persons uknown will record the content in perfect digital clarity, and redistribute it overseas, for free or for profit. Overseas syndication is a big profit center for these guys; they don't want to give it up without a fight.

If the broadcast flag fails, these industries just won't introduce content to digital broadcast. Movies will be available strictly by satellite or by digital cable (which already have protection built in). Original broadcast televions shows (which already have something like a 1 in 20 success rate) will just never appear on broadcast digital TV. In fact, broadcast digital TV might completely fail as a widespread technology (like AM stereo) for lack of content and because of low consumer adoption.

The FCC sees its jobs as making that kind of widespread adoption possible, easy, and necessary. That's why the FCC adopted the broadcast flag. They think it's the only way that enough content will come to broadcast digital for the medium to have any chance of success.

What we are left to ponder is this: Is broadcast digital televison so important that we are willing to accept these kind of use restrictions from the industry? Whatever you decide, be sure to let the FCC know.

Re:Is digital TV important enough for this flag?

[Alsee]

The broadcast industry is already having trouble making money.

Really? Not many years ago there a whopping SEVEN channels worth of programming (and that's counting the Public Broadcasting channel). That pretty much amounted to the entirety of nation-wide US programming. Maybe one channel of that was semi-regional.

Now I am personally supplied with over 270 channels, and that doesn't even touch on the chennels I don't happen to get from all of the satellite networks and the huge increase in regional programming.

If there is any difficulty getting money to produce more expensive programming the sole reason is because the staggering EXPLOSION in the amount of programming being produced. There is a huge amount of money for creating programming, there's just a lot of competition to divide the pie. Guess what? That's ordinary capitalism.

No matter how much total money is available for programming, each program will always get stuck with about the same budget. Increase the total available money to increase each budget and people will enter the business and splitting the pie more ways drives the budgets back down. Lower the total available money to lower each budget and people will quit the business and splitting the pie less ways drives the budgets back up

If someone claims they will stop broadcasting their programming without a broadcast flag then I say fine, call their bluff. They broadcast stuff because they make money broadcasting stuff. There are several hundred channels worth of programming, if someone wants to quit the business then everyone else in the business will quite happy with a few less competitors and that much larger market share.

The broadcast flag plan is just plain stupid. There's nothing wrong with the flag itself, it's just a zero or one sent along with the (free and public) broadcast signal. The absurdity is the accompaning need to enforce that everyone can only have CRIPPLED TV's and other crippled hardware. The TV signal is free and in the clear, but they want a rule that all TV receivers must then encrypt that signal. It then enforces that all hardware like VCR's must be crippled and enforce all sorts of restrictions that copyright holders have absolutely NO RIGHT to under copyright law. Crippled hardware that will forcibly delete somthing you recorded after just 90 minutes, even though under copyright law you have every right to keep it as long as you like or make copies of it for a number of uses.

My TV and my TV are MY PROPERTY. I have every right to open them up and rewire it to a home-made 1200 inch disply, and I have every right to rewire my recorder to play a recording backwards looking for satanic messages if I like. A functional broadcast-flag system would require revoking my rights over MY OWN PROPERTY. It would require IMPRISONING ME for making such modifications.

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Re:How would this affect *me*?

[rusty0101]

Ok, an attempt at making this "simple" probably isn't really going to work, but here goes anyway.

In most cases, what a HDTV receiver receives is a digital signal in the form of something like am Mpeg2 stream, however handling the 1040i, or 740p signal as a bit stream. This bit stream is not a bit/byte(64bitword)per pixle representation, it is a compressed, and in some cases encrypted bit stream.

An HDTV receiver will first decode the bitstream (if necessary), then check to see if the "block" bit is set. If it is, it will turn off any 1394 interfaces, to prevent you from capturing the raw HDTV stream to a PVR, or any other device capable of recording the HDTV stream.

After that happens, the stream will be sent to the Mpeg decoder, (either software or hardware, most often hardware) which will send the decompressed output to the component video splitter, which breaks out the component video to the three leads going to your HDTV display. That signal is an analog signal, not a digital signal.

At the moment I am not aware of any devices that will take that analog signal at 1080i, or 740p, as well as the 5.1, or 7.1 audio, and re-converting it into a mpeg2 stream that can be used to feed another hdtv receiver. Note that I am not saying it is impossible, or even difficult. I am saying _I_ am not aware of any consumer equipment capable of doing that.

People are welcome to followup with better information, should they have it, or flames if they don't feel they are up to the challenge.

-Rusty

Re:Ya see!

[GrumpyOldMan]

In some sense its nice that they are still fighting about technology. Time Warner has no idea that my new Zenith C32V37 with built-in HD tuners can decode Time Warner's digital cable signal, including the neighbors' on-demand HBO and Showtime. All for the price of basic cable.

I'm sure they'll have all this sorted out by the time you get your set. Meanwhile, I'll enjoy the free ride while it lasts.

Re:Broadcast flag is no big deal

[Alsee]

I guess you've never heard of Anton Pillar orders.

Someone goes to a judge and says he's a copyright holder and he aledges that you are infringing his copyright and that you have infringing materials in your house. He then generally says that there is a danger that you will destroy that evidence if it is not obtained immediately. The judge then grants an Anton Pillar order and the copyright holder's hired-thugs pound on your door and search your house and seize your property. A copyright holder may go from filing an allegation in court to seizing your property in matter of hours (time is critical because you might destroy the evidence, remember?). The first you hear of it is when the rent-a-thugs pound on your door with the order.

They aren't cops and it's not a "warrant", but it is an "order". You pull out a shotgun and you'll probably wind up in prison.

As far as I know the US doesn't have them yet, but the copyright industry is pushing hard to get the most absurd laws from each country passed in every country. They generally use Free-Trade agreements to force legislators into passing the laws they want. Usually it's exporting the DMCA to the rest of the world, but they are getting Anton Pillar-type language slippled into treaties to import it to the US. Take a look at the US-Australia treaty that's been nearly finalized.

The existing TRIPS treaty looks like it just about requires Anton Pillar orders already. It requires courts to have the power to issue inaudita altera parte orders - meaning copyright holders can have a court issue orders against you without you being in court to respond, or even informing you that they are going to court against you. Requirements for evidence to be expeditiously turned over and preserved (seized) to prevent destruction. And rather amusingly Article 47 revokes your right to remain silent. Note that when I say it "amusingly" revokes your right to remain silent I mean a perverse and sickening sort of "amusement".

Someone shoulg go check the vault in the National Achives building. I think our Constituion just spontaneously combusted.

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