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EFF Goes To Court To Fight The Broadcast Flag
Silwenae writes "The Electronic Frontier Foundation and nine other organizations including Public Knowledge (PK) and the American Library Association (ALA) have gone to court to fight the Broadcast Flag. The press release sums it up: The brief argues that the FCC has no authority to regulate digital TV sets and other digital devices unless specifically instructed to do so by Congress. While the FCC does have jurisdiction over TV transmissions, transmissions are not at issue here. The broadcast flag limits the way digital material can be used after the broadcast has already been received."
The British still have TV detector vans.
The FCC is also mandating that receivers made after a certain date honor the broadcast flag. It's not good regardless of the semantics.
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but all it takes is a nice little Time Base Corrector to strip the digital crap out to clean up the signal
;)
This is for digital television broadcasts. If you strip the digital information out you'll be left with a blank screen.
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By broadcast, you mean transmit. But read the back of almost any device with the FCC logo you speak of. It seems they have authority over both transmitting and receiving.
This device complies with part 15 of the FCC Rules. Operation is subject to the following two conditions: (1) This device may not cause harmful interference, and (2) this device must accept any interference received, including interference that may cause undesired operation.
The MPAA. If you want a CSS license to sell DVD players, you have to include Macrovision and region locking, etc.
Hitachi can put whatever "features" they want in their TVs, the EFF is saying the government can't mandate what goes in and doesn't.
Ie; V-Chip is optional, TV and Movie ratings are all completely voluntary, there are no US laws that have to do with PG-13.
I don't need no instructions to know how to rock!!!!
For a number of years, this ruling was used to justify federal regulation of just about anything. In more recent times, however, courts have somewhat limited this authority. The gun free schools act was overturned in 1995 when the supreme court ruled that the government had overstepped it's authority regarding interstate commerce regulation. Although courts have traditionally sided with the federal government in issues of regulatory authority, there have been exceptions, so it's hard to say what will happen in this case.
Well, the FCC clearly does have some authority over end-user devices: notice the FCC logo on the back of every monitor/TV in the US?
That's completely different. That ensures one device is not preventing another device from receiving a transmission. Basically, it ensures one device does not interfere with another. Which means, such restrictions exactly fit with the FCC's charter.
The broadcast flag has nothing to do with it's charter. Never has, and never will, save only by changes in law by Congress. Which is exactly the point.
Follow the link to the legal documents. They are dated "October 14, 2004"!
The Court's 1942 decision in Wickard vs. Filburn gave Congress the power to regulate anything. In that case, the Court remarkably held that the interstate commerce clause could be used to regulate an individual farmer's wheat production or his family's consumption. The reasoning was that since the farmer grew his own wheat, he affected interstate commerce; otherwise, he might have purchased wheat that had moved in interstate commerce.
Much has been written about the interstate commerce decision/clause. Here's an excerpt:
Beginning with the Hepburn Act (1906), the ICC's jurisdiction was gradually extended beyond railroads to all common carriers except airplanes by 1940. Its enforcement powers to set rates were also progressively extended, through statute and broadened Supreme Court interpretations of the commerce clause of the Constitution, as were its investigative powers for determining fair rates of return on which to base rates. In addition, the ICC was given the task of consolidating railroad systems and managing labor disputes in interstate transport. In the 1950s and 60s the ICC enforced U.S. Supreme Court rulings that required the desegregation of passenger terminal facilities.
The ICC's safety functions were transferred to the Dept. of Transportation when that department was created in 1966; the ICC retained its rate-making and regulatory functions. However, in consonance with the deregulatory movement, the ICC's powers over rates and routes in rails and trucking were curtailed in 1980 by the Staggers Rail Act and Motor Carriers Act. Most ICC control over interstate trucking was abandoned in 1994, and the agency was terminated at the end of 1995. Many of its remaining functions were transferred to the new National Surface Transportation Board.
Suffice it to say that the ICC has been oft-abused in a search/grab for power, and many activities we take for granted in our daily lives are now subject to continuing jurisdiction of the government under the ICC. Do you check email? That email crossed state lines and someone paid for connectivity at both ends... thus the software, keyboard, mouse and monitor you use with your computer are theoretically subject to ICC regulation. Want to use Linux instead of Windows? Want to install SP2 on your Windows box? Maybe Congress will decide that it needs to regulate software distribution and require you to register your use of any updates with them...
The ICC is a big, dangerous thing in the hands of often overzealous public officials...
If I can hear or watch it, I can record it. So what if its not digital? Other than instant fast forwarding, I'm not really impressed with DVDs over VHS. If it gets ridiculous, people will just sample off movie screens or TVs, the Gubmint won't be able to stop that. All you've done is created newer, more interesting types of piracy.
I want to delete my account but Slashdot doesn't allow it.
You misunderstand the reasoning for the wording.
Let's look at the 2 parts in the context of your TV.
This device may not cause harmful interference
This says that your TV cannot interfer with anything else - if it does and somebody complains, you have to turn your TV off. No if, ands, or buts. So if your TV is throwing out a spurious emission at 146.52 MHz and thereby is interfering with my ability to talk on my 2 meter radio, upon my informing you of the interference you have to turn your TV off until you get it fixed. If you cannot get it fixed, you cannot use it. Equally, if your TV is interfering with MY TV, and I so inform you, the same thing happens.
OK, now let's look at the second part:
this device must accept any interference received, including interference that may cause undesired operation.
Why is this here? OK, let's look at a scenario. Your TV has a badly designed front-end, and is interfered with by my transmissions on 146.52 MHz. You complain to me. I check my equipment, and determine that I am not generating any spurious emissions outside of the 2 meter amateur band. Your TV is at fault here, in that it is not correctly rejecting my signal.
You can *ask* me to stop transmitting. You cannot *order* me to stop transmitting, even though I am interfering with you - my part 97 amateur gear, operating properly in band, trumps your part 15 TV. (in reality, I am going to do everyting I can to help you resolve the problem, but I am not under any legal obligation to do so).
In short, the second part is to clarify where part 15 stands on the totem pole - at the very bottom.
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From the FCC's V-chip page:
Of course, it's up to you whether you want to use the V-chip that the gov't forces you to buy.
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DAT has the same kind of no-copy flag, and I think there were devices produced that would strip this flag from the digital stream.
Yes, you or I might be able to build such a device (though with a heavily encrrypted data stream enfolding the flag, it's going to be quite a task!). But why should there be a "technical elite" that have the rights we are supposed to have? Why should we settle for that?
Fighting for rights has always been about fighting for the rights of people at large, not just yourself.
Personally, I think that the no-copy flag is going to raise such a stink in the populace at large that I'm not sure it's going to fly anyway in mass production. But why not cut the problem off as close to the source as possible, is my motto.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
Fritz Hollings
There's a Mercedes gap too. I want one and can't afford one, but it's not government's job to do anything about it.
Because the electromagnetic spectrum is a PUBLIC resource... like a park.
Because he who has the "biggest wattage transmitter" can literally take control of a slice of the spectrum - the public resource - and he drowns out anyone else and thereby can restrict what goes out on that slice of the spectrum since no one can shout over him... akin to someone marching in and taking over a public park and allowing only what he wants to happen occur on the park - in other words, he's converted a public resource to his own private use ... just because he's the "biggest."
Because free speech in a public area is important for everyone - not just those with the "loudest voice" - the government takes control of the public resource that is the Electromagnetic spectrum... to ensure that EVERYONE gets a shot at being heard. They're actually protecting your rights by regulating who can say what when, because it gives you a chance to "get a word in edgewise." Remember, the spectrum can only be divided up into so many non-interfering channels; it is a scarce resource, so you can't just ask someone to move to another part of the spectrum over and over - just like the number of parks in your city, when N people each take over one park, and N = the number of parks in the city, there are no more public parks.
Now, the government may LICENSE a certain portion of the spectrum to an entity, but it's basically giving someone a monopoly on a public resource. In that case, the government (on behalf of the people) is basically saying, "we think the speech you are presenting has extra merit, and so for now we'll give you exclusive control of a portion of our public resource. If ever we the people decide what you are presenting does NOT have extra merit, we reserve the right to return the spectrum to the public (i.e., rip your broadcasting license), so don't abuse what you've been given." Like it or not, a lot of people decided that presenting Janet Jackson's breast did not have extra merit, and in effect were saying, "you no longer have extra merit, give us our park/spectrum back."
Broadcast TV is to the public as a tenant is to a landlord... if ever the tenant gets too annoying, the landlord is fully within his rights to kick the tenant out. Broadcast TV lives in the public-owned spectrum at the pleasure and whim of the public. When broadcast TV loses the pleasure and whim of the public, they can and should be kicked out of the public-owned spectrum.
Incidentally, that's also why cable and satellite providers are "off the hook" in terms of the FCC regulating their content - they're not using the public spectrum, so they're not bound to the same rules of behavior as a tenant in the same way that a homeonwer doesn't have to worry about what a landlord thinks of him - he owns the joint! Cable and satellite aren't using public resources, so they're not bound to the public's whim.
--AC
I think you are mistaken, have a look at the list of EFF victories for reference.
The FCC does have the authority to regulate all transmitter and receiver hardware. That has always been within their purview.
But do they have any authority over what happens to signals after they have ceased to be freely radiating RF?
They have the right to regulate digital hardware, too, as every computer you buy has been certified by the FCC not to cause harmful interference.
That is only the function of the computer as a radio transmitter. It has nothing to do with the function of the hardware as digital computer.
The Federal Government has been usurping more and more power over the past 100 years...The Court's 1942 decision in Wickard vs. Filburn gave Congress the power to regulate anything...
You'll be pleased to know that this exact point is going before the court again this year. The Supreme Court will consider whether Congress can ban medical marijuana in California even if it never leaves the state.
The WWII wheat-quotas-are-OK case (Wickard v Filburn, 1942) is looking pretty weak after the can't-prohibit-guns-near-schools case (US v Lopez, 1995). I can hardly imagine that the Court will force a broad role-back of Congressional authority, but we'll know in a few months or so.
"We reject as false the choice between our safety and our ideals." --The American President (20.1.2009)
Europe and the US has a history of never using each other standards. Just look at PAL/NTSC, NMT/APMS, GSM/DAMPS, Metric/Imperial, 110V60Hz/230V50Hz.
It isn't quite that simple, PAL is a derivative of NTSC. The French then came up with SECAM. The USA actually signed the Treaty of the Metre (pre Noah Webster) yet has never implimented it, the system actually used in the US is called "English" which is not the same as the Imperial system of measurements.
But do they have any authority over what happens to signals after they have ceased to be freely radiating RF?
Doesn't matter at all. because the FCC DOES have the right to say "you shall make all receiving devices compatible with this (broadcast flag) device..."
This ain't new, and I'm surprised the EFF thinks it has even a slim chance with such a play. Apparently no one at the EFF has read their history books:
The problem was that UHF stations would not be successful unless people had UHF tuners, and people would not voluntarily pay for UHF tuners unless there were UHF broadcasters. Of the 165 UHF stations that went on the air between 1952 and 1959, 55% went off the air. Of the UHF stations on the air, 75% were losing money. UHF's problems were the following:(1) technical inequality of UHF stations as compared with VHF stations; (2) intermixture of UHF and VHF stations in the same market and the millions of VHF only receivers; (3) the lack of confidence in the capabilities of and the need for UHF television. Suggestions of de-intermixture (making some cities VHF only and other cities UHF only) were not adopted, because most existing sets did not have UHF capability. Ultimately the FCC required all TV sets to have UHF tuners. However over four decades later, UHF is still considered inferior to VHF, despite cable television, and ratings on VHF channels are generally higher than on UHF channels.
The allocation between VHF and UHF in the 1950s, and the lack of UHF tuners is entirely analogous to the dilemma facing digital television of high definition television fifty years later.
Even fifty years ago the FCC had the power to (and did) regulate receiving devices. They mandated all sets sold with something larger than (I believe) a 13" screen MUST have both VHF an UHF tuners... and it stood, and it worked... just as this latest move will.
"The right way to fight this is to fight it on grounds that the FCC doesn't have the authority to alter the fundamental nature copyright law through their rulemaking"
I'm very glad you got mod points for this, as it seems both accurate and informative, but it raised another question in my mind.
A while back, there was a legal decision usually referred to as the "Thor Power Tool" case, that involved the IRS and company accounting/amortization methods. The case had a huge impact on the publishing industry, and is effectively the reason why now, even a popular author such as Tom Clancy or Steven King has works that cycle in and out of print instead of being reprinted constantly in anticipation of eventual demand.
For those people who have considered copying an out of print work and claiming that the fact it is long out of print means there's no economic loss, 'Thor Power Tool' is ultimately the root law that negates that defense, as 'long out of print' is no longer something the court dares consider or define more precisely, unless they want to risk screwing up tax law over a copyright case. Note that author's associations and such have frequently claimed 'Thor Power Tool' hurts the authors and publishers, and in particular new authors just starting out, and not just those persons wanting to distribute out of print works.
I'm wondering if it could be argued on the same basis as you mention, that the IRS doesn't have the authority to make 'Thor Power Tool' apply to the publishing industry, because it has more than its intended effects, limited to tax law, and instead, also alters the nature of copyright law (if it makes it harder for new authors to get started, it's doing the opposite of "promoting progress in the useful arts", as the U.S. Constitution says).
It looks like it might actually be in the publishing industry's favor to recognize a right to copy works long lapsed from print, if in return they would regain the right to make 'out of print' mean what it originally meant to them financially.
(The necessity for my signature is shown by the fact that I am actually discussing the possibilty that the courts decide an issue by reference to the constitution, rather than just precedent. It'll happen right after Monkees fly out of Rhenquist's butt.).
Who is John Cabal?
Congress had passed enabling legislation in the form of the All-Channel Receiver Act of 1962.
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Not only are all Part 97 devices licensed (Part 97 is the Amateur Radio Service regulations), but they have first class privledges on many of the bands they operate on. If there is a broadcaster anywhere near the frequency of a ham station (except on secondary bands like 40 meters), it is the broadcaster who will be shut down and fined.
Yup, dems da rules sweetheart. :-)
You step up and take the Amatuer Radio Exam and when you pass you are a LICENSED operator and any transmissions you make from Part 97 gear DEFINETLY trump any intereference to your Part 15 device.
Now the Commercial entities are a differenent animal and I'm not at all sure how the rules apply to them. Still, I would have to say that if their licensed equipment is operating within regulations and design specs any intererference to your Part 15 devices is YOUR problem, not theirs.
In practice MOST Amatuer Radio operators will go tremendously far out of their way to assist a non "Ham" in resolving any interference issues. We are supposed to be amabassadors of good will afterall!
I myself have "upgraded" many a poorly built or designed piece of home electronics gear so that it will reject my Amatuer Radio signals, and done so for free.
In the end though I don't HAVE to do it, I do it as a courtesy and to help maintain neighborly relations.