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."

Comments

What are the odds?

[njfuzzy]

What I want to know, is what are the odds of defeating the bill? It is great to see people and respected institutions standing up and saying this is wrong, a betrayal of our rights-- but can they make a difference?

Re:What are the odds?

[JackL]

I think the point of the EFF's action is that they are not fighting a bill, but rather an FCC mandate. From one of the linked articles:

Thanks to an FCC ruling, as of July 2005, it will be illegal to manufacture or import DTV tuners unless they include DRM technologies mandated by the FCC.

The FCC only has power to regulate transmissions. They can require broadcasters to transmit a broadcast flag but they cannot require television makers to pay any attention to it. That would require a bill to be voted into law by congress.

I hope this is overturned, but

[revery]

I find it highly unlikely that it will be. The Federal Government has been usurping more and more power over the past 100 years (Dems and Repubs) in ways that clearly go against the intent of the Constitution.

Consider if you will this Supreme Court case:

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.

So, in this case, even though the television sets are not engaging in interstate communication, they are receiving a signal that very likely is, and therefore, the government's resposibility to regulate cannot end at reception... or some other similar crap.

Now I'm depressed...

--

Was it the sheep climbing onto the altar, or the cattle lowing to be slain,
or the Son of God hanging dead and bloodied on a cross that told me this was a world condemned, but loved and bought with blood.

Re:I hope this is overturned, but

[4of12]

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.

That's an ugly travesty of a precedent, deserving to be overturned.

Next thing you know, bands won't be able to do cover songs because the audience might otherwise have purchased recorded music of said songs that were part of interstate commerce.

You can tell that even in the 1940's, people were willing to come up with contorted reasoning to justify a commercial policy based on entirely different premises.

It looks to me as if the EFF has a nice technicality based case.

But it could be "fixed" by legislation mandating the expansion of the FCC's regulatory powers into any electronic device dealing with encryption, probably under some omnibus Patriot Terrorism/Hacker-Prevention Pedophile Spammer Slammer Act. Such legislation would sail through Congress.

Bigger question:

[untaken_name]

Why does the FCC have any jurisdiction over speech in the first place? "Congress shall make no law...abridging the freedom of speech..."
Apparently, however, it's okay for Congress to make an agency to do it...
Of course, we accept it as though it's the most natural thing in the world for someone else to be responsible for our speech.
Now, I realize that the FCC does more than censor free speech. However, a lot of what they do is not un-Constitutional. Did they simply regulate access to the airwaves (not based on content of speech), I wouldn't have a problem with them. I do, however, have a large problem with some bureaucrat passing judgement on my words.
Note: I am not opposed to censorship, only government-backed censorship. Network owners should be free to censor whatever they wish. I should be able to censor my own publications. However, the government has no right to do so.