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?

[MikeMacK]

I'd say they are pretty high. The FCC is clearly out of it's mandate here and I would say the odds of defeating it are good, not on the merits of violation of consumers rights, but that the FCC doesn't have the authority for Congress to do this.

Re:What are the odds?

[InfoVore]

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?

If people try, maybe.
If people don't try, never.

I.V.

Re:What are the odds?

[jxs2151]

Win or not, we must continue to fight tyranny even in mild forms. The power of government must be constrained on a constant, consistent basis in order for freedom to flourish.

The FCC is obviously outside of its mandate and that fact will be communicated just by the very fact act of taking to the courts.

...but can they make a difference?

Be not afraid.

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.

Re:What are the odds?

[dgatwood]

The odds are very low. The FCC does have the authority to regulate all transmitter and receiver hardware. That has always been within their purview. 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.

Sorry, but the EFF is likely to lose if they are fighting it on "digital hardware" jurisdictional grounds. 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, not that they don't have the right to regulate the design of receivers. The consumer rights issue is the only issue that may be outside the FCC's rights.

Re:What are the odds?

[corngrower]

I'ld agree with you. Based on what's indicated in the article, I think the court will rule that the FCC has overstepped its authority. On the other hand, I wouldn't rule out congress passing a measure that would 'restore' this authority when it gets overruled. Especially if it's a Republican congress.

Re:What are the odds?

[Greger47]

What are the odds that Congress will happily enact the necessary law to mandate the broadcast flag if it turns out that the FCC ain't allowed to put it in its regulations?

/greger

Re:What are the odds?

[Wizzo1138]

But isn't the reason that they regulate devices that can cause interference is that they are themselves transmitters?
I don't actually know if they have any authority over receiver hardware or not, but it might only be that most receiver hardware is capable of transmitting in some form (if only via interference.)

Re:What are the odds?

[dnoyeb]

What? The EFF is not fighting on any "digital hardware" grounds.

The FCC has the authority to regulate transmitters and receivers. Not any accompanying hardware, except with respect to interference. I agree with the EFF that this mandate is outside of the authority of the FCC.

I don't understand why you think the EFF is not doing what you claim they should be doing!?

Re:What are the odds?

[v_1matst]

"every computer you buy has been certified by the FCC not to cause harmful interference."

right... and that's all. They have to approve the device to not interfere with other transmissions that they govern.

This is an apples and oranges comparision to what the EFF is trying to limit.

Re:What are the odds?

[value_added]

MikeMacK writes "I'd say they are pretty high."

dgatwood writes "The odds are very low."

Somebody please make up my mind for me.

Re:What are the odds?

[memfrob]

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.

Sounds like regulating transmissions to me. Now, when the FCC tells me that my HDD can only boot an FCC approved OS image, or can only store files that have been signed by a corporate entity, then they get the FINGER.

Re:What are the odds?

[hackstraw]

The FCC is clearly out of it's mandate here and I would say the odds of defeating it are good, not on the merits of violation of consumers rights, but that the FCC doesn't have the authority for Congress to do this.

Think again. From their about us page they say, "The Federal Communications Commission (FCC) is an independent United States government agency, directly responsible to Congress.">

Parallel that with the CIA, "The CIA is an independent agency, responsible to the President through the DCI, and accountable to the American people through the intelligence oversight committees of the U.S. Congress."

I'm growing skeptical of these "independant agencies". They are not elected, they are not part of the "checks and balances" system, there is no meantion of them in the Constitution, yet they appear to be having greater power than any real part of our government.

I mean the CIA still has publically downloadable 23page document from 2002 about "Iraq's weapons of mass destruction" here, yet its pretty much common knowledge that they never existed. The document even has a map on page 9 that has 9, yes, 9 "Declared nuclear facilities".

Re:What are the odds?

[J.R. Random]

I don't think the Republican/Democrat divide has much to do with this. Democrats depend very much upon Hollywood money (more than the Republicans do) and so are quite inclined to do the bidding of their corporate masters on this issue.

Re:What are the odds?

[mpe]

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.

Re:What are the odds?

[mpe]

"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?"

It certainly won't make a difference if they don't. The thing to remember that there are chaotic factors at work. It might be the first person to "sit at the front of the bus" or it might be the thousanth.

Re:What are the odds?

[poptones]

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?

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.

Re:What are the odds?

[Artifakt]

"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.).

Re:What are the odds?

[Detritus]

Congress had passed enabling legislation in the form of the All-Channel Receiver Act of 1962.

Re:What are the odds?

[phearlez]

Would you please concentrate on preparing for friday's debate, Senator Kerry?

Actions speak louder than words.

[Doc Ruby]

"The broadcast flag limits the way digital material can be used after the broadcast has already been received."

Does it? Or does the flag just say that the sender set the broadcast flag? The receiver limits the use of the data, or not.

Re:Actions speak louder than words.

[Lehk228]

that is the point made in the lawsuit, and mandating that hardware acknowledge and respect the flag after reception goes outside the scope of the FCC's authority.

Re:Actions speak louder than words.

[Rude Turnip]

The FCC is also mandating that receivers made after a certain date honor the broadcast flag. It's not good regardless of the semantics.

Re:Actions speak louder than words.

['nother poster]

Yes, but the issue is whether the FCC can mandate the honoring of the broadcast flag in the digital TVs and recorders, I believe.

fp?

[Ralph Spoilsport]

woo hoo.

at least top ten....

Once again - this "flag" will be a problem for the Common Ordinary copy maker, but all it takes is a nice little Time Base Corrector to strip the digital crap out to clean up the signal, and then route that signal into your recorder of choice. Done.

RS

Re:fp?

[onion2k]

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. ;)

Re:fp?

[Eccles]

If you strip the digital information out you'll be left with a blank screen. ;)

For most shows, that would be an improvement...

The stupid thing is...

[Pig Hogger]

... the US is painting itself in a corner with the broadcast flag.

They will not be able to export their technology as other countries are protecting the right of their citizens to make private copies.

Expect the EU to adopt another HDTV standard.

Re:The stupid thing is...

[Jeff DeMaagd]

Expect the EU to adopt another HDTV standard.

They have. They've chosen their own modulation and encoding standard. They are NOT the same as the US ATSC HD broadcasting standard.

Now, the EU can still be cowed into implementing the same thing, much like the software patent vote was manipulated.

Re:The stupid thing is...

[sicking]

Who says that that's not something that they want? 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.

And these are just the ones I can think of off the top of my head. There's defenetly plenty more (I think pulsediling were different before we got tonediling). Then there's 802.11 and bluetooth, both has had difficulty getting over the pond (in different directions), though it seems like finally they are.

Both parties have been equally bad. It's just as often Europe reinventing some existing american weel we the other way around.

The loosers, as always, are the customers.

Re:The stupid thing is...

[mpe]

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.

Time to donate!!!

[SuperKendall]

I dontate to the EFF every year about this time, and you shoudl too! Is this not exactly the kind of issue that is near and dear to most every Slashdot reader?

So dontate whatever you can! Is some small portion of your salary too much to fight for digital rights?

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

[gcaseye6677]

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.

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.

Re:I hope this is overturned, but

[mreed911]

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...

Re:I hope this is overturned, but

[PMuse]

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.

Pardon my pessimism

[Anonymous Coward]

>>unless specifically instructed to do so by Congress

So the MPAA will just send a few more "donations" to congress and suddenly a new law magically appears extending the FCC's powers.

Re:Pardon my pessimism

[hyphz]

You know, I can't help be amused by the fact that one of the Slashdot autolinks from this story is:

'Best Deals: The Courts"

So if you need to go shopping for a judge..

Re:Pardon my pessimism

[Jaywalk]

So the MPAA will just send a few more "donations" to congress and suddenly a new law magically appears extending the FCC's powers.

Maybe, but that's no reason to make their lives easier. The real value of the suit is in raising the issue outside of the geek community. When have you last heard of "broadcast flag" outside of Slashdot? The average American doesn't even know that his rights are being curtailed. The MPAA et al would rather slip this new regulation in below the radar rather than expose it to public view by having to push it through Congress

Re:Pardon my pessimism

[IndependentVik]

Putting this in front of the court will let the average American know that his rights are being curtailed? Maybe it's just me, but I don't see the average American following the Supreme Court closely, not unless the TV press gives it big coverage. And since the TV press is owned by the media corporations, well, I think you see where this is going. Unless people start watching PBS or begin reading a free-thinking newspaper, nobody's going to care.

tricky.

[gclef]

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? There's a reason it's there. Now, their authority (to my understanding, feel free to correct me if I'm full of it) is limited to controlling what the devices *broadcast*, not how they recieve things, but still...if the entire argument hinges on the FCC not being able to regulate TV sets at all (which the press release implies), then they're wrong. If they can make the subtle distinction that the FCC can only regulate what the TV/card *emits*, then they have a hope.

Re:tricky.

[thedillybar]

>Now, their authority (to my understanding, feel free to correct me if I'm full of it) is limited to controlling what the devices *broadcast*, not how they recieve things, but still.

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.

Re:tricky.

[GooberToo]

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.

Re:tricky.

[thedillybar]

>What the hell does it mean?

I believe this is the FCC's classification of a particular device. They're saying, however you use this thing, it can't cause harmful interference (i.e. you don't have a right to use this device in such a way that will cause harmful interference). They're also saying that you have to deal with whatever interference it receives (i.e. don't complain to the FCC if something is interfering with it).

>"may" not? is it optional? Harmful to who or what?

Required. Anyone that complains to the FCC.

>"accept" in what sense. If it does "cause undesired operation", then surely that means it didn't "accept" it? What wound not accepting interference actually involve?

"Accept" in the sense that you have to deal with it. Even if it doesn't work at all, it's your problem not the FCC's.

How long will it take...

[jmcmunn]

How long will it take for someone to figure out how to strip this flag out using a piece of software on a PC (or hardware or firmware mod on a standalone unit) and then be able to record it without caring if this flag is set?

I'd bet within days, the first option, and maybe weeks or months on the second. This is not going to help anyone in the long run, same as Macrovision doesn't help anymore when it comes right down to it.

Re:How long will it take...

[Muerte2]

The problem isn't that this flag will actually stop people from recording/retransmitting/converting any signal. The problems is that it makes it ILLEGAL to do so.

It's very similar to watching a DVD on Linux. It takes about 5 seconds to install a piece of software to play a DVD on Linux, but everytime you do that you're breaking the law. It's not that it's IMPOSSIBLE to watch a DVD, it's that it's ILLEGAL to watch a DVD on Linux.

Now illegal in this sense doesn't mean the cops are going to break down your door, it just means that's you have to make a decision to skirt that part of the law.

So it's more important that we be ALLOWED (under the law) to watch that DVD, or that HDTV signal however we want.

Especially since that signal is coming in to my house/business over public airways. If it's coming in to my house, and I have no (reasonable) recourse with which to stop it, I should be able to do whatever I want with the signal once it gets there. But that's another argument.

It's all about rights, not capabilities.

Delaying the inevitable?

[kawika]

They probably will get a court to agree and stop the FCC. Temporarily. Does anyone find it curious that Congress hasn't been yelling about the FCC overstepping their bounds? Well, that's because if the FCC is prevented from enforcing the broadcast flag due to lack of authority, most likely the Disney-aligned Congress will give them that authority. It's for our own good, you know, because without those protections the content providers will never let their precious content be broacast in HD and we'll all be looking at blank screens.

Re:Delaying the inevitable?

[sjames]

It's for our own good, you know, because without those protections the content providers will never let their precious content be broacast in HD and we'll all be looking at blank screens.

Of course, the screens wouldn't be blank for long. Talk about a goldmine for an upstart content producer. The highest resolution out there, populated exclusively by people with disposable income to spare, and all the big fish voluntarily removing themselves from contention. Surely, someone can figure out a way to make money when the red carpet is rolled out like that.

Naturally, Disney and friends would prefer to poison the well and salt the fields.

It does when...

[SuperKendall]

When the FCC mandates by law that every receiver must comply, then yes it DOES rather limit things!

Without FCC certification how are you going to sell a receiver?

And of course building anything that does not honr the flag is disallowed by the DMCA. It's basically a form of prohibition all over again.

Re:It does when...

[kleinux]

Without FCC certification how are you going to sell a receiver?

...off the back of a truck in Chinatown.

Re:It does when...

[Waffle Iron]

And of course building anything that does not honr the flag is disallowed by the DMCA. It's basically a form of prohibition all over again.

One question would be how hard would it be to filter the flag with a generic piece of hardware? Say somebody produces a little dongle with a small FPGA in it for generically filtering serial data streams. It would have substantial non-infringing uses, because you might be able to use it to encrypt SATA drive traffic, for example. However, you might also be able to download a configuration from a foreign server that parses digitial TV streams and zeroes out the broadcast flag.

FCC NEEDS this

[grunt107]

For a government group that is losing its relevancy (airwave TV and radio are being trounced by cable/internet/sat. radio), they need to try and branch out into areas seemingly not of their control.

Re:FCC NEEDS this

[trentblase]

This is hardly insightful. Satellite radio? FCC controlled. Internet? WIFI/Fixed Wireless/Bluetooth/Allsortsofgoodies FCC Controlled. If anything we as a society are moving towards MORE dependence on very tightly regulated radio spectrum. Just ask anyone with a cellphone.

Re:FCC NEEDS this

[Svartalf]

Excuse me? If a government group is losing it's relevancy, then the group should be DISBANDED , not branched out into new areas.

Stupid Argument

[Anonymous Coward]

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.


OK, so if they win this round look for Congress to specifically instruct the FCC to do so.

It is as if they don't see that coming...

Re:Stupid Argument

[thisissilly]

Good. Then we get another chance to fight it, and delay while HD-VCRs/Tivos/etc make it into the hands of the "consumers", who will yell and scream if Congress tries to "take away my VCR!".

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.

Re:Bigger question:

[Peyna]

The basis for allowing the FCC such power is that it is broadcast communications; and therefore since it is bouncing off the head of every one in the country, they should be able to control the content of the communication.

It's not necessarily akin to standing inside someone's home yelling obscenities in their ear, where they have no choice but to listen to you; but there is plenty of room for argument in cases of broadcast communications as opposed to subscription based ones.

The FCC has very limited power over subscription based communications. (Anyone else notice Comedy Central started airing completely uncensored movies late at night?)

Re:Bigger question:

[Anonymous Coward]

Why? Where do they get the right to tell Americans what they can and can't broadcast?

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

Re:Macrovision

[stratjakt]

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.

Please don't fight it

[lightspawn]

The broadcast flag is my only chance to gather up the resolve to stop watching TV. Cold turkey. Please don't take that away.

Setting Legal Precedent for Howard Stern and Ilk

[reporter]

I applaud the EFF for fighting the FCC. If the EFF can establish that the FCC only has powers specifically prescribed by Congress (as opposed to having any power unless it is specifically circumscribed by Congress), then the EFF will establish an awesome legal precedent that will pave the way for folks like Howard Stern in the digial era. He and others like him need not fear the FCC again -- at least in the domain of digital communication.

Remember that Stern, himself, paved the way for Bill O'Reilly. Before Stern, people like Bill O'Reilly really could not say "outrageous" things like "let's use the national guard to defend the borders from illegal aliens." Stern pushed the limit of being outrageous, and O'Reilly lives within that limit.

The point is not that O'Reilly's comments are outrageous. They are not. Rather, some people who hate O'Reilly are bigots and accuse him of being outrageous. In the past, these bigots would use the "outrageous" label to convince the FCC to shut O'Reilly down. However, thanks to Stern, these bigots can no longer use the "outrageous" label to shut down folks like O'Reilly. After all, even the bigots note that O'Reilly's comments are not more outrageous than Stern's comments about anal sex, transvestites, and heroine addiction.

Let's support the EFF, Howard Stern, and ... Bill O'Reilly.

If you hate what is happening to our nation, the USA, then please the following on the November ballot.

president: Bill O'Reilly
vice-president: Tammy Bruce

Mod Chips

[Slim Cognito]

1st our Playstation's, then our X-boxes, then, in the same vein, our TiVo's -- We'll just have to mod-chip our TV's now too.

Re:Mod Chips

[BK425]

Please don't say "mod chip" and "vein" in a thread having to do with government power : ) (I think)

Disolve the FCC

[kevlar]

This is a perfect example of the FCC overstepping its original charter. Its sole purpose was originally to regulate radio spectrum to prevent interference. Now it wants to regulate VoIP, nasty words and whether or not one should be able to use their VCR. This is just getting completely out of hand. I'm sure its one of those govt departments that has an obscenely huge budget.

You suck Michael Powell.

Re:Macrovision

[evilninja]

I don't believe the FCC was responsible for the region codes on DVD's and in DVD players. (See FAQ here.) That was a decision by the movie industry to take copy pretection into their own hands, and they managed to pressure most hardware manufacturers into making DVD players with embedded regions. With the FCC's help or not, there's a good chance the MPAA et. al. will manage the same thing here. If the industry can influence the production of DVD players, the industry can influence the production of TV's. If the MPAA blocks their movies from broadcast on any station that transmits a digital signal without a broadcast flag, it won't take long for all digital channels (think HDNet Movies) to adopt the broadcast flag.

thank god...

[buhatkj]

all i gotta say is thank god we have the EFF. Without them, i think the internet and largely the USA in many ways would have become a corporate police state LONG ago.....

While we are at it, how about a challege to the existance of the RIAA and MPAA under antitrust law??? Everybody knows they use these organizations for price-fixing.....defeats the purpose of capitalism....

Re:thank god...

[ZX-3]

In fact, there are currently attempts to sue the RIAA under the RICO act.
Search google: riaa "rico act".

October 14 ?

[l2718]

Follow the link to the legal documents. They are dated "October 14, 2004"!

Analog hole

[Gothmolly]

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.

You misunderstand Part 15

[wowbagger]

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.

TV the great mind waster!

[gwn]

Come on people! Just turn the monster off, tv that is. This is our chance to reclaim our minds, lives, families, communities and country.

It is the medium used to controll us, numb us and turn us into the machines the "man" wants. ...well someone had to say this... right?

That's exactly the problem. . .

[GoodNicsTken]

Haven't you figured it out by now? The RIAA/MPAA doesn't really care if a few geeks know how to open up a TV/PC and disable the broadcast protection. They only care when it becomes easy for the average user.

Think about it, news groups are still out there, because you have to know how they work, how to unRAR a file, burn an image file, or just mount it with Daemon tools.

Napster was easy and it's gone. Kazaa is easy so they are trying to sue it out of existence and flood it with spoofs.

They want the average user to only be allowded to do what they choose with content.

In this case I think they have gone too far. This is basically saying you can't use a VCR to record Digital tv broadcast over public airwaves (yes Public, we own them not they FCC, they only manage them).

If they need to be protected then DONT BROADCAST OVER PUBLIC AIRWAVES IN THE FIRST PLACE!

Re:That's exactly the problem. . .

[BillyBlaze]

Be careful with your nomenclature. Even accepting pirating=copyright infringement, not all copying of TV is copyright infringement. A big part of the reason we're all so pissed is because the broadcast will stop us from using our homebrew PVRs with HDTV for most shows. Yes we're copying, but we're only timeshifting, and the Betamax case says that's legal. And even though with the broadcast flag, most of us would still figure out how to do it, I prefer it when the things I do are legal.

Re:fp? I'm not being flamebait....

[Ralph Spoilsport]

Sure: a TBC won't do diddley to a digital signal in digital form: however: once it is in a form you can route to a monitor, you use a TBC to clean out the flags and macrovision and all the other crap they use to cripple people from making copies.

So the signal route would be:
digital receiver -> monitor -> output -> TBC -> digital recorder.

Yeah - there will be a little loss, but you'll still get a pretty damn good copy. So, no, I was not being flamebait, nor was I off topic. I was just trying to point out that there are ways around all that crap.

If I'm going to flame someone for something, you'll know... and I NEVER post anything as an AC, unlike some AC's here, because I believe what I post is true. When I'm wrong, I appreciate being corrected - it's a little thing called "learning".

RS

Re:Macrovision

[GoodNicsTken]

That's where your getting the issue confused. MPAA has a relationship with the stations because they sell them content. They have no relationship with TV makers. Just because the broadcast flag is sent doesn't mean the TV has to use it. That's why they pushed the FCC for the flag.

Just like they are going to push congress for a law after the EFF wins. However, it's a much harder sell, and we can speak up about it to our represenatives.

Re:Macrovision

[Hatta]

Ie; V-Chip is optional...

From the FCC's V-chip page:

Pursuant to the Commission's rules, half of all new television models 13 inches or larger manufactured after July 1, 1999, and all sets 13 inches or larger manufactured after January 1, 2000 must have V-Chip technology. Set top boxes that allow consumers to use V-Chip technology on their existing sets are now available.

Of course, it's up to you whether you want to use the V-chip that the gov't forces you to buy.

Think they did that with DAT

[SuperKendall]

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.

Re:Think they did that with DAT

[Fulcrum of Evil]

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.

It was congress that passed that law, with an exception for 'professional grade' equipment, which started showing up shortly after. The no-copy flag is believed to be largely responsible for the minimal penetration of audio DAT in the US.

It is also the medium of news

[SuperKendall]

Like it or not, it's also the medium by which the populace at large gets most information to base decisions for things like voting on. There is some fear (though I admit it seem farfetched) that a broadcast flag could be used to limit what is reocrded... imagine not being able to record and analyse the state of the union, or debates for example.

In reality it will mostly be used for football and broadcast movies to start with (both of which I can do without), but it is a slippery slope.

I only watch a few hours of TV a week, but I am still trying to help fight this. If the technical people who do not undrestand the dangers now do not, then it will be much worse for everyone later!

Re:Macrovision

[Armando_Mcgillicutty]

But if this thing isn't forced by law to be in every tv, and I have a choice between a Sony tv that supports the flag, and another brand that doesn't, guess which brand I'm going to buy.

Re:As long as Bush is in power...

[Asic Eng]

No individuals or (relatively) small groups will ever win any case no matter how valid, if it reduces the control, power or profitability of large companies.

I think you are mistaken, have a look at the list of EFF victories for reference.

No post about our rights or copyright usage.

[BrookHarty]

I find it funny that the copyright issue is forced usage not applied usage. The angle everyone attacks the copyright issue is from the "Copyright holder" not the public.

The copyright holder has the right not to put his copyrighted work on our public airwaves without the broadcast flag. But under a free market, someone else will step up and fill that role.

We let the content providers dictate what usage we must agree too, when in reality we should force them to our regulations. If they don't like the regulations, they can still protect their copyrights and not release. But its a true free market, someone else will step up and do business. Copyright is the smokescreen to total control of distribution.
You can have 100% open distribution and protect Copyrights, the copyright owner just doesn't participate.

Example.
Sony: We won't show our new movie on HDTV if it doesn't support the broadcast flag.
Cable CO: You have that right, we will go with someone else's movie then.

And you just opened the market and have no regulation, in fact that's de-regulation, and people still have copyrights over their content.

Our society has it backwards, we allow businesses to dictate the ways and means of how they do business with the public. This is what creates mono or duopolies. We over-regulate the protection of the businesses, and the consumers pay for it. Why should business's have special interests? It's a free market, well, in theory.

BTW, FCC Chairman Michael K. Powell wants the market de-regulated, he understands it. He showed it in the non-regulation on WiFi, he should use it for HDTV also. Wish I could ask him, humm.

-
USA ranked 114 worst voter participation by country.

Re:Setting Legal Precedent for Howard Stern and Il

[The_Whole_Fn_Show]

I'm not sure if Stern and O'Reilly is a fair comparison.

As far as I know, most people who dislike O'Reilly do so not because of his "outrageousness", but because of all of the spin that goes on in the "No Spin Zone." They dislike the fact that he claims to be objective and unbiased, but is clearly hardcore Republican, as is the "fair and balanced" station that his show is on. If I watch Fox News, my entertainment center leans so far to the right that everything on it falls off. And this is coming from an independent that has alot of problems with both major parties.

Stern's show, on the other hand, doesn't seem to be politically motivated, which is why I question the validity of that comparison. O'Reilly's "outrageousness" may have been the stated reason, but his agenda is why most take issue with him.

Also, I noticed that you used "bigot" a few times, and that makes me think of how the war on terror "is hard work." Sorry, I couldn't resist.

Re:Public Airways

[ravenspear]

My problem with this bill

This is not a "bill." Congress passes bills. This is simply a ruling by the FCC. That is the EFF's argument in this case. They are saying the FCC has taken on matters which should only be under the jurisdiction of Congress.

Re:Macrovision

[cdrguru]

The Japanese Government operates the DVD Forum, of which the DVDCCA (DVD Copy Control Authority) is a part. These organizations dictate how DVDs are made, and license the CSS technology. Failure to have properly licensed CSS technology or failure to use Macrovision properly gets you a lawsuit by either Macrovision or DVDCCA or both.

The broadcast flag is pretty much a done deal. CBS said they would never move to digital broadcasts unless the broadcast flag was mandated. Since moving all television broadcasting in the US to digital is a significant goal, it was virtually a no-brainer to thus mandate the broadcast flag. I think some other broadcasters were on CBS's side but none made the big public splash that CBS did.

Basically, the only way to get rid of the broadcast flag is to (a) convince the broadcasters they should give up their copyright to digital broadcasts, and (b) ensure that without this protection the broadcasters still move to digital broadcast.

Unfortunately, this will only apply to a few million people in city centers - digital broadcasting doesn't have the range that the analog broadcasts do. Cable and satellite systems will implement the same no-copy on the digital output from satellite receivers and cable set-top boxes. I believe it is there already for those folks with an IEEE 1394 connection from the cable box to the HD TV.

A friend of mine likes to say....

[jhines0042]

On the topic of listening to cell phone transmissions a friend of mine likes to say "If it passess through my body, I have a right to listen to it".

I would argue that the same is true for the broadcast flag. If you beam it to my house, I can do with it what I want.

Re:a real stretch

[w9ofa]

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.

Re:a real stretch

[Buelldozer]

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.

I think you're confused.

[raehl]

The FCC can say "Any VHF receiver must also receive UHF."

They can say "Any television receiver must include a v-chip."

They can say "Any television receiver must receive a broadcast flag, and include the broadcast flag with any signal retransmission"

What the FCC can *NOT* say is "Any television signal recording device (VCR/TiVo) must respect the broacast flag", as those devices are not receivers. Once the signal is off the airwaves and into wires, FCC mandate ends.

Now, they *COULD* say that "Any television receiver may not externally transmit any signal with a broadcast flag", but, well, that'd be dumb.

Re:Macrovision

[bnenning]

CBS said they would never move to digital broadcasts unless the broadcast flag was mandated.

An obvious bluff. What are they going to when analog goes away, not broadcast over the air at all?

Basically, the only way to get rid of the broadcast flag is to (a) convince the broadcasters they should give up their copyright to digital broadcasts

That doesn't follow. I can record non-HD shows today, but that doesn't mean that the producers have to give up their copyright. All they have to give up their fantasy that they should have complete control over how the content is used.