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?

[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?

[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?

[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?

[Detritus]

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

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.

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...

[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.

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...

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.

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: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...

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: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.

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.

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.

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: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.

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.

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.