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

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.

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.

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: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.

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: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: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.

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.

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: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.

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.

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?

[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: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.