Court Says FCC Out-of-Bounds With Digital TV

USA4034 writes "A U.S. appeals court on Tuesday stated that regulators had overstepped their authority by imposing a rule designed to limit the copying of digital television programs." From the article: "The FCC rule aims to limit people from sending copies of digital television programs over the Internet. The FCC has said copyright protections are needed to help speed the adoption of digital television."

Comments

But they didn't say ,"Stop!"

[winkydink]

But it was unclear whether the judges would strike down the FCC's 2003 rule, since doubts were also raised about whether the American Library Association and other opponents had legal standing to challenge the rule in court. They'll let the FCC slide on a technicality, mark my words.

Re:But they didn't say ,"Stop!"

[InThane]

As a junior high student in the mid '80s, I spent more than a few mornings down in the principal's office for refusing to stand for the pledge of allegiance. I didn't quite understand why at the time, but there was something about an enforced loyalty pledge that included a call to a divine being I did not believe in that just struck me as Wrong.

I chose not to participate. I was punished.

Re:But they didn't say ,"Stop!"

[michrech]

I can second your experiences, excpet I was punished all through high-school for it. (I didn't realize that I could go against my parents forcing me into religion untill I was aroung 14. They didn't like it. They didn't like the constant phone calls from teachers for how evil I was. They eventually got over it.)

Re:But they didn't say ,"Stop!"

[drinkypoo]

Want a primer on the issue of the pledge of allegiance? Read The U.S. Pledge of Allegiance. The "under God" phrase. Note that "Under God" was not added to the pledge until 1954. If you don't believe that phrase endorses Christianity, you don't understand the way the language works. If you don't understand what is wrong with endorsing an individual religion in the national pledge, which schoolchildren have often been forced to recite even in California, then you fail to understand what Thomas Jefferson, himself a religious man, had a firm grasp on. I don't fault you for not being as smart as Jefferson but probably you should read Jefferson's Letter to the Danbury Baptists. The following is the meat of the letter:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State.

This makes it pretty clear what was intended - keep government entirely out of everyone's religious affairs, because if you meddle just a little bit you screw everything up. The government covers actions, so you can believe whatever you want but you still can't, for example, perform human sacrifice because it's illegal to kill people even if they want to die. It recognizes that the human mind is somewhat fragile, and so is the conscience.

My mother and father were both raised Catholic. Both recovered; my mother is now either atheist or agnostic (I'm not sure which) and my father is Lutheran. My mother gave me the option to go to church if I wanted to, and I went to a Christian day care because it was inexpensive. Thus I learned the usual children's bible stories. However, I never developed a belief in God and as it was a day care and not a nursery school no one ever tried to force religion on me. In sixth grade I informed my teacher that I intended not to say the pledge due to its religious content and was informed that I would be saying the pledge. Is that at all appropriate? First of all, it really doesn't accomplish anything to say a pledge, and it means even less when you are forced to do it. However, it is nothing less than the shoving of religion down young throats. If there is no Law that respects an establishment of religion, then you simply cannot be forcing people to perform this public worship.

I would have liked to see it written "any establishment of religion" because then we could take the tax-exempt status away from the religions. Why should they get a break? Because they supposedly help people? Religions are a means of control, you can have spirituality without ever visiting a building with stained glass windows.

Anyway aside from snarkiness, it is clear (and the 9th Circuit Court of Appeals agrees) that the phrase "under God" promotes a specific group of religions, essentially those religions attached to the specific meaning of the word "heathen": "One who adheres to the religion of a people or nation that does not acknowledge the God of Judaism, Christianity, or Islam."

If you want to smack Newdow around over trying to amend the problem of an unconstitutional change to our pledge of allegiance that occurred in the fifties, then you'll find a whole lot of other people standing in your way.

Re:But they didn't say ,"Stop!"

[Moofie]

You are free to speak, or to not speak. You are not free to dictate other peoples' opinions of you.

Social stigma does not have the force of law.

Re:But they didn't say ,"Stop!"

[Slack3r78]

Here's the thing though: When you're a student, the social stigma of the school's administration *IS* law for you. And while it may be against the rules for them to compell you to recite the pledge, it doesn't mean they won't try. I grew up with a school system that took quite a bit of legal pressure to finally realize this.

Given the fact that the "Under God" phrase is borderline unconstitutional in the first place, I fail to see how supporting its removal so school officials will stop bullying children is such a bad thing.

Re:But they didn't say ,"Stop!"

[Darren Winsper]

Most people who voted in favour of the PATRIOT Act didn't actually read it. If congressmen are going to be *that* retarded, you have to wonder how you could ever convince them not to vote for a particular law.

The FCC Is Folding With Four Aces

[Steve B]

The FCC has said copyright protections are needed to help speed the adoption of digital television.

BS. The government is determined to take back the analog spectrum and move TV to the new digital channels. All they have to do is just do it, and the entertainment industry will have to deal with life in the new reality.

Re:The FCC Is Folding With Four Aces

[EnronHaliburton2004]

Is it really the job of the government to rip up an existing, heavily used infrastructure and force the providers and users onto a new infrastructure?

I don't think HDTV is worth the price. I'm not about to plunk down $1000 for a new TV $100 for a HDTV converter, when my existing TV works good enough. In the end, I would have the same basic product, but I'd have $100 or $1000 less in savings (or $100 or $1000 more in Credit Card debt). But OOOO there are more pixels on the screen now!

Basically, if the FCC shuts down the analog TV spectrum and insists that I spend money on a new thing, I'll stop watching TV. There are millions of people like me, and somehow I don't think the broadcasters want to lose the business.

A Victory for Common sense

[Staplerh]

Thank goodness that this fell into the lap of a judge with some common sense. Seems like he made some pretty smart comments:

"Selling televisions is not what the FCC is in the business of," Edwards said, siding with critics who charge the rule dictates how computers and other devices should work.

Edwards and one of the other two judges, David Sentelle, agreed with the critics and told FCC lawyer Jacob Lewis that the law does not give the agency specific authority to dictate how electronic devices must be made.

Good call, in my humble opinion. The FCC quite simply had no jurisdiction, they outstepped their boundaries, and they were called on it.

What does this mean for the future of television?

[Sheetrock]

As much as I hate to play devil's advocate, the rampant adoption of PVRs has left television in a sad state. Advertisers are no longer willing to pay top dollar for airtime out of fear that their commercials will not be watched, prompting an exec to compare fast-forwarding to theft of service in a fit of hyperbole.

Theatrics aside, the cost of quality cable or satellite programming has gone up, but the quality has been on a steady decline because of the loss of ad revenue. The FCC decision like most of their actions was made to preserve the standard of service that we've grown accustomed to, and one wonders if it will be worth recording if there is nothing at all to record.

Re:What does this mean for the future of televisio

[Create an Account]

...the cost of quality cable or satellite programming has gone up, but the quality has been on a steady decline because of the loss of ad revenue.

Another byproduct of this is that we continue to see more advertising per unit of content. I recently discovered that new DVDs have previews at the beginning that I cannot skip. WTF, I already paid them for their content, now I have to have commercials to watch a DVD that I own? Do I really have to rip all of my own DVDs and re-burn them without commercials?

Lame. Very lame.

Re:What does this mean for the future of televisio

[GMFTatsujin]

And yet, I can't bring myself to believe that if the broadcast flag were to become a mandated reality, then studios would suddenly unleash the full potential of their creative entertainment genuis on us at last. "Now at last that piracy has been defeated, we can afford to put quality television on the air once more!" -- I doubt it.

It's in their best interests to present a facade of barely treading water all the time. That means that even if they get their way with the broadcast flag, some new evil will appear that they have to be seen to chase down.

The BF is a DODGE, guys.

Re:What does this mean for the future of televisio

[Tackhead]

> Theatrics aside, the cost of quality cable or satellite programming has gone up, but the quality has been on a steady decline because of the loss of ad revenue. The FCC decision like most of their actions was made to preserve the standard of service that we've grown accustomed to, and one wonders if it will be worth recording if there is nothing at all to record.

I respectfully disagree.

The cost of delivering programming has dropped drastically, but the number of eyeballs on screens (and consequently, total advertising dollars) have remained relatively constant.

Furthermore, the ease of delivering content has meant that there are less advertising dollars available for any given hour of content.

The requirement that shareholders get a return on their investments has consequently to a need to reduce the cost of creating said programming.

We saw this when we went from a 3-channel (ABC, NBC, CBS) universe to a 50-channel (+47 channels of cable) universe. Mainstream "news" programming got the axe; why have a foreign bureau and an investigative team for 2 hours a night when you can do 15 minutes of soundbites, 15 minutes of sports, 15 minutes of weather, and 15 minutes of advertorials made to look like "human interest" or "your health" stories, freeing up the second hour per night for a couple of sitcoms?

Now that we're moving from a 50-channel universe (ABCBSNBCNNESPBSNFOXNickSciFiDiscovery and a whole bunch of other names you'll recognize) to a 500-channel universe ([thumbing through the "D"s... Discovery Homes. Discovery Queer Eye. Discovery Paranormal. Discovery Quadrupeds. Discovery Plants. Discovery Avians ... [flipflip] Disney Ages 0-2...), we have the same problem again.

And we see the same result: Cut the cost of production, shifting to reality shows over stuff that requires expensive scriptwriters, content licenses, and/or (pen/ink/CGI) animators.

You'll get this result regardless of whether you have a PVR or not. You cannot watch more than 24 hours of TV (that is, 8 hours of advertisements) in a day. The value of an ad placed on Disney Nostalgia Channel Males Aged 30-49 is going to be less than "Behind the Wonderful World of Disney: Annette Funicello Does Disneyland" on ABC in a 3-channel universe.)

Kick Ass is right.

[game kid]

I welcome our upcoming legal South Park HDTV episodes with open arms. If there's such a thing as--or need for something like--an HDTV South Park episode. (Maybe we can see the actual food chunks in Mr. Hankey?)

Seriously, I worry this opposition won't get recognized. TFA does say "...it was unclear whether the judges would strike down the FCC's 2003 rule, since doubts were also raised about whether the American Library Association and other opponents had legal standing to challenge the rule in court." and when money is involved rulings like to end up going the way of The Almighty Dollar(R).

Fair Use

[Anonymous Coward]

If I record a show on my old VCR, which is wearing out, and I then download a good copy from the Internet am I doing something illegal?

North Korea resemblance

[kevinmf]

I don't know if anyone else will agree with me, but this whole requiring manufacturers to make new TVs with this copyright bit reminds me of an article I read in NY Times magazine a couple years ago.

In North Korea, all TV / Radio communications are controlled by the government and all TVs and radios brought into the country are only allowed to receive the state channels, and not any broadcasts being made from South Korea or elsewhere. Even TVs brought form China are rewired / have their wires cut as they enter the country. Granted some people can fix that, most do not from what I understand.

This copyright bit thing - forcing manufactures to incorporate it into their new sets -at least from an abstract point of view, reminds me of that.

Anyone else agree?

Re:North Korea resemblance

[Detritus]

The Germans did something similar during World War II. They tried to replace all of the normal radios with crippled radios that could only receive broadcasts from the official government radio network. They didn't want their citizens listening to the BBC and other "subversive" sources of information.

Re:What does this mean for the future of televisio

[Anonymous Coward]

GOD, this attitude pisses me off.

Sorry. I do theater semi-professionally. Semi-professionally because I can't afford to do it full time (that's a little thing I call foreshadowing).

There are some tremendous actors out there in theater, in film, that you've never heard of. I can name 50 people I've worked with who are more talented than all but the very upper echelon of Hollywood types. I know directors who can do REALLY amazing things, and writers who can write gripping dialogue. And none of them make it.

Why? Because NOBODY'S F#CKING WATCHING!!!! When is the last time you went looking for an independent film, rather than seeing the latest well-marketed film from MGM, Mirimax, or Disney? Sure, there are occasional exceptions, but even those turn on one really catchy, marketable idea (frankly, the acting in Blair Witch Project was subpar--it was the premise and cinematography that was interesting).

Yeah, on a technical level, it's not all that hard to throw something together. As I said, there are some tremendously talented people out there who will work cheap. I could probably put together something better written, better acted, and more interesting than the average sitcom on a tenth the budget. But who will watch it?

"Oh, the networks will have the incentive to pick it up!" Yeah, right. Like I said, when was the last time YOU saw an indy film?

Marketing is a big deal. Getting sponsorship (even cheap shows will have some costs) is a big deal. Getting airtime is a big deal. Most importantly, getting an AUDIENCE is a big deal. Noticible stars make a big difference. "From the producers of" makes a big difference. People are largely sheep--they want something familiar before they tune in. Like it, hate it, but the "free marketplace of ideas" still rewards well funded mediocrity over poorly marketed genius. Watch the Oscars this weekend if you don't agree. Titanic, you may recall, took home 11. Heck, Arrested Development is on the verge of being canceled, despite being arguably the best comedy on network television and actually being on a big network in a decent timeslot.

The Shield on FX is a better show than NYPD Blue has been for the last 3 years, but it doesn't make nearly the same audience. And The Shield is THE success story for independent TV.

It may be a myth that it takes huge amounts of money to make a good show. But it's assuredly NOT a myth that it requires lots of money to make a show people will watch.

The side of the road is littered with better shows than most of the crap that's on your TV in primetime. You want to do something about it? SUPPORT THE INDEPENDENTS. Watch TV shows that TV giude doesn't put on the covers. See what's on networks that aren't top of the line ("Pilot Season" on Treo was tremendous). Do your own research on what's good instead of checking out what you see in the paper as "the thing to see".

When you're willing to do that--when you're ACTUALLY OUT THERE supporting (with your eyeballs, your time, and your dollars) the independents, kindly refrain from kvetching about "other people" being brainwashed.

Timing is everything

[flinxmeister]

So let's say the FCC is allowed to enforce this rule on a technicality or whatever.

Doesn't mean it won't come up again. And it doesn't mean that it won't eventually be struck down. And if it takes a couple years to do such a thing, all these HDTVs will be out on the market using the older technology. The 'content producers' will have shot themselves in another foot. They can't try any new tricks due to the large installed base. And by then the average consumer might be savvy enough to start demanding flag unaware televisions.

They'll really have no choice but to remove broadcast flags altogether. Sure, it's alot of ifs, but they could have royally blundered their diabolical plan for eeevil world domination through their own over reliance on lobbying the FCC.

If digital TVs were cheaper, I'd adopt faster.

[purduephotog]

Therefore, the FCC should convince the rest of the government to subsidize the cost of a 7000$ plasma 70" TV to about 299$. Then I'll buy it, and I won't give a rats ass (gnats-ass?) about the broadcast flag.

Yep, I can be bought.

(There's always my precioussssssss StarGate DvDs...)

What a catch 22...

[doormat]

The FCC stepped over the line.

But consumers might not be able to challenge the FCC in the court system (since they have to prove they were damaged or harmed somehow).

Perhaps I should start a company that will make HDTV capture cards, and the broadcast flag implementation is costing me money, then I'll sue the FCC and claim they're harming my copmany.

Legislative Malfeasance

[gmcraff]

I propose that the crime of legislative malfeasance be codified into law.

Whereas:

• The passage of laws, rules or regulations in direct contravention of the limitations of government codified in a written constitution violates the contract between the governed and the government;
• The passage of laws, rules or regulations in excess of the granted authority of a government body is an offense against the liberty of every citizen;
• The passage or implementation of offending laws, rules or regulations requires the complicity of numerous private citizens, independantly or in collusion, exercising governmental powers in excess of their granted authority;
• The passage and/or implementation of offending laws, rules or regulations requires manhours, funds, materiel, etceteras, that would have better been lawfully employed in pursuit of the legitimate powers of government;

...and furthermore...

• The government possesses no independant funds or means, but rather holds taxpayer money, and therefore cannot recompense the whole of the citizenry but by giving back their own money;
• The government cannot provide compensation in the form of extra services to the whole of the citizenry because this would require taxpayer funding;
• The cessation of offending activities on the part of the government in no way recompenses the citizenry for the offense committed against it;

...the crime of Legislative Malfeasance shall apply to

• members of legislative bodies that vote for the offending laws, rules, or regulations in excess of the authority and powers enumerated in a constitution;
• members of executive branches of government that have signatory or veto authority on the offending laws;
• civil servants in managerial positions that were complicit in the implementation of the offending rules or regulations.

Any citizen that is subject to, must comply with, or is otherwise compelled by a unconsitutional law may bring suit in any superior court. The defendents (necessarily all complicit persons, no subsets) may appeal to higher superior courts. The remedies specified if the suit is upheld are as follows:

• County superior court or federal court: The court costs of the plaintiff shall be borne equally by the defendants.
• State superior court or federal appeals court: The court costs of the plaintiff shall be borne equally by the defendants, and the defendants governmental positions shall be openned for re-election at the next general election.
• Supreme Court: The court costs of the plaintiff shall be borne equally by the defendants, and the defendants positions are immediately vacated and openned for special election.

There. That'll slow down the inexorable grind of government expansion.

Idiots...

[SteveXE]

Why do they think copy protection will make people adopt new standards faster...lets think.

Ok i can download something on the net and watch it on one of those new "device name here" maybe i should go buy one. Or....

Hmmm This thing is locked up tighter then Bush's sense of moral duty maybe i should skip it and buy something that has the user in mind.

Would you be offended if...?

[IBitOBear]

Let's see, the sect of Christianity least likely to lose its members is Satinism. Would you be offended if your child, while not having to say the prayer, were forced to stand or sit and listen to an invocation of Satan once a week?

After all, your children _aren't_ being forced to say the invocation, they can sit it out just fine, as long as they listen respectfully and don't offer a disrespect to the beliefs of others.

How about a quick chicken-blood splash of Vodun?

Five minutes of Scientology "Confront Technology" (e.g. getting yelled and at and threatened, and then getting punished if you react in the slightest)? Even if they "only" have to watch it happening to other students?

Hindus outnumber Jews and Christians combined, so how about this schedule: Genesh on Mondays, Wicca on tuesdays, Yaweh (Jewish) on Wednsday, Kali on Thursdays, Yaweh (Christian) on Fridays, and Satan on special event Saturdays, Allah Field Trips and pre-game prayers; and a reading from Dianetics the first day back from summer vacation each year. Nobody has to join in, but they can all have to sit respectfully quiet while it is going on.

After all, but spreading it out

===

It's like second hand smoke and getting shot. "Rights" exist in competition, and the right "not to" do/participate ALWAYS trumps the right to do something.

e.g.

-- I have the right to smoke. You have the right not to be forced to breathe my leftovers.

-- I have the right to keep and bare (and so shoot) arms. You have the right not to be gunned down at the Circle-K.

-- I have the right to preach that (your ethnic/spritiual group) is sinful or sub-human and deserves (some negative end). You have the right to demand that I not force your child to listen to my crap; and your child has the right to make that demand even if you wont; either of which means that I am not allowed to do it in your childs school.

The "they don't have to participate as long as the sit there and take it" isn't a reasonable position once my shoe is on your foot.

===

"Freedom of religion" means freedom _FROM_ religion.

Imagine the hue and cry that would result if someone were to buy a mountain top and erect a giant pentagram-on-a-stick or Goat-Head or Horned-God to stare down beautifically on your township. There is no dogma provided, and nobody is being forced to even look at the thing. But it is there, and someone will be botherd by it, I garantee. And someone who probably woudn't know the first thing about the variant meanings of the symbols because both the message sent and the message perceived count.

===

But I agree the separation of church and state should extend to our money and our documents. That "natural god" and "all men are endowed by their creator" are historical legacies, but the "under god" that was revised into the pledge (and which breaks the scansion) and the "in god we trust" should be expunged from the money too.

Fix the Name, its the "Prior Restraint Flag"

[IBitOBear]

This isn't a "broadcast flag" its a "prior restraint flag."

Make it a selling point. "Now you crooks can't steal(*) from us innocent corporations!" and "Now with less confusing features!" "No more Blinking VCR clock!".

Have a big splashy logo with "Prior Restraint -- Now we are all Safe" emblazoned on its paraphry and handcufs bound by antena wire in the center (all nicely designed by a good marketing firm).

As long as each television set and "protected" broadcast has to have the big "Prior Restraint Flag" logo splashed on it, go ahead. See how it sells _then_.

That would, after all, be required under the truth-in-advertising and disclosure laws.

8-)

Not Challenged based on fair use?

[HeelToe]

From my read of TFA this doesn't look like it was challenged based on the issue of fair use, but rather, based on its detriment to citizens in the form of higher prices for equipment and content.

What? Why not tackle this for its effect on fair use?

Re:Rant

[mailman-zero]

I rarely go to the movies anymore, and every time I go I'm reminded of why. I had tickets given to me as a gift so my Wife and I went to the movies last night. Here's what happened:

• Arrived 25 minutes early to get our choice of seats.
• As we were sitting down the soft background music stopped and a cartoon started playing. Nothing nefarious about this yet.
• The short was a commercial to watch the full version on Cartoon Network and lasted five minutes.
• I realized that we were stuck watching 20 minutes of commercials wile waiting to the movie. The commercials prevented casual conversation because they were loud and distracting.
• Finally the showtime came and there were another 25 minutes of commercials!
• After 45 minutes of straight commercials I was scolded for taking salaries away from Hollywood set builders because I download movies.

Let's just say that I'll keep watching movies but I'm probably not gonna be doing it in a movie theater again any time soon.