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Broadcast Flag in Trouble
pdqlamb writes "USA Today reports an appeals court was not amused at the FCC's broadcast flag rule. Sounds like the judge bought into the argument that the FCC does not have the authority to dictate device design. The broadcast flag isn't quite dead yet, but at least it's in trouble."
Yeah, this was a complete legal smackdown all right. The only reason the court could possibly have for not killing the flag is a technicality. If they find that the plaintiffs don't have standing to bring the complaint, all it means is that they have to wait for someone with standing to bring it. Sooner or later, that flag is history. At least until the broadcasting conglomerates can find some other way to require it...
PS: First(ish) post!
Editor Emeritus and Senior Writer, TeleRead.org
The broadcast flag isn't quite dead yet, but at least it's in trouble
This is by no means dead. When the entertainment industry can't foist something on you by the backdoor they use plan B: Ask the senate for a nice bit of special interest legislation.
You can tell the quality of your opponent by the cunning of their plan B, in this case their plan B is just as good as their plan A. In a way, I kinda admire the cunts.. :)
Simon.
Now what am I to do with the truckloads of flag-free tuner cards I bought? Since social security is going down the tubes, I guess it is back to plan B for my retirement plans: leech off my kids.
I Am My Own Worst Enemy
Just XOR the broadcast flag with the evil bit, sheesh!
Whoa! I just had deja vu
This is NOT a dupe.
Slashdot rigerously enforces the Dupecast flag, and makes sure stories are only posted if the flag is not set.
Or does that not count until after July?
liqbase
We start with: "Ancillary does not mean you get to rule the world...You've gone too far. Are washing machines next?" (Edwards)
Followed by: "You can't regulate washing machines. You can't rule the world." (Sentelle)
Tag team attack! Now if only we could get one of them to hear the lokitorrent.com case or, better yet, outlaw the RIAA...
www.kiwilyrics.com - a wiki for lyrics
The broadcast flag may be dead... ... but the repeat flag is still living strong!
I dont have explicit authority to fine people for looking at me in a funny way, but it isn't outlawed. I'm woindering what mandate the FCC has to go past explicit authority.
It is official; USA Today now confirms: Broadcast flag is dying. One more crippling bombshell hit the already beleaguered FCC when USA Today confirmed that broadcast flag market share has fallen yet again, now down to less than 50 percent of federal judges. Coming on the heels of a recent ruling which plainly states that the FCC has "crossed the line", this judgement serves to reinforce what we've known all along. The broadcast flag is sending the DRM industry into complete disarray, as fittingly exemplified by bottoming out in the recent ruling from Judge Edwards.
You don't need to be Michael Powell to predict the broadcast flag's future. The hand writing is on the wall: the broadcast faces a long and tortuous future. In fact there won't be any future at all for the broadcast flag because the content industry is shrinking. Things are looking very bad for the content industry. As many of us are already aware, the content industry continues to lose market share. Red ink flows from Hollywood like a river of blood.
The broadcast flag is the most hated of them all, having been ruled against by at least one circuit court judge. The sudden and pleasant release of the long developed arguments in court only serves to underscore the point more clearly. There can no longer be any doubt: the broadcast flag is dying.
Let's look at the numbe[BROADCAST FLAG INFRINGMENT DETECTED - REDISTRIBUTION OF A DERIVATIVE WORK OF NETCRAFT, INC - POSTER NEUTRALIZED]
Ok this is offtopic and I'm sure the super secret mod cabel is going to mod me down for it, yada yada...
All you people bitching about dupes got it all wrong, we need these duplicated stories on slashdot for a few good reasons.
1) without dupes there would maybe be one story per day on the front page.
2) without dupes people would have to resort to actually being insightful on their own instead of just copying some other comment from the previous story.
3) ????
4) Profit!
This sig has no nutritional value...
Anyone can copy a show for educational purposes - not just librarians (or teachers).
This new chipset might very-well prevent people from recording shows on VCRs - which is allowed per the beta-max ruling that happend over twenty years ago.
IIRC the beta-max ruling applies to recording shows onto dvd (just another medium...hell some people don't even have VCRs anymore - just DVRs and the like).
I hope the judge lays the smack down.
I also find it disconcerting that it has been mentioned that advocate groups cannot contest FCC rules...since when can't the public contest a law/rule by a gov't agency...last I heard gov't agencies (i.e. FCC) work for us.
I mod down so you can mod up. Your welcome.
When saying that the jugde didn't buy that the FCC has the right to pass this rule, it should be noted that here was no actual ruling, and that the court might even decide that the case can't be brought by the parties that filed it (which leads to the crazy logic that the judge outright says that the FCC has no right to make this rule but he'll do nothing about it). Worse, with no rule set by the courts and the deadline fast approaching, manufacturers who want to stay in business have little option but to supprt the damn flag. They are less likely to spend more money later to redesign new hardware to omit support for it again, and if they do that will only drive the price of HDTV even higher.
I'm an American. I love this country and the freedoms that we used to have.
I know they are not experts, but the least they could do is not confuse apples and oranges.
If Slashdot Ruled The World, these judges would have been (-1, Offtopic)
He's not saying the libraries aren't affected, just that they aren't affected more than anyone else. Ie., nobody can bring a lawsuit saying the government exceeded its bounds, as long as we're all getting screwed equally....if they throw the case out on that grounds, I'm gonna be really worried.
If the appeals panel decides that the consumers groups can't contest the FCC requirements, it would dismiss the case regardless of any concerns about the anti-piracy technology
This may be a naive question, but if not the people affected by the FCC cannot challenge them, who the hell can?
It's resting...
This rocked me back on my heels:
"The FCC's lawyer, Jacob Lewis, acknowledged the agency never had exercised such ancillary power but maintained it was permitted by Congress since lawmakers didn't explicitly outlaw it."
Especially since the 10th amendment to the US Constitution says:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Got that, FCC boy? If you're not explicitly given the power, you can't exercise it.
Lawyers! Damn their oily hides!
668: Neighbour of the Beast
I agree. This is definitely of poor quality. I think you should demand a refund.
It doesn't matter if the FCC is forced to repeal the broadcast flag. Manufacturers have already spent money to implement it, and the consumers probably won't force them to change it. Manufacturer's wallets are probably influenced more by the MPAA than by their customers. (As evidenced by PC manufacturers embracing DRM technologies and trusted computing.)
I bet that the flag will be repealed but manufacturers will continue to see the crippled hardware. Consumers will whine and complain but that will change nothing. The best we can hope is that it will become an excuse to sell you new hardware that is identical to what you just bought, except with a solder connection removed somewhere. The manufacturers then stand to double their money. Still, the consumer loses.
Am I the only one who's amused at the footer? :-)
Copyright 2005 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
/* Steinar */
(This comment is of course GPLed.)
The FCC's lawyer, Jacob Lewis, acknowledged the agency never had exercised such ancillary power but maintained it was permitted by Congress since lawmakers didn't explicitly outlaw it.
Hmmm... according to the Tenth Ratified Ammendment to the Constitution of the United States of America: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. -- The FCC should not be able to impose sanctions on anything, yet alone private trade (the devices).
Video Production Support
This story should be in the interest of nearly everybody who watches TV, yet the USA Today article makes it sound like it's only going to affect pirates, then has some vague reference to libraries being unable to use TV programs as educational tools.
Here's the problem: The broadcast flag can prevent normal people from recording any of their favourite TV shows. People care about that because they record shows all the time so they can view them later. People need to understand that what the FCC wants to do will give them less rights to watch TV how they want.
The global economy is a great thing until you feel it locally.
This may, in fact, work in favor of the corporate media moguls.
If precedent is set that the FCC can't regulate HDTV hardware implementations then they can legitimize their plans to enforce restricted access to media through the HDMI interface. Once the OTA signal is demodulated the FCC can't prevent the transmission of the video over an encrypted link. HDMI implementors are prohibited from providing unencumbered access to the full-res HD signal. Existing HD monitors and tuners will not matter since any new hardware with HDMI will not work with these legacy devices.
My guess is that the proponents of the broadcast flag are willing to lose it because it only serves to strengthen the fortifications for their next attempt at plugging the HDTV hole.
I am becoming gerund, destroyer of verbs.
It's been tried before; by King George, who was widely considered to be a combination of crazy and stupid. It turned professional smuggling into a honorable, even praise worthy, profession. Somehow I don't think people are terribly different some 230 years later. But our weapons are vastly more effective.
Their plan sounds like a good way to get a container of consumer electronics thrown in a harbor.
From TFA: "But another appeals judge on the panel questioned whether consumers can challenge the FCC's rules in the courtroom."
If consumers have to abide by FCC rulings and can be taken to court if they don't follow them then why would consumers not be allowed to take their rulings to court?
Well isn't this great? Now I need to go buy a new washing machine before July.
U.S. appeals court debates anti-piracy TV technology
It's being dubbed 'AntiPiracy' . Not Digital Rights Management or any other Politically Correct term. It's being shock valued, to bias the interpretation by the regular Consumers, and Average Mom & Pops. Mom & Pop VCR User doesn't want to consider themselves in the same light as the wiley Video Pirate. Seems to me an attempt to make it a little more palatable to the masses, and smooth the adoption via other means.
My cat's picked up a Hammer. HEY! Put down that Hammer. Put Down that Hamm...THUNK!
And of course this is only one circuit, others could hold differently if multiple challenges were filed around the country.
So judicially, this could play out for a long time.
And of course, Congress could just pass a bill mandating the broadcast flag or expanding the FCC's authority so that they can readopt this rule.
Armchairgenius.com - Where everyone is a genius.
This was a pretty big smack down. But, did it seem to you like the judges were a tad bit obsessed with washing machines?
Netjak.com independent reviews of domestic & import video ga
The reviews are coming in on teamhasnoi's latest effort Why not dupe my post?
One of the finest anti-editor rants this reviewer has seen in years. -- Ohreally_factor
Why don't we dupe his post? Why, will it get us more page hits? -- Commander Taco
A master work flawed only by it's lack of misspellings and typos. -- Timothy
Az ve zay in Fronce, "Viva les dupes!" -- Zonk
I'm totally drooling in anticipation of the sequel. No, check that. I'm just totally drooling. Anyone seen my bib? -- Samzenpus
It's not offtopic, dumbass. It's orthogonal.
...the judge owns a VCR. Try explaining to anyone who owns, or has owned a VCR, that they will be no longer be able to record the television shows that they're paing to see, and most people will end up with the correct conclusion: We pay for this service, and it's up to us when, and if we watch the shows.
It's so f'in ludicrous that the FCC thinks it can dictate what you watch, and when, but then still expect vendors to be able to charge us full price for a monthly subscription.
In fact, if something like this passed, I would propose a series of class action suits which would limit our monthly cable/sattelite bill to only that which we've watched! If we can't record shows, and watch them at a later time, then we shouldn't be charged for that which we're unable to watch, due to scheduling, conflicts, or personal choice!
Think about it... How fast will the cable providers be pounding on the FCC's door if they realize that they can only charge us for what we watch, on a per show basis! And if a bill like this passes, than that same logic applies to this: If I can't record and watch my TV at my leisure, then I shouldn't have to pay for something which I'm unable to watch due to federal legislation (and/or scheduling conflicts).
A country of television providers would be calling for the FCC's ass on a stake if this happened, and I don't think it'd be too hard to bring such a suite to court and win, if the FCC gets their way with the proposed limitations.
I am a lawyer, but this isn't legal advice. If you can somehow construe this as legal advice, the circus wants you as a contortionist.
The 10th would only affect whether or not Congress had the power, not whether or not htey delegated it.
Even assuming that Congress *does* have it, it would have to explicitly grant authority for this function to the FCC (or any other administrative agency). OTOH, if Congress doesn't have it, there is no way, whether it granted it or not, that the FCC could excercise it.
hawk
The court hasn't ruled yet. It's not going to rule for months, most likely. So it's very early to be saying that the broadcast flag is in trouble.
Mostly people seem to be looking at what one of the judges said. This is a big mistake.
Judges routinely will adopt a position opposite to that of what the lawyer before them has. By challenging the lawyer, they force him to make good arguments on behalf of his side, and to answer tough questions that he'd otherwise prefer to avoid. It doesn't mean anything as to the judge's opinion, or how he will rule. It's just a technique for getting information.
It's entirely normal to go in front of a judge, arguing on behalf of A. The judge will be very harsh, point out the flaws of A, and ask why B isn't better. When the other side has their turn, the judge immediately starts praising A and making the other side defend B. The constant is that he's putting whoever is in front of him on the defensive, making him explain his argument and admit to its weaknesses as well as the strengths that would be extolled anyway.
This sort of questioning doesn't mean anything about the eventual outcome.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Man that must be nice ehh? To loose in one court and be able to say: 'Nah, I don't like that outcome, let's try another one...'
No Comment.
At least 2 out of the 3 judges were skeptical of the FCC's arguments, though some of them were also skeptical of some of the claims of hte challengers. I attended the hearings and blogged a play-by-play of the argument.
Umm the EFF is then plantiff in this case along with the ALA.
I am a lawyer - and that's not the way it works. The legal concept of Res Judicata (Litterally - the thing is judged). Prevents parties who are unhappy with the results of a legal suit from refiling the case between the same parties based on facts arising out of the same events. So if they lose in the D.C. Circuit (which, unlike most circuits, has nationwide jurisdiction) they can't just try again in another circuit. They can, of course, apply for an en banc rehearing and after that to the US Supreme Court.
I am a lawyer (although litigation is not my area). The general rule is that standing to bring a case requires more than the generalized injury that all citizens suffer (The thinking goes that congress is charged with addressing that sort of generalized injury). If the courts find that consumer groups (weak - because we are all consumers - thus the injury is generalized) and libraries (stronger) don't have standing, then the most likely plaintiffs will be hardware manufacturers - who can point to added costs. Are there any manufacturers who have voiced opposition to the flag? If not a good plaintiff may be hard to find. Courts have held that in some cases - bascially no one has standing.
Did anyone bother to notice that the article only referred to the oral arguments in the case? This was not a decision. These were only statements and questions from two of the judges sitting on the panel hearing the case.
No government is without corruption. Is there anyone truly immune to an offer of a sufficiently large amount of money?
Satan.
-kgj
-kgj
...neither of which have any redeeming social value...
Businesses will sell anything that someone will buy. The more people are willing to buy a certain product (cigarettes, guns, pornography, drugs etc.) the more businesses there will be trying to sell such items. Even if the Governemt outlaws certain products, (drugs, porn, certain weapons) there will still be some business that will sell these, if people exist who will buy such stuff. All that outlawing an item does in dramatically raise its price making it unaffordable to most. Social value has nothing to do with this unfortunately.
All theory is gray
The market on its own would disagree with you.
Since when did abstract concepts have opinions?
People don't value clean air, water, soil, etc. enough for their purchasing decisions to force polluters out of business, or to even change their production methods.
A clean environment, has NO MARKET VALUE. That does not mean it has no value whatsoever.
It is a myth spread by polluters that that EVERYTHING can be (and would by some magical process, automatically be) reduced to a monetary value. This myth is convenient, because it means that everything is available to those who have the money. (And the biggest polluters have most of they money). Even things which can not be sold or bought become available for cash if this myth is widely accepted.
Can I sell you your clean environment? I don't own it. But if you value it so much, then perhaps you should pay me so that I don't burn toxic chemicals?
Polluters want to be paid for something they dont own. It is quite simply: FRAUD and EXTORTION.
mere criminal acts which even Free Marketers usually look to a government entity to prohibit.
To allow FRAUD and EXTORTION to go unpunished, is to encourage and reward it.
The strongest advocates of a FREE MARKET sit on trillions of dollars of wealth which was originally aquired by acts of violence and military power, at far less than MARKET value, under the guise of divine right/will, manifest destiny or the justification of "spreading justice and civilization".
Now polluters want to be paid lest they will destroy the environment which they dont own.
No one has a right to their *own* opinion. They have a right to the TRUTH.