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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!
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
The broadcast flag may be dead... ... but the repeat flag is still living strong!
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]
**WHISTLE**
Offensive foul!
Overused refrence to played out movie!
5 karma point penalty!
First down!
Pretty Pictures!
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.
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?
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
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.
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.
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.
...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.
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.
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.