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FCC Broadcast Flag Struck Down
An anonymous reader writes "CNet is reporting that the courts have struck down the FCC's broadcast flag requirement! 'In a stunning victory for hardware makers and television buffs, a federal appeals court has tossed out government rules that would have outlawed many digital TV receivers and tuner cards starting July 1.'" The EFF has details on the flag, the official ruling is online for examination, and commentary is available from BoingBoing and Ars Technica.
It's about time the courts are on our side for something like this. Now if they can just do something about all the other idiots wanting DRM everywhere...
The onus is on the industry to find a solution within technology and capitalism, not within politics and law.
"I have never won a debate with an ignorant person." -Ali ibn Abi Talib
So it's nice that this lost, but it lost because the court said the FCC has no jurisdiction. This wasn't a victory for fair use, nor is it the end of the discussion. The MPAA will return to hammering Congress to either make the rule itself or grant the FCC the authority to do so (which the article clearly states at the end). This just gives us more time to get the word out about why the flag is a bad idea.
Since the entire American government is owned by corporate interests, it'll take about 5 minutes for this to get passed by Congress.
I'd hope that the consumer electronics lobby is stronger than the MPAA, but I fear it isn't so.
jh
And it never will be until the slimeballs behind this (movie industry) get what they want. They are willing to pay more and wield more influence than the electronics makers. Watch for some legislation to be bought soon.
Do you have ESP?
p2p distribution of video over the Internet is the future. The airwaves are being wasted on obsolete technology. We should figure out what the TV spectrum would best be used for (wireless Internet? Cell Phones?) and then dismantle the whole shebang. Would this exceed the FCC's authority? Maybe. But it would be smart. The "broadcast flag" was dumb.
What's more, they won't take the risk. Now that the BC has become a "standard" feature, building anything without it is almost certain to be attacked by the MPAA under the DMCA.
If you have a BC-free tuner card, treasure it. They ain't making no more, ever again.
Lacking <sarcasm> tags,
So long as the following tweaks to the system are not implemented Congress will be able to ignore the wishes of the people and grant any and all favors to their lobbyists.
No representative or senator should ever be allowed to vote on any piece of legislation which they personally have not read
Any vote on anything that involves de facto laws, rules, regulations or monetary impact of any kind must be by roll call vote
The name of the legislator who introduced or modified each line of text in each and every bill must be fully disclosed
The 17th amendment must be repealed
If the g'vt kept the data on you that google does you'd better believe you'd be calling it "doing evil"
The courts struck down the broadcast flag because the FCC was getting too big for their britches. They got all up in there, and the Judge was like "no you didn't." Judges do that a lot--watch Judge Mathis to see what I mean.
The courts didn't say that the broadcast flag was illegal because it interfered with fair use rights. While the effects of this ruling are to encourage consumer rights, that hardly seems to be the intent of the judgement. The fact is, the FCC was never supposed to make these kinds of rules--and someone finally called their bluff.
Ermmm, these judges actually took a "strict constructionist" approach. Congress didn't give the Executive Branch the authority to regulate, so the Court properly slapped the FCC down.
Ain't nothin' "activist" about this.
You can be unhappy with the way your fellow citizens vote, but corporations aren't electing these people into Congress. Other people in your community are. If you don't like that, don't sit on your beanbag and complain about how corporations are destroying the country. Go out and tell people why they should vote the way that you want them to. Money is just a megaphone. If you're spouting garbage, it will just make the garbage stinkier.
It's funny how the things that are beyond our control are the things that we'd otherwise have to get off our buns and do something about.
as citizens. We have more power with congress then the FCC.
AS always write, fax, email. Maintaining freedom takes regular work, few hours per week.
The Kruger Dunning explains most post on
That's how I feel after donating to the EEF last year and this happening now. Looks like I'll be sending them another cheque this year
Good work folks! Now, let's make sure this never sees the light of day in any of the law-making branches of the legislature!
Just one word comes to mind: hubris
I seem to recall the joyous triumphant shouts of victory when Poland objected to the software patent law in the EU. Dead they said back then. And then what happened? They stuck a fish head on it and got it moving again through a fisheries council.
Hubris. What can't be done through the FCC can be done through other backdoor legislation. Like attaching the legislation to a spending bill, like ANWR is going to be opened up. And if that fails, there is always the tried and true method of treaties, where even the US Constitution can be changed instead of going through the much more difficult other methods of an amendment passed by 3/4 of the states or during a constitutional convention.
The entertainment cartel has been at this too long, has too much invested in outlawing the VCRs of tomorrow, has too much to lose for them to give up this fight.
Plug a leak and the water just comes out of a different hole. There are many ways to skin a cat and the entertainment cartel owns all the knives.
Hubris.
In effect the xxAAs are trying to rope the FCC into making all broadcasting a synchonous pay-for-view service without any recourse for pay-per-view-later (that would kill ALL recording, nevermind TIVO)
They are essentially trying to rewind the calendar to before they xxAAs lost the 'fair use' trials against those pesky player pianos. (And radio and TV and restaurant juke boxes and sheet music.)
They are against anything that makes a noise and they aren't getting paid. And fair use doesn't enter into their vocabulaty.
MSBPodcast.com The opinions expressed here are my own. If you don't like 'em... Think up your own stuff.
Just imagine the chaos that would result if television/radio transmissions were regulated at the state level.
Maybe you would send one delegate from each state to the ITU.
Or better yet, let each individual decide on what frequencies and how much power they will transmit.
"We can't solve problems by using the same kind of thinking we used when we created them." -- Albert Einstein
. . .it doesn't need constitutional authority.
."
Every legal authority needs constitutional authority. It is the law of the land and the only source of federal authority.
Agencies created by Congress to have legal authority by beaureaucratic code writing are Congress's attempt to bypass those parts of the Constitution that say "Congress shall pass no law. .
The courts are saying that Congress doesn't have the authority to do that. If they wish federal law, they need to pass it through Congress. Which is both, good, proper and about time.
KFG
Check the United States Constitution, wherein all executive power is vested in the President. Like it or not, all executive power is vested in the Oval Office. If the president wasn't ultimately responsible for the actions of the FCC, the FCC would have no authority whatsoever.
You could just as easily say that the powers of the United States Treasury are delegated to it by the Treasury Act. That doesn't mean the Secret Service is a Congressional authority.
Elected legislators like to avoid responsibility for hard decisions.
In addition to the broadcast flag, politicians would like to avoid responsibility for voting for or against abortion or gay marriage, so they hide in the weeds and let unelected judges or bureaucrats take the heat.
Laws are often written in a vague enough way that responsibility for unpopular consequences can be dumped onto the bureaucrasy and sorted out by the judiciary.
If elected officials abdicate their responsibility, a tyranny of the judiciary or of the bureaucrasy is possible.
The bad thing about this broadcast flag matter is that neither the villains in the bureaucrasy nor the heroes in the judiciary were elected officials directly accountable to the electorate.
I suppose the ACLU had its place back in the day, but I much prefer the Unix-style "each tool does one thing" approach of the EFF and NRA.
I am a
...VOLUNTARY compliance? The other issue here is that the FCC lacks the authority to MANDATE that all equipment comply. This in no way prohibits manufacturers from complying. More to the point, it doesn't take away the MPAA's ability to lean on harware manufacturers and ask them to comply even without a legal mandate that they must.
Why on earth should they comply? Well, interoperability for starters--remember CSS? It would be perfectly legal for the MPAA to threaten to cut off the ability to license whatever future DRM-ing "software" they invent to vendors who aren't compliant with some standard of "partner in the fight against piracy", and considering "do you make equipment that doesn't respect the broadcast flag?" as a big black mark against a vendor....
Also, most harware makers have been designing under the assumption that the broadcast flag would be implemented. Would it make sense to rejigger their hardware at this stage, knowing the requirement may go back in? Or would manufacturers cover their ass by leaving this in "voluntarily" until the legal challenges settle down? I'd guess the latter...
Sure, the law allows for a vendor to legally NOT implement the broadcast flag, but the vast majority of manufacturers will probably implement it anyways. Sure, the people wanting to crack protection can get useable cards. But unless there's a true outcry from consumers, and a significant CREDIBLE alternative to the major manufacturers who own so much space in the major distributors, I really question whether this will make much difference.
Most people don't care enough to buy off-brand parts that don't respect the broadast flag over a Sony box that does.
Fast forward 2 years into voluntary compliance. Now the issue before Congress is "the overwhelming majority of people already have this feature, so it doesn't hurt much to make it mandatory for everyone." This is basically the same argument they're using right now to take away non-digital television.
Oh, yeah. Right!
Just like the FDA is an independent agency. The last time I checked, it was the Executive Branch that selected appointees to the management positions. And considering the current "rubber stamp" state of the Congress, the only truly "independent" division of government is the Judicial Branch, and that is quickly eroding into yet another "political plum" for the current regime in power.
At the current rate of Executive Branch dominance over all branches of the US government, by the time 2008 rolls around, national elections could get cancelled (like the FEC's "trial balloon" in 2004), and the USA will have King George I, and a very British looking (albeit more subserviant) Parliment to contend with.
I wouldn't speak so quickly. A lot of these so-called "couch potatoes" for recording rights are "gun nuts" for 2nd Amendment rights as well.
It doesn't take too much athletic ability to point and shoot.
Buy more. Now that everybody else is selling their cards, buy more, cheaper. Next week, when the Congress passes a similar law, sell!
Let me sum this up in four easy, complete, steps:
1) Buy low
2) Congress passes law
3) Sell high
4) Profit!
I'm tired of all the /.'ers who think this is insignificant. The fact is that these judges said that this would infringe on a consumers ability to time-shift HDTV.
Don't be stupid and talk about DRM on DVDs because this isn't the same. I can watch a DVD over and over but with this flag I wouldn't be able to record 'Lost' and watch it later.
You may think that the average american, namely my father who was born in 1945 (yes, he's 59), wouldn't care about copying a DVD and you're right - he doesn't. But he sure as hell won't let anyone mess with his time-shifting ability, via TiVo (which he doesn't have but wants) or a VCR.
And when HDTV drops a little more he will get it and if he can't control it 100% like he wants he'll sick the AARP on them. And old people actually write their congressmen and complain until things get done.
"Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?" - Patrick Henry
I believe the Broadcast flag would have killed HDTV adoption in the US; If my brother-in-law couldn't record his NASCAR to watch after work, what good would HDTV do him?
HDTV equipment couldn't be made in the US for export, because no other country would want broadcast flag equipped products, ensuring the ongoing death of manufacturing in America.
It would raise the cost of, and decrease the desirability of better HDTV, increasing the time until we can turn off the old signals.
The airwaves belong to the Public, and private interests should not be allowed to run rampant over the limited useful spectrum, all of the FCC's decisions should have a statement explaining exactly how it is expected to benifit the public, with respect to the spectrum used; just as with the EPA and Environmental Impact statements.
private encrypted tranmissions have a place (cell phones, military, wireless networking), and it other areas a balance can be struck (TV networks using satillites to send shows to affiliates should be protected) but government angencies should not profit from, or pander to business interests. (except from taxing their profits)
Why?
* They're as owned by special interests as the Republicans. The bankruptacy bill? Everyone voted for it, even very liberal, Hero Of The People Democrats. I mean, SCHUMER voted for that turd, and dude really wants to be a liberal working-class savior. That's insane behavior.
* They are becoming Republican Lite. Look at Hillary. She's starting to get awful cozy with the right-to-lifers. The goal of the Dems is to actually become ok with the Fundies. And that is totally insane, because it can never happen.
They need to grow a spine, start leading, and actually stand up for something. Sure, they may take some hits for a while, but the tide will turn. Kerry lost because he was a flip-flopper, much as I hated the Republicans using the stupid term.
I mean, isn't a defintion of insanity to perform the same acts and behavior over and over again, and believe that there will be a new outcome?
jh