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The broadcast flag is defeated - for now
LWN covered the broadcast flag
rule in November, 2003. This rule, adopted by the U.S. Federal
Communications Commission, mandated that digital television systems
implement and honor a flag, embedded within the TV signal, which would
forbid copying or further redistribution of the content. This rule, in
effect, forbids the creation of free television demodulator systems. No
source-available system could implement the broadcast flag in a way which
meets the "robustness rules" set out by the regulation.
The DC Circuit Federal Court of Appeals made short work of this rule; the full ruling is available in PDF format. The decision is clear and narrow:
We can find nothing in the statute, its legislative history, the
applicable case law, or agency practice indicating that Congress
meant to provide the sweeping authority the FCC now claims over
receiver apparatus.
Thus, the broadcast flag is dead, because the FCC has no authority to make that particular regulation. The court offers no opinion on whether the concept of a broadcast flag is defensible or not - it was not asked to consider that issue. All that has been decided is that the FCC has no authority to give the entertainment industry veto power over our gadgets. For the time being, digital TV systems implemented with free software are legal. The next move in this game is obvious: the entertainment industry will go to Congress seeking a law which either (1) gives the FCC the authority to regulate devices which are not actually transmitting or receiving signals, or (2) implements the broadcast flag requirement directly. Cory Doctorow has claimed that the industry will not succeed in this goal:
The next move here is that the studios will take this to Congress
and try to get a law passed to make this happen. No chance. They
got ZERO laws passed last year. This year the best they've been
able to accomplish is making it slightly more illegal to videotape
movies in the theatre.
The fact is, elected lawmakers are not suicidal enough to break their constituents' televisions. Watch and see: over the next year, we're all going to roast any lawmaker who so much as breathes the words "Broadcast Flag" in a favorable tone. This view is probably overly optimistic. Experience says that the purveyors of ideas like the broadcast flag never give up; they bring their proposals to Congress over and over until the opposition has, finally, been worn down. The broadcast flag may well be defeated next year, but it will be back the year after that. Until elected representatives (and the wider world) understand why things like broadcast flags are such a bad idea, we will have to keep fighting this battle. (Log in to post comments)
It will never come to pass Posted May 12, 2005 14:53 UTC (Thu) by felixfix (subscriber, #242) [Link] The great unwashed masses can only be pushed so far. They ignored DivX like the trash it was; they simply could not be convinced of the need to pay $100 more for a DVD player whose only attraction was playing DVDs that would self-destruct, and video shop owners saw no benefit in selling DVDs which made it easy for customers to not come back.
If the entertainment industry did buy a broadcast flag law, there would be a revolt. People would take VCRs and DVD recorders back to the stores they bought them from and flood the 1-800 help lines with complaints. It wouldn't take a lot; if even 1% of the population complained, the companies could not handle it, the flood of returned purchases would swamp stores, and the angry people who felt betrayed in the first place would not be any happier with the long lines and excuses.
The entertainment industry may well try to buy some other laws, but not the broadcast flag. The electronics industry and rental chains would not put up with it, and the entertainment industry doesn't want to give them any excuse to start a rebellion which might extend to other matters just out of general pissed-offedness.
It will never come to pass Posted May 13, 2005 0:31 UTC (Fri) by giraffedata (subscriber, #1954) [Link] The masses wouldn't be pushed much further than they've already gone without much of a fuss. The Macrovision mandate of 1999 (requires US VCRs not to copy copy-protected VHS tapes) was barely noticed by the VCR-owning masses. DVD players also have DVD-to-DVD high-res copy protection, and the masses accept it. The truth is, hardly anybody wants to redistribute high-quality broadcast material, so you wouldn't see but a trickle of people returning their DVD recorders and calling help lines. (VCRs wouldn't be affected). Another group of people who would be hurt by the broadcast flag is folks who want to build an open source digital TV receiver. Those are pretty few as well. Probably not enough to start a revolt. I guess it's not LWN's job to cover the pro-broadcast-flag position, but it's worth noting that the party that lost this appeal was the FCC. A commission of persons with no financial interest in the entertainment industry, and appointed by officials who were elected by the people to serve the people, said it was in the public's best interest to have a broadcast flag. And here's why: If the entertainment industry would switch to digital broadcast, it could free up some of the public's precious radio spectrum. The industry says it won't switch all programming until there's a broadcast flag. It's a credible threat: DVD technology was ready 3 years before the first movies came out. Why? Because it took that long to work out the movie studios' concerns about the copyability of DVD. If you believe the entertainment industry can buy the broadcast flag, in spite of the public interest, I'd like to know the mechanics of the transaction. Is it actual bribery of members of Congress? Or can expensive enough lobbyists brainwash them and prevent them from seeing its disadvantages?
It will never come to pass Posted May 14, 2005 1:24 UTC (Sat) by lilo (guest, #661) [Link] giraffedata wrote:If you believe the entertainment industry can buy the broadcast flag, in spite of the public interest, I'd like to know the mechanics of the transaction. Is it actual bribery of members of Congress? Or can expensive enough lobbyists brainwash them and prevent them from seeing its disadvantages?The entertainment industry doesn't have to brainwash members of Congress in order to get what it wants. It donates money to re-election campaigns. Running for office is expensive, even if you're the incumbent. Lobbyists capitalize on this need for funding by presenting a well-researched, plausible, one-sided view of an issue. Do legislators really think the legislation they're handed is good for the public? Some are convinced, some aren't. But they all know that it will look reasonable to the public and that their support for it will earn them the campaign contributions they need.
It will never come to pass Posted May 15, 2005 21:38 UTC (Sun) by giraffedata (subscriber, #1954) [Link] OK, but lets remember that it's against US law for a corporation to donate to an election campaign for Congress or President.So we're either talking about illicit activity (basic bribery, actually) or donations of money to political causes at most loosely tied to a particular legislative decision maker. (For example, Disney contributes to the Republican and Democratic Parties, and the parties contribute to individual campaigns, but Disney cannot legally direct the money). All in all, while it's obvious that by spending money, Disney increases its chance of getting laws that favor Disney, the transaction doesn't look like a solid enough exchange to be called a purchase.
build it and they will come Posted May 19, 2005 16:17 UTC (Thu) by pdundas (subscriber, #15203) [Link] "The industry says it won't switch all programming until there's a broadcast flag. It's a credible threat: DVD technology was ready 3 years before the first movies came out. Why? Because it took that long to work out the movie studios' concerns about the copyability of DVD."
That is one argument, but here's why it's wrong.
DVD only offered incremental improvements over video. High-definition TV is radically different.
When consumers have HDTVs, they'll not want low definition movies to buy or rent. There will be a huge market, which content suppliers won't want to ignore.
It's just a matter of who blinks first - the consumer advocates and legislators, or the content providers.
At the end of the day, broadcast flags and the like only make it more difficult to copy video - not impossible. There WILL be copies, whatever technology is used. The "we have to stop piracy" argument is partly bogus.
The studios won't for long be able to resist the lure of selling their content ALL OVER AGAIN to punters - especially when HDTV makes the low definition market dry up.
*Limited* copying by consumers is a cost of doing business, and *large scale* copying by pirates will continue to be a law enforcement matter. The sky will not collapse! We just need to call the studios' bluff!
build it and they will come Posted May 20, 2005 2:31 UTC (Fri) by giraffedata (subscriber, #1954) [Link] DVD only offered incremental improvements over [VHS]. High-definition TV is radically different. I'm not following you at all. First, it seems to me that VHS->DVD is exactly analogous to NTSC->HDTV. They're both nothing more than an improvement in picture and sound quality. They both require new equipment. How is NTSC->HDTV more radical? When consumers have HDTVs, they'll not want low definition movies to buy or rent.Where does buying and renting come into it? The broadcast flag is about broadcasting. Do you mean to say people won't watch NTSC broadcasts once they own an HDTV receiver? At the end of the day, broadcast flags and the like only make it more difficult to copy video - not impossible. There WILL be copies The volumes are important. I'll bet there will be one thousand times more copies of broadcasts made now that one can get a machine at Circuit City to do it than if one had to use an illicit box. Just as there would be 1000 times more copies of commercial DVDs if a DVD recorder from Circuit City would do it. Based on history, I tend to believe even at 1000x the amount of copying will be insignificant, especially if the content owners make legal copies easily available. But if the broadcasters don't agree -- and they never have in the past -- they just might refuse to broadcast in HDTV.
Time to be Proactive Posted May 14, 2005 1:10 UTC (Sat) by lilo (guest, #661) [Link] It occurs to me that, as a community, we've been concentrating very heavily on defensive strategies. That's understandable; we've had a lot to defend ourselves against.But isn't it time for us to figure out what we want and start pressing more active agendas in Australia, the EU, the United States, and so on? We'd better start working on setting the rules if we don't want to end up following a set we're none too pleased with. Rob Levin Houston, TX
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