Did The FCC Go Out Of Bounds In Setting Up The Broadcast Flag?

from the fighting-back-while-it's-still-possible dept

While a number of organizations have been very vocal about their opposition to the broadcast flag, it seemed likely that things would have to wait before any lawsuits came about. However, a group of those who have been fighting to stop the broadcast flag from going into effect and taking away fair use rights from users, has now claimed to the US Appeals Court that the FCC acted without authority in setting up the Broadcast Flag. The argument is that the FCC has the mandate to regulate our airwaves, but not what people can do with content once it’s left the airwaves and reached their televisions (or other consumer electronics products). It’s an interesting legal argument, but with so many people believing that (for some unclear reason) the entertainment industry needs extra protection and can’t figure out its own business models, it may be a tough case to win.

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Comments on “Did The FCC Go Out Of Bounds In Setting Up The Broadcast Flag?”

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Steve Mueller (user link) says:

More Clueless EFF and ALA Comments

While I appreciate the general goals of the EFF and the ALA, it seems that much of their agenda is clueless. Consider these issues.

The brief argues that the FCC has no authority to regulate digital TV sets and other digital devices unless specifically instructed to do so by Congress. While the FCC does have jurisdiction over TV transmissions, transmissions are not at issue here. The broadcast flag limits the way digital material can be used after the broadcast has already been received.

By that logic, cable and satellite descramblers would be legal. The signal has reached my set, so why shouldn’t I be able to manipulate it like I want?

You could also argue that the V-Chip should be outlawed, too, because it limits usage after content has reached the set (although the ability to protect children may make it worthwhile).

Perhaps the EFF will say that Congress authorized those, but does anybody believe the EFF wouldn’t fight Congress if they were creating legislation for a broadcast flag? The EFF is simply using a procedural argument as a delaying tactic.

ALA legislative counsel Miriam M. Nisbet said, “Two years ago Congress passed a law allowing for use of copyrighted works for distance education. Yet now the FCC through the broadcast flag would prevent schools from using an entire category of those works — high definition television programs — in distance education.”

The assertion that the FCC is preventing schools from using anything is ridiculous. I doubt that FCC will require the use of a specific broadcast flag; it will be the content owners or broadcasters who choose what level of rights to confer, not the FCC. You’d think somebody involved in the area of education would be more intellectually honest.

Don’t get me wrong; I’m not in favor of the broadcast flag. I timeshift a lot of shows on my Replay TVs and would hate to be prevented from doing that with future devices. I just hate the way the EFF and ALA go about things at times.

Anonymous Coward says:

Re: More Clueless EFF and ALA Comments

I think you’re right in some ways in terms of this just being a delaying tactic, but also the EFF/ALA has a good point. The FCC should have a very limited authority in terms of creating rules, because they are not elected officials. They should not have the authority to create laws that everyday citizens have to follow. We have congress to do that. The FCC is supposedly around to protect the public interests with regards to communication technologies. They’re not supposed to limit our rights in order to help businesses.
Now, in some cases, our rights may legitimiated be limited for sound reasons (e.g., your cable descrambler example). But letting the FCC declare those laws is allowing them too much power. Such rules must go through the proper channels of government to become valid laws.
A lot of the technicalities and procedures in the world of law are in place to protect us from people abusing their given powers. Although it often seems like nitpicking, lawyers have an obligation to uphold and challenge those technicalities.
But yeah, if this gets struck down, eventually the congress peoples will get around to make it a real law, so in the end, the EFF is only buying time.

DV Henkel-Wallace says:

Re: More Clueless EFF and ALA Comments

Actually, until quite recently it was the case that if someone sent it into your house you were welcome to listen. In fact encrypted (i.e. “scrambled”) transmissions were not permitted. Congress, not the FCC, changed those rules. So the EFF’s assertions stand on quite reasonable legal grounds.

The library case is different, but not largely so. Although the quote you use is dumb (for the spokesperson to have made I mean) the core of the argument is thus: right now libraries have an absolute right to archive and lend out material. This was challenged almost a century ago and found by the court to be an absolute right: not something that the publisher may restrict. The new FCC rules, if upheld, will change this.

Steve Mueller (user link) says:

Re: Re: More Clueless EFF and ALA Comments

I think you mean it may change things. Nobody knows what content owners or broadcasters will do (although I’m sure we can guess pretty well).

The question is, do many libraries record video broadcasts and then loan those tapes out? If they do, that almost sounds like piracy. Buying a video and loaning it out is one thing; recording it off the air and loaning it out is another, especially as you can make as many copies as you want (without having to fight with copy protection).

Anonymous Coward says:

Re: More Clueless EFF and ALA Comments

The broadcasters don’t have the power on their own
to prevent schools from using the works in question. So, while the broadcasters may “choose what level of rights to confer”, the FCC will certainly be involved in enforcing the broadcasters wishes and preventing certain uses.

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