March 24, 2004

Cites & Insights - special "Broadcast Flag" edition

Walt Crawford has a special "Broadcast Flag" edition of his library 'zine (not blog) "Cites & Insights":

On November 4, 2003, the Federal Communications Commission (FCC) adopted a Report and Order and Further Notice of Proposed Rulemaking in the Matter of: Digital Broadcast Content Protection, MB Docket 02230. In English, the FCC adopted the Broadcast Flag. You can find the lengthy report (72 pages single-spaced, plus four appendices) on the web. This commentary may be long but it's far from comprehensive--and certainly not final, since the rulemaking is only a first step. My aim here is to provide a reasonable sampling of background, direct documents, and apparent consequences--and to give you some reason to believe that librarians, and those concerned with the future of digital technology in the U.S., should be concerned about the Broadcast Flag and its implications.

All worth reading, and recommended. I've not been much involved in that battle, though I've mentioned some "Broadcast Flag" strategies.

I do have one note of commentary (emphasis mine):

Paragraph 41 is also interesting as it cites limits within DMCA: nothing in this section shall require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the provisions... In other words, DMCA doesn't require new technological measures. Does that call into question the FCC's ability to impose such measures? Not according to the FCC: They limit the significance of the emphasized section to one subsection of DMCA, and deem it as not in any way limiting the FCC from imposing such requirements.

Well, sadly, basically, the FCC is right on this point (in my nonlawyer but DMCA studied view). The DMCA does not require a broadcast flag. But there's no pre-emption or affirmative limit there. That is, even though the DMCA doesn't mandate it, some other law or regulation could give the FCC the power to impose this, and that would not be a conflict. That's what the FCC is saying.

The FCC's claim to have authority over equipment-makers strikes me as broad, but there might actually be some precedent for it. But even if so, it would be on a very different basis from the DMCA.

By Seth Finkelstein | posted in copyblight , dmca | on March 24, 2004 08:36 AM (Infothought permalink)
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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OK, this is getting strange:

I did the special issue because I thought the flag was being ignored, and because there was no way I could do a regular issue.

I figured it would go largely ignored.

But it's being mentioned in weblogs that uniformly ignore my stuff...

(I won't have any idea of readership for a while, for a couple of reasons...)

For me, the lesson is probably that I shouldn't assume that something I find worth discussing won't matter to other people...a dangerous lesson!

I don't disagree with your take on P.41. That's why I raised it as a question rather than as an assertion that the FCC was out of bounds.

This will all be interesting to watch, particularly since it really is Step 2 in the multistep process to shut down general-purpose personal computing (by effect, if not necessarily by intent), where Step 1 was DMCA and Step 3 is the "closing the analog hole" set of initiatives. Step 3 should be ludicrous--but "anything not explicitly permitted is forbidden" is, unfortunately, a real-world working principle.

Posted by: Walt Crawford at March 29, 2004 02:00 PM