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| Broadcast Flag Nixed by DC Circuit of the US Ct. of Appeals |
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Friday, May 06 2005 @ 01:10 PM EDT
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Cory Doctorow on BoingBoing has the news and the ruling:
This morning, the DC Circuit of the US Court of Appeals struck down the loathsome Broadcast Flag, ruling that the FCC does not have the jurisdiction to regulate what people do with TV shows after they've received them.
My first day on the job at EFF was at the first meeting where they were negotiating the Broadcast Flag, a set of rules for restricting the features of digital television devices to those that were approved by the Hollywood executives who tried to ban the VCR. The rules set out to ban the use of Open Source/Free Software in digital television applications, and to require hardware components to be designed to be hard or impossible to create open drivers for. Fox exec Andy Setos told me that we were there to create "a polite marketplace" where no one would be allowed to disrupt his business model without getting his permission and cooperation first (cough planned economy cough commies cough).
I'm honored and thrilled to have been part of the gigantic upswelling of public outcry over this naked attempt to bootstrap the studios' limited monopoly over copying movies into an unlimited monopoly over the design of every device that might be used to copy a movie. . . .
"In the seven decades of its existence, the FCC has never before asserted such sweeping authority. Indeed, in the past, the FCC has informed Congress that it lacked any such authority. In our view, nothing has changed to give the FCC the authority it now claims." You can read the entire decision here [PDF]. More over on BoingBoing (scroll down a couple of stories). Here's the Conclusion section, for those who don't like or can't read PDFs:
III. CONCLUSION
The FCC argues that the Commission has “discretion” to exercise “broad authority” over equipment used in connection with radio and wire transmissions, “when the need arises, even if it has not previously regulated in a particular area.” FCC Br. at 17. This is an extraordinary proposition. “The [Commission’s] position in this case amounts to the bare suggestion that it possesses plenary authority to act within a given area simply because Congress has endowed it with some authority to act in that area. We categorically reject that suggestion. Agencies owe their capacity to act to the delegation of authority” from Congress. See Ry. Labor Executives’ Ass’n, 29 F.3d at 670. The FCC, like other federal agencies, “literally has no power to act . . . unless and until Congress confers power upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). In this case, all relevant materials concerning the FCC’s jurisdiction – including the words of the Communications Act of 1934, its legislative history, subsequent legislation, relevant case law, and Commission practice – confirm that the FCC has no authority to regulate consumer electronic devices that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission. Because the Commission exceeded the scope of its delegated authority, we grant the petition for review, and reverse and vacate the Flag Order insofar as it requires demodulator products manufactured on or after July 1, 2005 to recognize and give effect to the broadcast flag. So ordered. Of course, now Hollywood will go to Congress and try to get what they want that way.
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| Authored by: Matt C on Friday, May 06 2005 @ 01:28 PM EDT |
Finally some good news.
Corrections here.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, May 06 2005 @ 01:30 PM EDT |
| The fight's obviously not over, but it's refreshing to see a victory. [ Reply to This | # ]
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- Good day - Authored by: Matt C on Friday, May 06 2005 @ 01:34 PM EDT
- Good day - Authored by: hollowhead on Friday, May 06 2005 @ 01:41 PM EDT
- Good day - Authored by: Anonymous on Friday, May 06 2005 @ 06:29 PM EDT
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| Authored by: Anonymous on Friday, May 06 2005 @ 01:33 PM EDT |
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| Authored by: joef on Friday, May 06 2005 @ 02:04 PM EDT |
The FCC has extraordinary control over most implementations of electronics in
communication. It has become more and more politicized with each change in US
administration. It is also more and more concerned with making the public
resource of broadcast bandwidth into a profit center.
But just as we have concerns over the misappropriation of open source software,
we already see a model which allows private parties to grab a piece of the
commons and treat it as a fiefdom.
The mistake was made in the 1930s when the communications act essentially gave
ownership chunks of spectrum to broadcasters in exchange for "operating in
the public interest." But when was the last time that any of that spectrum
was reclaimed for failure to act in the public interest? There is a periodic
charade (3 years?) when the license is up for renewal, but other than that,
frequency allocations are traded like a commodity.
I'm not sure what the proper business model should be for this activity, but the
one we have sure stinks to high heaven. Perhaps the model needs some
competition at the time of license renewal; maybe it needs an element of a
substantial royalty on advertising revenues (say, 20%?) payable to the US
Treasury. Whatever the solution, we need better than what we have now.
The problem was compounded when the FCC got authority over cable communication,
mostly based on the argument that the cable carriers were simply relaying a
signal that had originated in the public spectrum; ergo, by extension, this area
was fodder for regulation too.
That said, I fear for the result of the process that would occur in the US
Congress when they start generating a "Federal Communications Commission
Reform Act of the 20xx" (known as the
"Hatch-Coble-Warner-Sony-Clearchannel-Fox Act"?) If it ends up like
recent Tax (and other) Reform Acts, it will be a disaster.
[ Reply to This | # ]
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| Authored by: tiger99 on Friday, May 06 2005 @ 02:13 PM EDT |
| "EDWARDS, Circuit Judge: It is axiomatic that
administrative agencies may
issue regulations only pursuant to
authority delegated to them by
Congress." IANAL, but it seems to me that the same should apply to the
USPTO and other agencies who seem to be flouting the law, are out of control, or
are simply not coping with their designated task. Much the same applies in all
civilised countries of course, agencies are only supposed to do what the
respective governments have authorised, but here in the UK the same kind of
problem frequently arises. The Patent Office is only one of several which come
to mind. [ Reply to This | # ]
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| Authored by: iceworm on Friday, May 06 2005 @ 02:17 PM EDT |
This is the crux.
Every computer connected to the Internet is in
fact
transmitting via wire (dial-up, dsl, or cable) or radio
(WiFi, or
wireless). So, clearly, the FCC has power to
regulate what
one communicates.
Any one who has a scanner is probably aware
that it is crippled in that the hardware (receiver) has to
be fixed so
that it cannot receive radio
signals in the cell phone band
of the radio
spectrum. So the FCC can, and has, regulated the hardware
used by consumers in reception of radio waves.
It is clear to me as
an Amateur Radio Operator (KL7FHX)
that this sort of hardware regulation is
doomed in the
long run. For example, much of the radio equipment in the
Amateur Radio Service (receivers,
transmitters, and
tranceivers which are capable
of transmitting and receiving) can be
controlled by a
computer. There are some items which have
only a computer interface. Typically, the
receiver (or
receiver portion in a tranceiver) can receive
radio signals from (as we
Amateurs like to say) DC to
light. This is an exaggeration, of
course, the point
being, the hardware is fixed to block the cell phone
frequency band. I have heard of methods to thwart this
hardware fix for
certain models (Linksys?).
My conclusion is
Freedom wins, but the
battle is now, and it will continue.
What is that saying,
The price of freedom is eternal vigilance?
iceworm
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| Authored by: overshoot on Friday, May 06 2005 @ 02:26 PM EDT |
| Keep in mind that manufacturers who wanted to sell anything after June
2005 had to switch their manufacturing over last year. They're not about to
change back now. They can't afford to.
The reason is that the money is
spent. There's no immediate competitive advantage to be had selling non-BF gear
since the broadcasters aren't slapping the BF on everything they send out (and
they won't for quite a while precisely for purposes of boiling the frog slowly.)
They might as well continue on the current roadmap, especially since there's a
very real legal risk to doing anything else.
The risk comes in two
parts:
- Congress may do with legislation what the FCC couldn't with
regulation
- The DMCA is all the MPAA needs.
To that last point: the
MPAA needed the FCC to change the default assumptions and make the BF the
standard. Prior to that, they would have had a hard time suing manufacturers
for producing gear that ignored the BF when that was the only kind of gear
around.
However, now that all new gear is BF-compliant, they don't
need the regulation any more because the DMCA works just fine. The first
manufacturer to disable the BF will be the target of a DMCA lawsuit, and one of
the first things that the MPAA will do is move for a preliminary injunction to
lock up the "circumvention devices" in the meantime. Keep in mind that they
have already fought this battle and won with regard to DVD player
chips.
Consumer electronics is a low-margin business. Having all of your
new models locked up in a warehouse under seal for years while you bleed legal
fees is not a winning business strategy for a low-margin business. [ Reply to This | # ]
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- Pardon me, but so what? - Authored by: Anonymous on Friday, May 06 2005 @ 02:40 PM EDT
- Pardon me, but so what? - Authored by: dave booth on Friday, May 06 2005 @ 02:41 PM EDT
- Pardon me, but so what? - Authored by: Anonymous on Friday, May 06 2005 @ 02:45 PM EDT
- Not ALL! - Authored by: Anonymous on Friday, May 06 2005 @ 02:52 PM EDT
- Pardon me, but so what? - Authored by: sjf on Friday, May 06 2005 @ 04:13 PM EDT
- Pardon me, but so what? - Authored by: stend on Friday, May 06 2005 @ 04:27 PM EDT
- But How Do We Know? - Authored by: Anonymous on Friday, May 06 2005 @ 05:42 PM EDT
- Pardon me, but - - here's one - Authored by: Anonymous on Friday, May 06 2005 @ 07:24 PM EDT
- ATSC - not DVB - Authored by: Anonymous on Saturday, May 07 2005 @ 09:32 PM EDT
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| Authored by: MplsBrian on Friday, May 06 2005 @ 02:43 PM EDT |
Of course, now Hollywood will go to Congress and try to get what
they want that way.
After which it will go to the courts, who just
may have enough sense to nullify the flag again.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, May 06 2005 @ 02:56 PM EDT |
Obviously, this isn't over. But this is great news. I haven't RTFJed the
complete decision, yet, but the conclusion minces no words. [ Reply to This | # ]
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| Authored by: Nick Bridge on Friday, May 06 2005 @ 04:17 PM EDT |
| Awesome! [ Reply to This | # ]
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| Authored by: Anonymous on Friday, May 06 2005 @ 06:50 PM EDT |
IBM have filed unsealed versions of some previous documents in the case.
IBM-442 is the unsealed version of the memo that they had filed in opposition to
SCO's motion to compel deposition of Sam Palmisano.
Leaving aside the merits of IBM's arguments, it has some dynamite stuff about
SCO's conduct, including:
(1) Accusing SCO of attempting to use deposition of Sam Palmisano and other
discovery issues, to disrupt IBM's business
(2) Questioning SCO's assertion of "good faith" in filing the motion
(3) Accusing SCO of violating the protective order on at least three occassions,
including in filing IBM-375 (SCO's motion to depose Sam Palmisano)....
[I have previous wondered about this myself, since we have the PDF of 375, but
the court docket marks it as sealed]
- see footnpte 8
(4) Raises some questions about SCO's possible trickery in serving IBM a copy of
the Sam Palmisano motion
- also in footnote 8
Quatermass
IANAL IMHO etc[ Reply to This | # ]
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| Authored by: dmac on Saturday, May 07 2005 @ 03:50 PM EDT |
I read that the monopolists are already lobbying hard in congress to get
legislation passed that will either enable the fcc to do this little flag trick,
or just bypass the fcc completely and legislate technology limits themselves.
What a joke.
The IP lawyers, I've heard, are the best paid specialty in the legal business.
With all this cash on the line it's hard to tell where it will end up. Perhaps
by the Supreme Court telling congress they can't legislate technology. We can
only hope. But, if GWB gets his 30 or so federal judges and maybe even one or
two supremes past the democrats the courts may even end up buying into the
monopolist's camp eventually.
Boys and Girls, big money talks in Washington and the money doesn't get too much
bigger than than the entertainment business. In my opinion, all monopolists are
a bunch of thugs, attempting to hijack the rest of us with with the
legal/regulatory system[ Reply to This | # ]
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| Authored by: PeteS on Sunday, May 08 2005 @ 06:21 AM EDT |
| ...confirm that the FCC has no authority to regulate consumer electronic
devices that can be used for receipt of wire or radio communication when those
devices are not engaged in the process of radio or wire
transmission.
I hold an old (1985) FCC General
RadioTelephone license, which at the time was required to ...adjust
any transmitter in the United States...
[PG-5-12163, for the
curious]
Although the FCC has broad authority to regulate transmissions, for
very good technical reasons, although those have become politicised over time,
they don't have the same broad authority in regard to receivers, which the
opinion makes very clear.
I am aware the FCC managed to mandate the
V-Chip, but although they managed to get this through on dubious grounds
(to me anyway), it must be noted that complete control over the functionality of
the device rests with the consumer.
The Broadcast Flag, on the other
hand, wrests control away from the consumer, where the FCC has virtually no
authority, for it amounts to censorship, and the First Amendment has much to say
on that subject.
The Court is telling the FCC in no uncertain terms that
their authority as given in Acts of Congress, relate to transmitters, not
receivers.
PeteS
---
Artificial Intelligence is no match for
Natural Stupidity [ Reply to This | # ]
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