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EFF Suing The FCC Over Broadcast Flag 50

Posted by timothy from the your-access-is-blocked dept.
Tamor writes "According to this press release the EFF with 'five library associations, Public Knowledge, the Consumer Federation of America, and the Consumers Union' is suing the FCC over its decision to mandate the broadcast flag." Reader MImeKillEr explains "The lawsuit is charging that the FCC exceeded its jurisdiction, acted in an arbitrary and capricious manner, and failed to point to substantial evidence in adopting a broadcast flag mandate. The FCC has asked the court to put the lawsuit on hold, pending the FCC's decision on petitions to reconsider the broadcast flag mandate, although all of the petitions address unrelated matters. The coalition of organizations opposed in court the FCC's attempt to postpone the lawsuit."
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EFF Suing The FCC Over Broadcast Flag More

EFF Suing The FCC Over Broadcast Flag

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  • Timeshifting (Score:3, Interesting)

    by kathgar1 ( 730100 ) on Wednesday March 10, 2004 @11:18AM (#8521096) Journal
    IANAL(I know, it's shocking! Someone on slashdot that isn't a lawyer!) but wasn't timeshifting deemed fair-use by the courts? Thus doesn't the broadcast flag impair the viewer's fair-use rights? (I didn't read the brief, I'm not a masochist.)

    • Re:Timeshifting (Score:4, Informative)

      by rusty0101 ( 565565 ) on Wednesday March 10, 2004 @11:24AM (#8521145) Homepage Journal
      Actually, there is no "brief", it's a press release, which was pretty fairly summarized by the summary. (odd that, can't say it's been noted as happening fairly often.)

      "Fair Use" is one of the things that has been identified as being adversly affected by the FCC decision.

    • Re:Timeshifting (Score:5, Informative)

      by Jerf ( 17166 ) on Wednesday March 10, 2004 @03:05PM (#8523589) Journal
      "Fair use" is a technical term, and "timeshifting" is not now and never has been "fair use".

      The courts did rule in Sony v. Universal City Studios (1984) that use of VCRs is primarily for time-shifting, and that such use does not harm the value of the work to the copyright holder, thus the courts refused to ban VCRs. However, there has never been any ruling, implied or otherwise, that copyright holders are obligated to assist us in our fair use, or prohibited from engaging in other technological measures to prevent us from engaging in activities that might be defended as "fair use".

      Slashdot in general has a very, very, very unbelievably wrong idea of what "fair use" is, to the point that it has virtually no connection with what the legal concept actually is. Fair use is a very narrow allowance to use small portions of copyright works subject to severe limitations [cetus.org], no more. There is no such thing as a "fair use" right in law. (Which isn't to say there shouldn't be one; I do in fact argue that something like it should be protected [jerf.org]. But that doesn't make it magically appear in the real law we have now.) As a result, the flag can not infringe on our non-existant "fair use right".

      The reason why I continue to post this point, despite continued evidence that Slashdot as a whole refuses to understand this, is that the misunderstanding is dangerous. Thinking you are protected legally means you won't do anything to protect a "right" you think is safe. It's not. Fair use doesn't do shit for you unless you fit into the narrow provisions as described in the link above, and Slashdot as a whole needs to stop thinking otherwise or we will continue to have our "fair use rights" "stripped" from us, with no coherent protest.

      • Re:Timeshifting (Score:1, Offtopic)

        by /dev/trash ( 182850 )
        Someone mod this up. This needs to be placed in every article that deals with piracy and the like. Fair Use is NOT copying your cd and sharing it. Fair Use is quoting a passage from a book and using it in your book review.

      • As a result, the flag can not infringe on our non-existant "fair use right".

        That's true for your standard time-shifting, but what about schools, teachers, and students? Certain educational use is considered fair-use, and the broadcast flag does prevent them from being able to exercise their rights, as per fair-use.

        However, there has never been any ruling, implied or otherwise, that copyright holders are obligated to assist us in our fair use, or prohibited from engaging in other technological measures t

      • Re:Timeshifting (Score:5, Informative)

        by Alsee ( 515537 ) on Thursday March 11, 2004 @08:54AM (#8530713) Homepage
        (Oops, the last half of my post turned into a rant, chuckle.You are absolutely right that copyright holders are not obliged to assist fair use. Much of the rest of your post is dead wrong however.

        What fair use applies what it does mean is that you are completely immune to all copyright law rules and restrictions. Someone selling you a product can certainly make make fair use inconvient, but that's all they can do. I can sell you a song etched into a solid diamond disk, that would certainly make it a challenge to snap that disk in half, but you still have every right to do so. If you make the effort to work around their obstacles and make fair use anyway then they don't have any copy rights to call on. You are immune to copyright.

        When you make fair use anyway they have no right to do squat.

        Fair use is a very narrow allowance to use small portions of copyright works subject to severe limitations, no more.

        Completely false.

        The Supreme Court in Sony v. Universal City Studios (1984) clearly held that timeshifting was not an infringment of copy rights. Timeshifting a movie blatantly involves the copying of an ENTIRE work. "Small portion" is merely one one indicaton of fair use.

        It is also usually fair use for a teacher or student to make multiple copies of an entire work for classroom/educational use. It is usually fair use to copy an entire work as part of a research project. It is usually fair use to copy an entire work for virtually any personal use at all. There are numerous other examples where copying is fair use, even some cases where it is fair use to do so while selling products for profit. [wikipedia.org]

        There is no such thing as a "fair use" right in law.

        It was acknowledged in copyright law in 1976, but it existed before that. If you check the court history of fair use you'll see that many of the limiations on copy rights were mapped out by the supreme court on 1st amendment grounds long before 1976.

        The litteral text of copyright law violated the constition in a dozen ways or so. Normally when a law comes into conflict with the 1st amendment or any other part of the constituion that law is struck as null and void. Rather than striking copyright law outright the court decided to bend over backwards and "pretend" that copyright law never actually attemped to apply in that case, that the law doesn't actually attempt to restrict what it claims to restrict. They assumed that copyright law willingly and implicitly flees when faced with "fair use".

        Some of those existing limitations on copyright were written into copyright law in 1976. That was merely written acknowledgement that copyright did not (and could not) even attempt to restrict those things.

        It is extremely unfortunate that it was written into the law at all. Why? Because now many people MISTAKENLY think that fair use is something that copyright law grants to us. They therefore mistakenly think that fair use can be changed/reduced/eliminated at will simply by rewriting that law.

        It is not copyright law that restricts fair use, is is fair use that restricts copyright. Where fair use treads, copyright vanishes. In most cases it would be unconstitutional for copyright law to even attempt to infringe into the realm of fair use.

        Copyright holders don't have to assist fair use, but they have no rights at all and therefore no power at all when you proceed make fair use anyway.

        Fair use doesn't do shit for you unless you fit into the narrow provisions as described

        You have it backwards. It's copyright that "doesn't do shit for you unless you fit into the narrow provisions" granted. And the granted copy rights are subject to all sorts of limitations and restrictions and exceptions and have all sorts of holes in them.

        P.S.
        I am actually pro-copyright. Traditional copyright is a good and beneficial thing. I'm only agai
        • You make a lot of assertions, but you back them up with nothing but your word. I back mine up with actual quotes from actual copyright law, as done in the links, plus discussion based on that law. I'm pretty comfortable basing my understanding on that law, and the various readings of that law. Wacky interpretations made by one person may even be semantically correct in some uselessly abstract sense, but if the entire legal system from top to bottom disagrees with that person, it still does not describe how
          • You make a lot of assertions, but you back them up with nothing

            Which ones do you dispute?

            I refuted your claim that "Fair use is a very narrow allowance to use small portions of copyright works subject to severe limitations, no more" with your own refference to the Betamax decision. If you need a link, fine, here's a link. [oyez.org]

            The court said:
            "The District Court denied all relief, holding that the noncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted wo
    • Give this man a cookie!
  • Why hasn't the EFF gone after the MPAA for its ridiculous Region Code scheme on DVDs? If ever there was an illegal restraint of fair use rights to play legally purchased copies...

    • Re:Region codes (Score:1, Informative)

      by Anonymous Coward
      They have - look at the sections of their site regarding DRM and the DMCA. Problem is, the law is against us right now, and it will probably require an act of Congress to change that, not a court case.
  • Okay, I don't want to hear the arguments about infringing on my fair use rights, I understand those completely and can assure you all, issues like this make me want to curl up into a ball and hide under the bed some times (that, or start ranting and raving until I foam at the mouth)...

    But from a technological point of view (all that matters in practice, since we geeks will circumvent this crap, legal or not), how would this affect me (and those in the same situation)?

    Example - This year, I finally upgra

    • Re:How would this affect *me*? (Score:4, Informative)

      by rusty0101 ( 565565 ) on Wednesday March 10, 2004 @02:39PM (#8523303) Homepage Journal
      Ok, an attempt at making this "simple" probably isn't really going to work, but here goes anyway.

      In most cases, what a HDTV receiver receives is a digital signal in the form of something like am Mpeg2 stream, however handling the 1040i, or 740p signal as a bit stream. This bit stream is not a bit/byte(64bitword)per pixle representation, it is a compressed, and in some cases encrypted bit stream.

      An HDTV receiver will first decode the bitstream (if necessary), then check to see if the "block" bit is set. If it is, it will turn off any 1394 interfaces, to prevent you from capturing the raw HDTV stream to a PVR, or any other device capable of recording the HDTV stream.

      After that happens, the stream will be sent to the Mpeg decoder, (either software or hardware, most often hardware) which will send the decompressed output to the component video splitter, which breaks out the component video to the three leads going to your HDTV display. That signal is an analog signal, not a digital signal.

      At the moment I am not aware of any devices that will take that analog signal at 1080i, or 740p, as well as the 5.1, or 7.1 audio, and re-converting it into a mpeg2 stream that can be used to feed another hdtv receiver. Note that I am not saying it is impossible, or even difficult. I am saying _I_ am not aware of any consumer equipment capable of doing that.

      People are welcome to followup with better information, should they have it, or flames if they don't feel they are up to the challenge.

      -Rusty
    • I'm just guessing here, but I imagine that it would affect you by the HD tunder refusing to output a broadcast-flag encumbered signal to a non-copy protected output. In practice, this means DVI with HDCP (High Bandwidth Digital Content Protection).

      So you not only can't record it, I think you might not even be able to watch it unless your
      set has DVI HDCP inputs.
      • So you not only can't record it, I think you might not even be able to watch it unless your set has DVI HDCP inputs.

        Actually, you will not be able to watch protected content in HD unless you have an HDCP connection. Sure, you can get component video quality for SVHS copies, but that's not anywhere near HD, now, is it ?

        This has implications for all sorts of video equipment- any type of recorder, processor or display device. HDCP encrypted signals also completely screw over anyone who has already purchas

    • the signal has to get to the TV somehow, and most HDTVs currently sold don't include a built-in tuner?

      Yeah, that's one of the huge gaping holes in the stupid Broadcast Flag plan.

      The FCC is in the copyright lobby's pocket and willing to do *almost* anything they ask. About the only point the FCC isn't caving on is that they refuse to kill off every HDTV that's already been sold. The early-adopters would have a shit-fit about all of their uber-$$ hardware turning into worthless scrap would kill the High-de
      • The early-adopters would have a shit-fit about all of their uber-$$ hardware turning into worthless scrap

        At this point, I don't really think those of us upgrading to HDTV count as "early adopters", anymore... By the FCC's own rules, NTSC will die by the end of 2006 (The actual mandate reads oddly, but that seems like the basic idea of it). I don't know if 480i (basically our current NTSC, phrased as an ATSC standard) would count under that, but once HDTV broadcasts become ubiquitous, I doubt many statio
        • At this point, I don't really think those of us upgrading to HDTV count as "early adopters", anymore... By the FCC's own rules, NTSC will die by the end of 2006

          If you go by FCC mandates, then you're right, it's not really "early adopters". On the other hand if you go by percentages, something like 4% of homes have an HDTV set at all. Certainly not "bleeding edge", but I'd say that percentage still qualifies as "early adopters". Expecially since the FCC is still arguing over critical aspects of the system.

  • Is digital TV important enough for this flag? (Score:4, Insightful)

    by Uninvited Guest ( 237316 ) on Wednesday March 10, 2004 @01:58PM (#8522794)
    A little background:

    The motion picture and television industries know that digital broadcast is coming. They want to be able to play their content (movies and TV shows) over these digital channels. They are afraid that persons uknown will record the content in perfect digital clarity, and redistribute it overseas, for free or for profit. Overseas syndication is a big profit center for these guys; they don't want to give it up without a fight.

    If the broadcast flag fails, these industries just won't introduce content to digital broadcast. Movies will be available strictly by satellite or by digital cable (which already have protection built in). Original broadcast televions shows (which already have something like a 1 in 20 success rate) will just never appear on broadcast digital TV. In fact, broadcast digital TV might completely fail as a widespread technology (like AM stereo) for lack of content and because of low consumer adoption.

    The FCC sees its jobs as making that kind of widespread adoption possible, easy, and necessary. That's why the FCC adopted the broadcast flag. They think it's the only way that enough content will come to broadcast digital for the medium to have any chance of success.

    What we are left to ponder is this: Is broadcast digital televison so important that we are willing to accept these kind of use restrictions from the industry? Whatever you decide, be sure to let the FCC know.
    • Don't worry, it will be bypassed very quickly. Besides, do you think that many people care weather the copy they are watching is a perfect digital copy or inperfect copy analog copy?
      • Hold on there. If you bypass the protection, you're violating the DMCA, even if the purpose is for fair use. That's why we might want to prevent the broadcast flag from becoming standard in the first place.
        • If you bypass the protection, you're violating the DMCA, even if the purpose is for fair use.

          I wonder: If the intent of the circumvention it NOT intended to circumvent producer protection of their rights -- but is, rather, intended to protect fair use, with a simple side effect of possibly enabling violation of producer rights, would that make it past the courts?

          • I wonder: If the intent of the circumvention it NOT intended to circumvent producer protection of their rights...

            Come on. You've been reading SlashDot long enough to know that circumvention of protection [eff.org] alone is a violation of the DMCA. If you bypass the broadcast flag's protection algorithm, you're in violation of the DMCA, even if you do nothing with the digital output. If the broadcast flag is in place, there is no legal way to exercise fair use rights on protected broadcasts--not even for time-shift
    • If the broadcast flag fails, these industries just won't introduce content to digital broadcast. Movies will be available strictly by satellite or by digital cable (which already have protection built in). Original broadcast televions shows (which already have something like a 1 in 20 success rate) will just never appear on broadcast digital TV. In fact, broadcast digital TV might fail as a widespread technology (like AM stereo) for lack of content and because of low consumer adoption.

      So you think the br
      • It may be (more) crap, but there will be content.

        You have the idea. The broadcast industry is already having trouble making money. If they have trouble recouping investment on content, they will reduce their risk by producing less expensive content in the first place. That means more reality television and more game shows --because they are so darn cheap to crank out. The largest sports outlets will get coverage, so long as their broadcast fees don't go too high. By the way, according to Greg Craig, pre
        • The broadcast industry is already having trouble making money.

          Really? Not many years ago there a whopping SEVEN channels worth of programming (and that's counting the Public Broadcasting channel). That pretty much amounted to the entirety of nation-wide US programming. Maybe one channel of that was semi-regional.

          Now I am personally supplied with over 270 channels, and that doesn't even touch on the chennels I don't happen to get from all of the satellite networks and the huge increase in regional program
        • The broadcast industry is already having trouble making money.

          From what I've read, major network affiliates in major markets have very fat profit margins. It's the small stations that are squeaking by. Considering the large number of "owned and operated" stations in the top markets, I'd be very suspicious of any claims that the major networks have fallen on hard times.

  • It's crap like this that's preventing me from buying an HDTV set.

    I honestly believe that this will take years to clear up. People who buy a set and tuner now are going to be S.O.L. because technologies change every three months with new mandates rendering all our newly purchased stuph useless.

    I won't get an HDTV set until 2099 when they've finally stopped fighting about technology.

    • Re:Ya see! (Score:1, Insightful)

      by Anonymous Coward
      There are other reasons to get HDTVs...you can upsample DVDs and regular broadcasts and recieve a picture that is much more pleasing to watch...

    • Re:Ya see! (Score:2, Informative)

      by GrumpyOldMan ( 140072 )
      In some sense its nice that they are still fighting about technology. Time Warner has no idea that my new Zenith C32V37 with built-in HD tuners can decode Time Warner's digital cable signal, including the neighbors' on-demand HBO and Showtime. All for the price of basic cable.

      I'm sure they'll have all this sorted out by the time you get your set. Meanwhile, I'll enjoy the free ride while it lasts.
      • I'd be willing to bet that they already know all about it.

        They probably just don't have an effective way of billing you for it/preventing it though.

        • Possibly.. Their salescritters sure don't. They deny you can get HD without one of their set-top boxes.

          Another interesting channel I get is a grainy b&w (x10?) picture of a rack of servers with a thermometer. Some nights, that's the best show on TV.
  • "The lawsuit"... "charges that the FCC exceeded its jurisdiction, acted in an arbitrary and capricious manner, and failed to point to substantial evidence"

    No! That doesn't sound like the FCC, or any other government organization, does it?!?!

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