Die, Broadcast Flag, Die!

by on January 11, 2007 · 16 comments

Good news from the Senate:

At first [Hollywood] approached the FCC, and the FCC complied by dutifully trotting out some new broadcast flag regulations. Unfortunately for the content industry, the FCC doesn’t generally have the right to tell manufacturers how to build their products. The rules were thrown out by an appeals court in 2005. Undaunted, the industry tried again in Congress. Last year, when a rewrite to the 1996 Telecommunications Act was being considered, broadcast flag legislation was in fact attached to the bill and even made it through committee before bogging down. Sununu’s bill will attempt to rein in the FCC and prevent it from reviving the broadcast flag without Congressional authorization to do so. “The FCC seems to be under the belief that it should occasionally impose technology mandates,” Sununu said in a statement. “These misguided requirements distort the marketplace by forcing industry to adopt agency-blessed solutions rather than allow innovative and competitive approaches to develop. We have seen this happen with the proposed video flag, and interest groups are pushing for an audio flag mandate as well. Whether well-intentioned or not, the FCC has no business interfering in private industry to satisfy select special interests or to impose its own views.”

Whatever your views on DRM more generally, it’s awfully hard to make a libertarian argument for giving the FCC authority to dictate how consumer electronics companies will design their products.

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About Tim Lee

Timothy B. Lee (Contributor, 2004-2009) is an adjunct scholar at the Cato Institute. He is currently a PhD student and a member of the Center for Information Technology Policy at Princeton University. He contributes regularly to a variety of online publications, including Ars Technica, Techdirt, Cato @ Liberty, and The Angry Blog. He has been a Mac bigot since 1984, a Unix, vi, and Perl bigot since 1998, and a sworn enemy of HTML-formatted email for as long as certain companies have thought that was a good idea. You can reach him by email at leex1008@umn.edu.

Read more articles by Tim Lee.

  • http://www.blogger.com/profile/14019452 Steve R.

    I would like to “clarify” the issue a bit. The FCC is (or at least should be) in the business of establishing standards for how equipment will function. The actual design of how the electronic equipment complies with those standards is up the the manufacturer. The FCC of course also certifies those designs as being compliant.

    In term of the FCC “dictating”, I prefer the viewpoint that the FCC is simply being “spineless”. From my perspective, the FCC should not be proposing any rules that are designed to protect a companies proprietary rights. The broadcast flag is not a technical standard necessary for transmitting a clean signal. Its unfortunate that we have a government of and by the corportions. Maybe the FCC will develop a backbone someday and refuse to be a lackey of the content industry.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    I would like to “clarify” the issue a bit. The FCC is (or at least should be) in the business of establishing standards for how equipment will function. The actual design of how the electronic equipment complies with those standards is up the the manufacturer. The FCC of course also certifies those designs as being compliant.

    In term of the FCC “dictating”, I prefer the viewpoint that the FCC is simply being “spineless”. From my perspective, the FCC should not be proposing any rules that are designed to protect a companies proprietary rights. The broadcast flag is not a technical standard necessary for transmitting a clean signal. Its unfortunate that we have a government of and by the corportions. Maybe the FCC will develop a backbone someday and refuse to be a lackey of the content industry.

  • Doug Lay

    Go Sununu! Nice to see a Republican congresscritter be good for something, for a change.

  • Doug Lay

    Go Sununu! Nice to see a Republican congresscritter be good for something, for a change.

  • Randy Picker

    What is the libertarian position on the role of government in creating enforceable property rights?

  • Randy Picker

    What is the libertarian position on the role of government in creating enforceable property rights?

  • http://www.techliberation.com Tim Lee

    Prof. Picker,

    Obviously, libertarians believe that there’s a legitimate role for government in enforcing property rights. But even if I grant that copyright is analogous to traditional property rights, I don’t think the analogy extends to broadcast flag mandates. If DRM is like a lock, and the DMCA is like a ban on lock-picking, a broadcast flag mandate is like government regulation of the lock industry.

    Keep in mind that compliance with “the broadcast flag” isn’t a simple yes-or-no question. Because of the way DRM works, the FCC will end up being in charge of deciding which features a digital device is allowed to have and which it’s not allowed to have. If a CE manufacturer wants to add a new feature to its device–say the ability to stream recorded video to a device in another room, or to back it up to an external device, or whatever, the FCC (or an industry group the FCC designates) will have to decide whether that activity is permitted. It’s really quite intrusive, and at odds with the usual libertarian skepticism about government regulation of industry.

  • http://www.techliberation.com Tim Lee

    Prof. Picker,

    Obviously, libertarians believe that there’s a legitimate role for government in enforcing property rights. But even if I grant that copyright is analogous to traditional property rights, I don’t think the analogy extends to broadcast flag mandates. If DRM is like a lock, and the DMCA is like a ban on lock-picking, a broadcast flag mandate is like government regulation of the lock industry.

    Keep in mind that compliance with “the broadcast flag” isn’t a simple yes-or-no question. Because of the way DRM works, the FCC will end up being in charge of deciding which features a digital device is allowed to have and which it’s not allowed to have. If a CE manufacturer wants to add a new feature to its device–say the ability to stream recorded video to a device in another room, or to back it up to an external device, or whatever, the FCC (or an industry group the FCC designates) will have to decide whether that activity is permitted. It’s really quite intrusive, and at odds with the usual libertarian skepticism about government regulation of industry.

  • Doug Lay

    Professor Picker, incredibly enough, appears to believe that it is only with the advent of secure encryption (a.k.a. “DRM”) that copyright has really become a form of property.

    http://picker.uchicago.edu/Papers/FEBFdistrib100.pdf

    Leaving aside the rather obvious controversy over whether such a thing as secure DRM really exists or is likely to exist anytime soon, it’s certainly not the FCC’s business to decide what is and isn’t property. You don’t need to call yourself a libertarian to come to that conclusion!

  • Doug Lay

    Professor Picker, incredibly enough, appears to believe that it is only with the advent of secure encryption (a.k.a. “DRM”) that copyright has really become a form of property.

    http://picker.uchicago.edu/Papers/FEBFdistrib10…

    Leaving aside the rather obvious controversy over whether such a thing as secure DRM really exists or is likely to exist anytime soon, it’s certainly not the FCC’s business to decide what is and isn’t property. You don’t need to call yourself a libertarian to come to that conclusion!

  • http://www.blogger.com/profile/14019452 Steve R.

    Doug: Thanks for posting the reference to Randy Picker’s article. Though I disagree with his position, it was an interesting read.

    Randy: One of the unstated aspects of DRM technologies is: What happens when the copyright expires? In my readings on the use of DRM technologies, this issue does not seem to have been explored. For example, if a CD or DVD enters the public domain, does the DRM technology simply turn itelf off???

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Doug: Thanks for posting the reference to Randy Picker’s article.
    Though I disagree with his position, it was an interesting read.

    Randy: One of the unstated aspects of DRM technologies is: What happens when the copyright expires? In my readings on the use of DRM
    technologies, this issue does not seem to have been explored. For example, if a CD or DVD enters the public domain, does the DRM
    technology simply turn itelf off???

  • Doug Lay

    For example, if a CD or DVD enters the public domain, does the DRM technology simply turn itelf off???

    Of course not, but since under the current copyright regime nothing ever enters the public domain, the issue is purely academic.

  • Doug Lay

    >> For example, if a CD or DVD enters the public domain, does the DRM technology simply turn itelf off???

    Of course not, but since under the current copyright regime nothing ever enters the public domain, the issue is purely academic.

  • http://www.blogger.com/profile/14019452 Steve R.

    I agree, just asking to see what the response would be.

    If you look at page 16 of Dr. Picker’s paper, the question is posed concerning the “scope of rights that a consumer should have ..”. He mentions the concept of “contract” as if the consumer and vendor are entering a mutual agreement. However, based on what I have read in the following pages, it appears that it is only the vendor that sets the terms. The only “right” that the consumer appears to have is not buying the product.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    I agree, just asking to see what the response would be.

    If you look at page 16 of Dr. Picker’s paper, the question is posed concerning the “scope of rights that a consumer should have ..”. He mentions the concept of “contract” as if the consumer and vendor are entering a mutual agreement. However, based on what I have read in the following pages, it appears that it is only the vendor that sets the terms. The only “right” that the consumer appears to have is not buying the product.

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