Cites & Insights: Crawford at Large
ISSN 1534-0937
Libraries · Policy · Technology · Media


Selection from Cites & Insights 5, Number 5: Spring 2005


©4: Locking Down Technology

Broadcast Flag and Grokster

Near the end of February, the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in ALA v FCC, a suit that claims the FCC had no business adopting the broadcast flag. It may be some time before a decision appears. Meanwhile, let’s look  at some of the briefs and related discussions.

If you think about it, the broadcast flag rulemaking is rather extraordinary. It’s not about broadcast quality, interference, channel allocation, or any area you’d expect the FCC to regulate. Instead, it’s about what happens to digital broadcast material after it’s received—an area that would seem well outside FCC’s jurisdiction. Much as the FCC likes to claim that it’s only a regulation on broadcast receivers, that’s nonsense: For the broadcast flag to work at all, it must (and does) apply to any device that can handle (receive, copy, send) data that originated as digital broadcasting, no matter how far removed from the receiver. Among other things, that includes every personal computer capable of handling digital-broadcast bandwidth—which in practical terms means almost every personal computer.

Starting Points

Susan Crawford (no relation) posted “Language makes policy” at her blog on September 20, 2004 (scrawford.blogware.com/blog, September 2004 archives). It’s a solid essay on the point that “policy is driven by phrases,” and begins with this paragraph—a great way to start the discussion:

The Broadcast Flag. The broadcast flag is beautifully and efficiently named, because it is neither about broadcast nor limited to the waving of a patriotic “flag.” Indeed, those who learn about the broadcast flag scheme quickly forget that it is focused on protecting digital television broadcasts and speak generally about the protection of digital content. And the “flag” is, in a sense, the least important part of the entire scheme. All it does is signal “the following content should be protected.” The heavy lifting—the encryption and locking-down of the content—is done by the FCC mandate and by the machines affected by the mandate.

Another September 2004 item shows just how effective groups are at using language to their own purpose—although in this case it was the National Association of Broadcasters, NAB, which doesn’t seem to be taking a direct stand on the broadcast flag.

According to the September 23 Wired News story by Michael Grebb, the NAB succeeded in gutting a bill from John McCain intended to force the digital transition. The bill, another cute name that forms Save Lives as an acronym, would have required broadcasters to give back their analog TV spectrum by January 1, 2009; some of it would be turned over to emergency workers, with the rest auctioned off to companies planning wireless broadband. That revenue from recovered TV spectrum is the sales pitch behind all of FCC’s moves to force the digital transition, which in turn is their primary excuse for the broadcast flag. Remember: TV broadcasters didn’t pay for the analog spectrum they use now, and they were also given the new spectrum for digital channels—given, not sold. Most observers don’t believe broadcasters have any intention of yielding the (free) spectrum they own—er, control.

McCain pushed the issue by setting a deadline and providing a $1 billion subsidy so that people dependent on broadcast reception could get set-top boxes to go digital.

When Fritz Hollings and Conrad Burns got their hands on the bill, they added a little amendment: the broadcasters wouldn’t have to give up the analog spectrum in a particular market if the FCC concluded that would create a “consumer disruption”—and if the FCC swallowed the arguments for the broadcast flag, it would certainly swallow NAB’s claims of disruption four years from now. McCain wasn’t happy; neither were other supporters. Hollings, ever the handmaiden of Big Media, had an easy response: “What you call a loophole we call flexibility.” In practice, McCain claims the new loophole is even wider than the current loophole (analog spectrum doesn’t have to be returned until 85% of American households are able to receive broadcast digital signals—a goal that may take many years, maybe a decade or longer).

The Court Challenge

An October 6, 2004 press release from Electronic Frontier Foundation announces it: “EFF, public interest groups challenge legality of the broadcast flag.” The release names EFF, Public Knowledge and ALA, and goes on to note that the brief in the case argues, “[T]he 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.” (Other plaintiffs: ARL, AALL, Medical Library Association, SLA, Consumer Federation of America, and Consumers Union.)

The brief

The opening brief in ALA v FCC was filed October 4, 2004; it’s readily available from EFF’s site (www.eff.org) in the broadcast flag archive, as are other briefs mentioned below. Why ALA? Presumably alphabetical order.

The brief raises three questions:

1. Whether the FCC exceeded its statutory authority by requiring Broadcast Flag technology to be included in digital television (“DTV”) receivers and other consumer electronic devices, despite the fact that this technology operates entirely outside interstate radio communications and Congress has specifically withheld authority from the FCC to control television receiver designs.

2. Whether the FCC acted outside its statutory authority by attempting to protect copyright holders through a mandate similar to that previously rejected by Congress in the Digital Millennium Copyright Act (“DMCA”), and by usurping the prerogative of Congress to create and define the scope of copyright.

3. Whether the FCC arbitrarily and capriciously promulgated the Broadcast Flag rule in the absence of substantial evidence that it is needed, and where the technology will not resolve the problem it is intended to address.

The brief answers all three questions positively. The first may boil down to whether the FCC is free to do whatever Congress explicitly forbids—an interesting claim for any unelected regulatory body—or whether it can only act within defined statutory grants. The brief asserts the latter. But that’s not all:

The FCC...mandated the technology without any proof that DTV programs have ever been placed on the Internet, and in the face of undisputed evidence that the Broadcast Flag regime will be entirely ineffective at stopping any pirate armed with an existing (“legacy”) DTV tuner that does not recognize the flag. [Emphasis added.]

In other words, it’s an illegitimate seizure of power to solve a problem that hasn’t been proved to exist with a solution that is admitted not to work.

The brief goes on to state that the flag is “a mechanism for expanding the copyright protection” of Big Media, goes into some detail on the effects on “downstream devices” such as PCs—all of which must recognize and obey the flag if it is to be effective—and notes just how wide the sweep of the flag really is:

It creates a whole new regime of technical and copyright-related regulation in one stroke: design regulation of electronic consumer equipment, including PCs; restrictions on use of the Internet; licensing requirements for downstream devices; and rules that will impede consumers from engaging in lawful uses of broadcast material.

It’s also expensive: Inherently, the flag will increase the cost of all flag-compliant devices. It makes existing devices less valuable (current DVD players cannot play future broadcasts recorded on a flag-compliant “DVD” recorder: that’s inherent in the downstream-protection requirement). It negates a variety of fair uses by making them impossible, including the reuse of public domain material contained within a flagged broadcast. It is indeed part of “a broader entertainment industry effort to expand copyright protection by controlling technology design”—an effort that’s been well documented (here and elsewhere).

The brief recounts the backroom dealing that resulted in the broadcast flag proposal: The Broadcast Protection Discussion Group, formed by an interindustry working group, found its efforts hijacked by “14-plus hours of exclusive negotiations among the MPAA and the 5C Companies,” the companies actively developing flag technologies.

Even Hollywood Howard Berman objected to the FCC’s rulemaking, although in a statement that suggests he was afraid the FCC might somehow “limit the exclusive rights of copyright owners.” Thousands of respondents objected to the FCC’s Notice of Proposed Rulemaking, many of them pointing out that the FCC doesn’t have the power to issue such a rule.

The whole case for the broadcast flag is Big Media’s assertion that without it, high-quality programming will be withheld from digital TV. But, as the brief notes, “None of the movie studios, television producers, or networks came forward with any proof that they had withheld one single program from digital broadcasting because of a lack of protection, or of a single instance of Internet redistribution of HDTV programming.” Not for lack of digital programming: there’s a lot of HDTV on the air, and “each of the major networks recognized that substantial amounts of digital broadcast content are already available absent any protection whatsoever.”

Viacom, owner of CBS, made the big threat in December 2002: “If a broadcast flag is not implemented and enforced by Summer 2003, Viacom’s CBS Television Network will not provide any programming in high definition for the 2003-2004 television season.” That’s particularly interesting, since CBS is the leader in HD programming: nearly all of its prime-time entertainment series were broadcast in HD in 2003-2004. It was, in other words, pure bluff—and yet, the FCC acts as though the bluff was a simple statement of fact.

The brief’s section on how the FCC claimed authority for the broadcast flag is fascinating, but really requires direct reading. Apparently, as long as the FCC finds something “necessary” to “lead the nation into a new era of free, over-the-air digital broadcasting,” it can do anything it damn well pleases…unless Congress has explicitly ruled out each specific thing the FCC’s thinking of doing. So the fact that Congress did explicitly say that FCC could say that TVs had to receive all channels but could not specify how well those channels were received has no bearing: That was only one little limitation on FCC’s apparently boundless authority.

Is the flag needed? Apparently, FCC doesn’t care. Maybe it’s not feasible to retransmit a high-def signal over the internet now (it’s not even realistic to retransmit a standard-def signal without heavy compression), but it might be at some point in the future. So what if commenters noted that the flag really wouldn’t protect digital content? The FCC concluded it was necessary as a “speed bump” to decrease the number of individuals who can share broadcast material—in other words, something to punish honest people without interfering with crooks.

The FCC claims the broadcast flag does not detract from fair use and acceptable copying—but it’s already approved a handful of devices using the flag, and “many of the technologies approved [interfere with consumers’ ability to copy flagged programs for personal use].”

The FCC acted outside its jurisdiction on behalf of people who should have no standing before the FCC (that is, the MPAA). It contends an astonishing boundless jurisdiction over anything that could ever be related to broadcast or receipt of programming, no matter how remotely. It flouts multiple explicit limits. It’s attempting to regulate activities wholly outside of interstate communication (and thus outside Federal rule); and it’s trespassing into copyright law.

Here’s a great analogy in the detailed arguments: “The Broadcast Flag resembles an assertion of FCC jurisdiction over an entire automobile simply because the car contains a satellite radio receiver.” Read the whole paragraph; it’s not a far-fetched analogy.

The response

I’ve gone through the 45-page FCC response (also available from the EFF site). All I see is a series of “Did not!” responses. The brief includes demonstrably false statements, assumes that the bluff issued by Viacom and others is legitimate and the basis for dramatically overstepping the FCC’s bounds, and nonsensically claims that the broadcast flag “protect[s] the integrity of broadcast digital transmissions” although it has nothing to do with broadcast quality or integrity. The brief is as breathtaking in its assertion of boundless FCC power as it is dulling in its lack of legitimate evidence or serious counter-argument.

Susan Crawford commented on the brief in a November 11, 2004 post, “Does the White House know?” She calls the brief “remarkable.”

The FCC’s brief…is breathtaking. FCC’s position is that its Act gives it regulatory power over all instrumentalities, facilities, and apparatus “associated with the overall circuit of messages sent and received” via all interstate radio and wire communication. That’s quite a claim.

FCC believes it has simply been restraining itself up until now. Since 1934…FCC has had power over all equipment used in connection with radio and wire transmissions. When the need arises, it can exercise its authority—including its authority over PCs, PVRs, and any new gizmo that has something to do with a communication of some sort.

…The thing is, this rule doesn’t merely affect TV receiving equipment. It affects everything that RECEIVES digital files from TV receiving equipment as well—every device inside any home network. It affects the open-platform PC. It’s a sweeping rule. And now FCC’s jurisdiction to enact this rule is being argued in sweeping terms.

And here’s….the RIAA

In the midst of all this, a November 15 Boston.com piece by Hiawatha Bray offers an interesting note: The RIAA doesn’t believe you have any right whatsoever to record an Internet broadcast for alter use—the Betamax case gave you the right to time-shift but not to save any recordings. So the RIAA wants FCC to add a radio broadcast flag to the new in-band digital radio transmissions, a “piracy cop that would prevent your copying the songs broadcast over the air.” Maybe you could record a stream for later use, but you couldn’t split it into songs—and once played, it would auto-delete. That requires considerable interference with the architecture of a PC. “In essence, the music companies want to control the design of all future home computers. It’s been their fondest hope for years…”

The reply brief

The reply brief was issued on December 2, 2004. The FCC had noted that “fair use” could still be achieved through the “analog hole” (albeit at lower quality), and the reply notes that such analog copying “may soon disappear after the DTV transition” and that, if the FCC has the power to prohibit some copying of broadcast programs, “it follows that it also has the power to prohibit all copying…”

The rest of the brief details the extent to which FCC argues around the many restrictions that Congress has placed on its authority, the ludicrousness of some FCC arguments (e.g., that Congress explicitly provided authority as an “emphasis” that the FCC already had that authority, despite clear legislative language to the contrary), and the astonishing breadth of new claims for FCC authority.

The hearing

There’s an old legal joke: When the facts are against you, argue the law; when the law is against you, argue the facts. For proceedings against government agencies, there’s a third clause: When the facts and law are both against you, argue standing.

That’s what Judge David Sentelle did. According to one observer (“Luminousvoid.net”) he used 10 minutes of the plaintiff’s 20-minute argument period claiming that the ALA and other plaintiffs could not demonstrate harm from the broadcast flag that would give them standing.

The other two judges were more sympathetic to the plaintiffs…as was Sentelle when it came to the facts. Judge Harry Edwards said, “You’re out there in the whole world, regulating. Are washing machines next?” Sentelle echoed, “You can’t regulate washing machines. You can’t rule the world.” In fact, ALA did show specific damage: The broadcast flag interferes with fair use for distance learning and criticism, as well as damaging the public domain. Judge Edwards wondered where the line of FCC jurisdiction should be drawn. Plaintiffs’ response: At receipt—but not including post-receipt handling.

From what I’ve seen of reporting, it sounds as though Sentelle was looking for an excuse to deny the suit. It will be interesting to see the outcome—and if you ever plan to record high-definition TV, I suggest you buy a “noncompliant” (and still legal) PC tuner card now, before July, just in case the court agrees with FCC’s overreaching.

This just in…

On March 15, 2005, the court issued an opinion asking for further facts about petitioner’s (ALA etc.) standing—thanks largely to MPAA “intervening” and challenging their standing. Actually, the MPAA intervention argues that, because ALA et al did not conclusively demonstrate their standing prior to the oral arguments, the case must be summarily dismissed—an argument that two of the three judges call a “’gotcha’ trap,” particularly given that both the court and the petitioners regarded standing as self-evident. (Need I say who the dissenting judge is? Go back four paragraphs…) The court wants ALA et al to amplify the extent to which the broadcast flag will damage library ability to make legitimate uses of digital content—and gives them some specific ways to do so. (For example, is Vanderbilt’s Television News Archive a member of one of the petitioning association? Are any “accredited nonprofit educational institutions” members of ARL or ALA—and, if so, how will the broadcast flag hinder distance learning?)

Susan Crawford (who blogged about this immediately) considers this good news: “I think this court wants to find standing. Once this legal threshold is in place, the court can walk right in and declare that the FCC had no jurisdiction to adopt the flag rule. And we’ll be back at Congress.” One can only hope—and also hope that, as Crawford urges, Congress “should act to lead the world in self restraint… Don’t let one industry (content, law enforcement, or telecom) control another (high-tech innovation) without a strong social consensus to do so.”

MGM v Grokster

I discussed the Ninth Circuit Court of Appeals ruling in this case last October (C&I 4:12, pp. 6-8). In an eloquent ruling, Judge Sidney R. Thomas held that Grokster and similar P2P programs that do not use central indexes could not be held liable for contributory copyright infringement. That decision also pointedly noted the Betamax doctrine and the related concept that you can’t extend copyright law to prop up an existing business model—at least not without Congressional action. Grokster and its peers have significant noninfringing uses, and the makers of the software have neither direct knowledge of infringing uses nor control over such uses.

Naturally, MGM and the other plaintiffs appealed, and the Supreme Court agreed to hear the case. Briefs have been flying thick and fast. I won’t even attempt to cover them all (I won’t attempt to read them all—this isn’t what I do for a living, and there are dozens of them). A few notes may be in order.

EFF’s January 25, 2005 “Deep links” post says, “[F]rom the beginning, this case has been about the entertainment industry’s effort to re-fight its war against the Betamax VCR… According to the entertainment industries, the Betamax defense ‘should not apply when the primary or principal use of a product or service is infringing.’” The post goes on to note why this is such a dangerous shift from the Betamax “mere capability of non-infringing uses” test, including the point that primary uses for new technologies change over time. For example, during the first days of Betamax—when there were no prerecorded videocassettes—VCRs were almost certainly used more frequently to make copied of movies that would be traded informally than they were after you could get cheap, higher-quality prerecorded cassettes.

Edward Felten agrees that the biggest issue is whether the Supreme Court will adjust or clarify the Betamax doctrine—and points out the failure of the “balance of interests” language in movie studio briefs. They consider only the interests of copyright owners and Grokster—“But that’s not quite the balance that Betamax is talking about.” The significant balance is the interest of everybody who benefits from a product’s existence. When Felten read a bunch of briefs filed in one group, he found three that understood this point—and the three came to different conclusions.

In a later post at Felten’s Freedom to tinker, he notes an interesting prediction on the likely outcome, from David Post at the Volokh Conspiracy. Post predicts that the Supreme Court will try to please both sides by overturning the lower court’s decision while upholding the Betamax doctrine. How can it do that? According to Post, “There’s evidence in [the case’s records] that Grokster and the other defendants actively encouraged and induced its customers to infringe copyrights, and that inducement of this kind is not protected by the Sony safe harbor.” Such a split decision could, Felten says, muddy the waters even worse.

Ann Wilson, Nancy Wilson, Janis Ian,  and others

This amici curiæ brief from a large handful of recording artists spends 10 pages discussing the careers of the people involved, to demonstrate that they’re a “diverse group of musicians that have extensive knowledge and experience in the music industry.” (Either that should be a group that has or it should be musicians who have, but never mind: Why should lawyers’ grammar be any better than mine?)

These musicians tout the virtues of P2P file sharing to promote musical works and affirm that Grokster and its peers have many non-infringing uses—and that it could yield “a significantly more prevalent alternative distribution and promotion system” that would “without question” further the professed aims of copyright.

They quote a Pew survey of 2,755 musicians. 35% of those surveyed thought file-sharing services could help promote and distribute an artist’s work; 23% believed such services were bad for artists; 35% proved themselves to have artistic tendencies by agreeing with both statements. As regards free downloading of music, 37% said it hadn’t affected their careers, 35% said it’s helped; and only 5% said it has exclusively hurt. Results were similar for artists in other media.

There’s more to the brief, particularly noting that it can help older artists who have been abandoned by the major labels—and new artists who don’t get signed by major labels. After citing anecdotes involving these artists, the brief notes “These are just anecdotes. But they stand in stark contrast to the industry’s claims of impending doom.”

I might not have read this brief had it not been for a March 1, 2005 press release from The Recording Artists’ Coalition. That release talks about artists being “seduced into believing” that unauthorized P2P systems benefit society and artists’ careers, says they “naïvely accepted the dishonest argument” that artists against Grokster are against P2P: “Nothing could be further from the truth.” Right. The release says the artists want P2P to offer “uninhibited and direct” distribution—but only while “respecting artists’ demands for fair remuneration.” How do you get “uninhibited” distribution with absolute assurance of “fair remuneration”? That question isn’t answered, for what I regard as obvious reasons. A statement from RAC’s national director comes to a simple conclusion as to the law—an interesting one given what the courts have said so far: “Illegal file-sharing systems like Grokster…” (emphasis added).

Grokster

Grokster’s own brief argues cogently against every claim made by the plaintiffs, but I won’t go into detail. The brief claims that Grokster is basically just a file transfer capability married to “a mechanism for efficiently finding other computer users who have files a user is seeking” and goes on to note, “[S]oftware to search for information on line…is itself hardly new.”

There are some interesting sidenotes—such as a claim from an “expert” on the other side that, if Grokster disappeared, the software would “degrade over time.” You know, bits don’t actually rot: You may outgrow software, but software doesn’t deteriorate (assuming that the disk it’s stored on doesn’t fail).

The brief notes that a continued assertion—that 90% of Grokster usage is infringement—is twice removed from the only actual claim: an allegation that over 90% of files exchanged involve copyrighted material, which is a very different statement. If you copy this issue of Cites & Insights or this essay as an HTML separate—which you must do, twice, in order to read it—you’re copying a file that involves copyrighted material. You will have done nothing illegal. Put it on a P2P system, and you still haven’t done anything illegal (as long as copies aren’t sold for commercial gain), given the explicit Creative Commons license. Almost every file you could possibly exchange (except for copies of very old books and government-produced material) “involves copyrighted material,” because even a blog post is covered by copyright as soon as it’s recorded in fixed form.

The brief mentions some successful businesses that use P2P file-sharing as a direct counter to claims that Betamax shouldn’t cover Grokster.

Internet law faculty, conservatives and others

A number of faculty at Berkman Center for Internet & Society at Harvard Law School filed a 28-page amici curiæ brief stressing the value of the Betamax doctrine (called “the Sony standard” in this brief). It “has proven to be an effective means of balancing the interests of copyright owners with the equally important need to preserve incentives for technological innovation.” The brief offers examples of that innovation (PVRs, CD burners, the iPod) and how they might have been throttled without the Betamax doctrine.

It’s a strong, detailed brief, forcefully rebutting various claims such as one that you shouldn’t allow a potentially-infringing technology if there are other ways to achieve similar ends. The brief also asserts that new business models can and should emerge, just as has happened throughout history: Studios made money because of VCRs after asserting that VCRs would ruin them, for example. Home video is now a much larger revenue stream than theater spending, although theater spending continues to grow slowly. After going through some of the numbers and claims regarding the effects of infringing downloading (and fee-based downloading), the professors conclude, “In sum, the sky is not yet falling.” They argue that claims of special entitlement by the entertainment industries are bogus in the Grokster case.

A March 3, 2005 story at Music Industry News Network notes a brief filed by the Consumer Electronics Association, Computer and Communications Industry Association, and Home Recording Rights Coalition. This brief also argues that the Betamax doctrine must not be overturned or modified.

Here’s an interesting one: a 16-page brief from the American Conservative Union and the National Taxpayers Union. “Well, of course those folks will argue for the tightest possible copyright,” I can imagine some of you thinking. Not so: In this case, both groups hold to Constitutional conservatism—and understand that extreme copyright conflicts with innovation and entrepreneurship. The brief talks about “expanding the scope of the statutory copyright monopoly” and notes these groups’ support for “capitalism, entrepreneurship, and innovation.”

In an information-technology-driven economy, we can ill-afford to chill innovation by placing unnecessary and unworkable legal constraints on inventors and technologists. Adoption of Petitioners’ proposed radical departure from the Sony doctrine would stifle innovation, increase costs to consumers and entrepreneurs, and cause significant and unnecessary harm to the economy and the public.

The brief goes back 120 years to discuss the Supreme Court’s consistent refusal to allow copyright holders to extend their rights so as to control technology. Later, they bring in the public interest issue apparently ignored in some other briefs.

A March 7, 2005 item in The Industry Standard notes that “more than 20” briefs were filed by technology trade groups, consumer advocates and lawyers. As always, Big Media has a simple stance, as evidenced by the statement from Dan Glickman of MPAA: The lower court’s ruling “rewards and promotes illegal behavior, that is the theft of intellectual property… The business model created by Grokster does not support property rights—it promotes stealing.” And so it goes.

Cites & Insights: Crawford at Large, Volume 5, Number 5, Whole Issue 61, ISSN 1534-0937, a journal of libraries, policy, technology and media, is written and produced by Walt Crawford, a senior analyst at RLG.

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