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

Selection from Cites & Insights 5, Number 8: June 2005


The Broadcast Flag (an Endless Story?)

On May 6, 2005, the U.S. Court of Appeals for the District of Columbia circuit ruled unanimously: The FCC exceeded its authority in establishing the broadcast flag. “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.” The American Library Association and co-petitioners won.

Consumer and balanced-copyright groups were jubilant, although some noted that the fight will now return to Congress. A few pessimists assumed Congress would ram through legislation to enforce the broadcast flag almost immediately—but that seems unlikely. Consumer organizations, electronics and computer manufacturers, library associations, and a whole range of others have become much more aware of the dangers of copyright extremism than back when the Digital Millennium Copyright Act passed.

ALA and its allies cited three grounds for striking down the broadcast flag order. The court chose to rule on just one of the three—leaving the other two open in the unlikely case an appeal is successful. For now, design innovation continues to be an open field.

That’s the short form—and the rough draft of a sidebar update to my “PC Monitor” column in the July/August Online, where half the column discusses the broadcast flag and its unfortunate consequences. Maybe it should be enough for the long form as well. But you know I have more to say!

Early Reaction and the Ruling

The people at Copyfight posted several messages, first announcing the decision, then excerpting a “killer quote” from the decision itself and from Cory Doctorow. The “killer quote” is a good one—“you can’t hide elephants in mouseholes”—but it’s not original to the decision. Here’s the paragraph:

We can find nothing in the statute, its legislative history, the applicable case law, or agency practice indicating that Congress meant to provide the sweeping authority the FCC now claims over receiver status. And the agency’s strained and implausible interpretations of the Communications Act of 1934 do not lend credence to its position. As the Supreme Court has reminded us, “Congress does not…hide elephants in mouseholes.” Whitman v. Am. Trucking Association 531 U.S. 457, 468 (2001). In sum, we hold that the Commission only has general authority under Title 1 to regulate apparatus used for receipt of radio or wire communication while those apparatus are engaged in communication.

Ernest Miller’s The importance of… blog, a Corante cousin to Copyfight, included loads of links to various coverage in a May 6 post, “Victory in broadcast flag! FCC has no authority says court.” Miller quotes paragraphs in which the court finds FCC’s claim of broad authority “an extraordinary proposition” and “categorically rejects” the FCC’s position.

Miller cites one key aspect of the ruling: The court understood that the broadcast flag regulation doesn’t do anything until after a broadcast is complete. It doesn’t regulate the actual transmission; it imposes regulations on what happens after the transmission has ended. That’s way outside the scope of the FCC. (Miller also notes the irony that the court cites a case ruled in favor of the MPAA in striking down a regulation the MPAA desired.)

Cory Doctorow of EFF was ecstatic and blunt. He makes an odd connection between the broadcast flag and open source software (the rules affected a lot more than open source!) and, after some childish rhetoric (I don’t know what else to say about “NEENER NEENER NEENER”), comments on the likelihood that the MPAA can shove the broadcast flag through Congress:

The next move here is that the studios will take this to Congress and try to get a law passed to make this happen. No chance. They got ZERO laws passed last year. This year the best they’ve been able to accomplish is making it slightly more illegal to videotape movies in the theatre.

The fact is, elected lawmakers are not suicidal enough to break their constituents’ televisions. Watch and see: over the next year, we’re all going to roast any lawmaker who so much as breathes the words “Broadcast Flag” in a favorable tone.

EFF tends toward one extreme on copyright issues, but I think the first sentence of Doctorow’s second paragraph here is true. (OK, I’m an optimist, but…)

Susan Crawford wrote a law review article asserting that the FCC “does not have power to make rules about products and services that don’t fall under its existing statutory authority over telecommunications companies, broadcasters, and cable companies” (quoting from her blog). She’s naturally gratified to see that the court agreed. She goes on to raise interesting future questions:

Although the DC Circuit didn’t have to reach this question, my view is that when the FCC starts making rules about a VoIP [voice over internet protocol—“Internet telephony”] application that doesn’t terminate calls using a traditional telephone number, or an email application, or PCs, or anything else it hasn’t traditionally made rules about, it will be acting beyond the powers given it by Congress. This means we will have to have a sustained national conversation about the scope of the FCC’s authority over the internet before the Commission can act.

A slightly more radical take on that, but one that comes naturally to a centrist like me: The FCC has no authority to rule on email, PCs, or—for that matter—VoIP that doesn’t wind up entering the wired telephone network. It doesn’t have that authority now, it never has had, and it never should have. What “sustained national conversation” is needed?

ALAWON, ALA’s Washington Office Newsline, distributed a single-topic issue on May 6: “Court rules for libraries, consumers in broadcast flag case.” Two key paragraphs:

The decision is being hailed as a significant step towards restoring the rights of consumers to make lawful copies of digital content. “This is a big victory for consumers and libraries,” said Emily Sheketoff, executive director of the American Library Association (ALA) Washington Office, representing the petitioners in the case.

“The broadcast flag seriously undermined the rights allowed nonprofit educational institutions under the TEACH Act to distribute digital content over the Internet for distance learning purposes. It even imposed restrictions on how consumers are able to use digital content in their own homes. We are happy the court has restored the rights of libraries and consumers by ruling that the FCC does not have the right to mandate technological copy protection,” Sheketoff added.

The Information Technology Association of America (ITAA), an association of 380 corporations providing “global public policy, business networking, and national leadership to promote the continued rapid growth of the IT industry”—what you might think of as tech lobbyists—also “endorsed” the ruling, with this quote from ITAA president Harris Miller:

“We believe the marketplace, not federal regulators, is the best arbiter of technology standards… Congress never intended the FCC to be the Federal Technology Commission. Just as video recorders and DVD players have created substantial new markets for motion picture producers, we believe that copyrighted digital broadcasts will build substantial new markets and new business opportunities for a wide range of copyright owners.”

An entirely pro-business stance—but that’s ITAA’s business. It’s useful to recognize that the broadcast flag harms business as well as citizens and libraries.

Finally, for this scant selection from the massive outpouring of commentary, the Special Libraries Association (also one of the petitioners) issued a press release with this quote from SLA’s Executive Director Janice Lachance:

“This would have had a monumentally detrimental effect because it would have stopped the flow of digital information to people who have the right to use and share it… It would have prohibited librarians, archivists, and educators from legally sharing digital works.”

Later, Lachance argues the need for balance—although her cry for “those of us with an interest in providing legal access to information” and “those who seek to protect intellectual property and compensate owners” to “work hand-in-hand to ensure balance” seems a bit other-worldly.

As to the ruling itself, it’s readily available on the internet. It runs 34 pages in PDF form, neither an unusually brief nor an unusually long decision. It’s well written, but I don’t find a compelling need to quote huge chunks of it. Judge Edwards wrote the decision and pretty well takes the FCC’s stance apart piece by piece—and thoroughly dismisses the MPAA’s attempt to derail the proceedings by claiming that ALA and the others lacked standing.


The standing issue turned out to be interesting. Judge Sentelle seemed somewhat eager to dismiss the challenge on that basis, but in the end concurred with the decision. The FCC itself didn’t raise standing as an issue; MPAA came along after the oral hearing and claimed that the petitioners would not be specifically harmed by the flag. I think of this as the “smog defense”: “Hey, the broadcast flag’s going to screw everybody except us—why should librarians be able to complain about it?” The smog defense doesn’t work in general, and it didn’t work this time.

ALA and its allies provided a baker’s dozen of affidavits demonstrating specific harm to their members and a 17-page supplemental brief stating the case. Just two of the specific injuries:

Ø    Vanderbilt University is a member of ARL (one of the petitioners). Vanderbilt’s Television News Archive (more than 40,000 hours of TV news broadcasts) provides a range of services to on-campus computers and library subscribers over the internet. “The Flag would foreclose this type of use for broadcast news programs. Indeed, the Flag would foreclose such uses by any library or archive seeking to provide news-broadcast material copied pursuant to the specific exemption in the Copyright Act for this activity.”

Ø    North Carolina State University Libraries—another ARL member—helps its faculty to use clips of broadcast shows available for distance learning students, a use protected by the TEACH Act. Because distance learning takes place over the internet, “the Flag will prevent this educationally beneficial activity.”

I found one or two of the examples somewhat unconvincing (such as EFF’s capture of a five-minute portion of a high-def broadcast of Lord of the Rings to be used to “test the capabilities of PVRs”), but on the whole it’s an impressive list of specific injuries beyond those everyone would suffer if the broadcast flag went into effect.

The court found this convincing. The ruling specifically notes NCSU Libraries’ activity and notes that the FCC does not dispute the legality of NCSU’s current practices. Quoting from the ruling, “if the regulations implemented by the Flag Order take effect, there is a substantial probability that the NCSU Libraries would be prevented from assisting faculty to make broadcast clips available to students in their distance-learning courses via the Internet.” Standing by an association requires three tests, and there was no argument as to the other two (the association seeks to protect interests germane to its purpose, and neither the claim nor relief requires the participation of an individual member). The third is that at least one of the association’s members has standing; thus, NCSU was enough.

MPAA made the strained argument that injury suffered would be “due solely to the independent…decisions of third parties not before this Court”—essentially, that there’s no injury because some manufacturer might someday be able to gain approval for technology that would meet broadcast flag requirements and still allow NCSU to do what it’s doing. “Thus, under MPAA’s view, redress for petitioners must come from the hardware manufacturers, not the FCC. This is a specious argument.’ That seems clear enough.

A Little Background

The first mention of the Broadcast Flag (or a broadcast flag) in Cites & Insights was in November 2002 (2:14), citing an August 2000 EMedia news report. Even back then, there was a claim that the proposal represented an “agreed” solution between Big Media and consumer electronics companies to protect digital TV—but the agreement came from closed discussions, and the Consumer Electronics Association and many others involved denounced it immediately. CEA was worried about tens of millions of existing DVD players that wouldn’t play new “protected” DVDs (with Hollywood adamantly opposed to grandfathering the players); even then, it was clear that the flag would make existing digital TV somewhat obsolete and possibly useless. Big Media always had its friends in Congress: Rep. Billy Tauzin (R-Louisiana) drafted a DTV bill that not only included the broadcast flag but also mandated that digital TVs not include analog output—so you wouldn’t be able to record from them even to VCRs and standard-definition DVD burners.

I discussed the flag in four 2003 issues: January, March, Spring, and August. In January (3:1), I devoted a Perspective to the flag, suggesting it was “CBDTPA reborn” (if you don’t remember CBDTPA, it was an extreme proposal for technological lockdown that went nowhere) and noting that it was being proposed as an FCC rulemaking because Congress wasn’t moving fast enough. In March (3:3), I foolishly suggested that the broadcast flag was “probably dead in the water” because no copyright law seemed likely to pass that year—forgetting momentarily that the flag was an end-run around Congress. Spring (3:5) saw a five-page Copyright Special on the flag, this time calling it “Hollings Lite?” (another reference to CBDTPA and similar abusive legislation from Senator Fritz “Hollywood” Hollings). That essay notes that Howard Berman actually worries that the FCC rulemaking might not be tough enough—that it might recognize some fair use rights; it also recounts the results of some attempts to post sizable digital video files on the internet—an amusing set of attempts. The August mention was an extended citation, a comment on a May 2003 EMedia article on the broadcast flag. This article was very much pro-flag—and referred to an “unpleasant chapter in digital entertainment: the audio CD debacle of the early 1980s.” Unpleasant, that is, to Big Media hardliners—CDs don’t include copy protection and can be used in all the ways provided by First Sale and Fair Use doctrines. The flag would stop all that.

The flag rulemaking happened in November 2003; I was a bit late in discussing it, but tried to make up for delay. The April 2004 Cites & Insights (4:5) was entirely devoted to the broadcast flag—20 pages worth—including the rulemaking itself, various commentaries, and why you should care. That issue wasn’t one of the more widely downloaded issues in Volume 4—just over 1.800 unique downloads, as far as I can tell—but that may be misleading. I believe the entire issue appears on at least one other website, which is perfectly legitimate given C&I’s Creative Commons license. I’m guessing that many library readers of C&I still didn’t care enough about the broadcast flag to read that much about it, and that’s also understandable. Naturally, I recommend that issue (and perhaps the essays in 3:1 and 3:5) if you want to get up to speed on the broadcast flag. In an October copyright roundup (4:12), I devoted roughly two pages to the situation, beginning “So far, there’s no sign that either a court or Congress is ready to step in and block the FCC’s outrageous power grab, the Broadcast Flag…” and going on to note proposals for digital radio broadcast flags and Disney’s recommendation that all music distribution platforms should be locked down as a matter of government policy. (That commentary also mentions the AHRA, the home recording act that imposed a royalty on digital recording devices and media in return for forbidding copyright infringement suits for home recording—and RIAA’s attempt to deny the agreement based on exotic notions such as that AHRA only covered tape recording. Sometimes, you have to read the arguments made by Big Media to believe just how extreme they can be.)

Fortunately, the courts did act. As noted first in January (5:1), the suit was scheduled for oral arguments in February. Spring 2005 (5:5) includes a four-page discussion of the briefs and commentaries related to that hearing, ending with Susan Crawford’s believe that “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.” I don’t know whether that was prescience or just first-rate analysis; I should note that there are lots of Crawfords in the U.S., that I’ve never met Susan Crawford, and that I know of no relation. Other than that we both care about the broadcast flag.

In Closing (for Now)

Remember the first word in “broadcast flag.” This was never about protecting pay-per-view material or premium cable or preventing redistribution of a DVD or a CD. The material in question has been broadcast—over the airwaves that the U.S. government provides for free to a group of highly profitable businesses.

That material has already been paid for. The presumed intent is for it to reach the widest possible audience. It’s called broadcasting, not narrowcasting or restricted transmission.

Ever since the Betamax decision, we’ve assumed we had the right to watch broadcast TV as we see fit—delaying it, watching it over again, even (gasp!) fast-forwarding through commercials. MPAA hated Betamax, with Jack Valenti predicting it would strangle Hollywood. Quite the opposite happened—but Big Media has never given up its attempts to assert control over every use of its products, even after those products have been broadcast over the airwaves.

You can support copyright protection and still find the broadcast flag extreme, even reprehensible. You can support strong copyright protection and understand that the flag goes way too far. I do not believe that you can support the broadcast flag, or any variation of the concept, and claim that you believe in balanced copyright or in citizen rights.

The broadcast flag would injure every library and librarian, directly or indirectly. For now, it’s dead. Let’s hope it stays that way—and here’s to Public Knowledge, ALA, ARL, SLA, AALL, MLA, the Consumer Federation of America, Consumers Union, and EFF. They fought against this unreasonable regulation (and FCC power grab), and they won. At least this round.

It’s rarely that simple…

I completed this Perspective on May 12. Checking Bloglines the next morning, I found several posts referring to another act in this long-running drama. Apparently, MPAA’s been shopping around a proposed Congressional act “to ratify the authority of the Federal Communications Commission to implement a Broadcast Flag.” Here’s the key additional subsection to the FCC’s authority:

Have authority to adopt regulations governing digital television apparatus necessary to control the indiscriminate redistribution of digital television broadcast content over digital networks.

The proposed law would also explicitly ratify the flag ruling itself.

Public Knowledge’s Gigi B. Sohn responded, “This language is more sweeping than even the FCC contemplated. It would give the Commission unparalleled new power over the development and use of digital and analog consumer electronics technology. It empowers the FCC to approve technologies that prevent currently used video cassette recorders (VCRs) from working, and would allow the FCC to shut off every TiVo in every home today. Clearly, we hope Congress will reject this big-government, anti-consumer approach.” (Quoting from Ernest Miller’s The importance of… weblog)

Cory Doctorow entitled his boingboing post “Broadcast Flag back from the dead” and called the proposal “shockingly broad and badly conceived,” noting that MPAA was apparently out to “find a Congresscritter so fantastically, suicidally stupid that s/he will actually set out to break America’s televisions.” The post goes further, noting that the language of the bill would allow the FCC to try to plug the “analog hole” and would make the FCC “an entity that will have to regulate every single contractual relationship between every single digital television tech supplier, and every device that can be used to receive a digital TV signal, which means every PC.”

A New York Times story on May 9, 2005 was nicely done and included quotes that would be astonishing if they weren’t so typical. The lead’s a fairly brash “calling their bluff” comment: “Broadcasters have long threatened to withdraw their high-definition digital programs from free, over-the-air TV unless those programs could be protected from piracy. A ruling by the United States Circuit Court of Appeals on Friday could give them the opportunity to make good on those threats.” The word “piracy” is unfortunate, if typical—and one wonders how you can “pirate” something that’s been broadcast over airwaves for free. Never mind. The story goes on to say that advocates of the broadcast flag will try for Congressional legislation, notes that it would take about 24 hours to send a one-hour HDTV show over the internet (probably an optimistic figure), and includes a typically absurd quote from Richard Cotton of NBC Universal: “The challenge you put in front of content owners is, ‘What can they afford to have completely and easily stolen?’ You could imagine a huge migration away from broadcast TV.” But they’ve already been paid for the content—otherwise, how would it be broadcast? Of course, an MPAA spokesperson plays the usual role reversal: “We’re concerned, because if proper protection is not in place, consumers could lose content.” That’s Big Media: Always looking out for citizens—er, consumers! (One interesting note in a correction to the article: Thomson, which owns the RCA brand name, doesn’t actually produce RCA TVs—those come from a joint venture with a Chinese company, presumably meaning Chinese production. Ah, the great old American brand names: At least you know Apex is a Chinese manufacturer!)

The broadcast flag story isn’t over. I suspect no sane politician will embrace the notion of “breaking all the TVs” and “shutting down the TiVos”—but you can never tell.

Cites & Insights: Crawford at Large, Volume 5, Number 8, Whole Issue 64, 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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