The Federal Communications Commission (FCC) was handed a serious blow
in it’s attempt to demand that all new computers and televisions (and other
consumer electronics) include copy protection hardware that would control
via a ‘broadcast flag’ that could be embedded in transmitted data as to
whether or not the end user could copy the received material.
Judge Harry T. Edwards gave the FCC some very
clear language to live by:
“In this case, all relevant materials concerning the F.C.C.’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 F.C.C. 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,”
Judge Edwards wrote. “And the agency’s strained and implausible interpretations
of the definitional provisions 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 mouse holes.”
An appeal is possible.
Articles: BusinessWeek
– NYTimes
– PCWorld
– WashingtonPost
– Wired
Google: <American
Library Association v. Federal Communications Commission>
loophole?
the F.C.C. 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…
Looking at this, there seems to be a very large loophole. My understanding is that many (if not all) cable descramblers/DVRs/etc transmit data back to the cable company. Therefore, going by this, they can be regulated.
Re:loophole?
DVRs certainly don’t need to transmit anything back. In any case, this isn’t about cable (where a recording flag does exist and is used by some premium channels–HBO limits DVR usage for its hit shows). This is about broadcast.
The court certainly wasn’t about to say that the FCC lacks authority when radio or wire transmission is taking place–after all, that’s what the FCC is for. Not exactly a new “loophole” to say the FCC can regulate what the FCC was established to regulate.
Re:loophole?
I think the HBO limit (and transmission) depends on your DVR. If you have one with software behind the scenes (e.g. TIVO) they can control your usage, send data back to the mothership, etc., but most of them just record shows to a hard drive. And those are the ones that the industry hates – they can’t control them like TIVO and force you to watch the commercials.
Sometmes I wonder if the TV industry is going to invent mind-wiping technology so they can just make one show and show it over and over again…
Re:loophole?
Given the continued popularity of “reality” shows and the endless reruns of some programs, I wonder whether that technology isn’t already in place. It doesn’t work for everyone, but it seems to work for a lot of people.
You’re right: Some DVRs, particularly ones that are really just TV tuners and schedulers on PCs, ignore cable flags–but for premium channels, set-top boxes may prevent recording on such DVRs. (I don’t know: we don’t pay for any premium channels.) I do know that HBO’s post-facto erasure of some hot series from DVRs was a minor cause celebre.
All well and good but….
what does this have to do with libraries? Why is the ALA a plaintiff? I can understand EFF, Consumers Union and any number of organizations concerned with copyright but why the ALA?
Does your library record television shows? Does your library have HDTV? My library still has Windows 95 on some machines, so HDTV is not coming until after my retirement party.
I could understand an Amicus Curiae brief, but to take the lead in this is simply not what the ALA (It is still the American Library Association is it not?) should be doing. No wonder the dues are more than I spend on groceries in two weeks.
Every day in every way, even with the efforts of the many people who are working hard to improve the ALA, I find the ALA to be more and more a bastion of liberal rabble rousers who care little about libraries or librarians.