more on Open letter from CDT on broadcast flag

[David Farber <dave () farber net>]

Begin forwarded message:

From: Mike Godwin <mnemonic () well com>
Date: August 26, 2005 10:08:06 AM EDT
To: dave () farber net, Ip Ip <ip () v2 listbox com>
Cc: mnemonic () well com
Subject: Re: [IP] Open letter from CDT on broadcast flag



Dear Dave,

I think CDT deserves credit for owning up to the fact that its recent  
paper on the broadcast flag gives some false impressions, both about  
CDT's position, and about what makes the broadcast-flag scheme  
problematic.

Even so, I think it is helpful to elaborate on four substantive  
points where many of us who opposed the flag scheme, and who  
successfully challenged it in court, think the CDT paper went wrong.

First, the CDT paper flatly accepts the studios' statement of the  
problem (that digital TV is more piratable than other kinds of TV).  
This statement of the problem is technologically bankrupt -- analog- 
originating television is at least as piratable on the Internet as  
digitally originating TV is, and arguably more so, since analog-to- 
digital conversions are trivial, and since analog-originating TV  
digitizes to much smaller file sizes than digital-TV native formats.   
(HDTV must be hugely reduced in resolution -- and therefore visual  
quality -- in order to be as easily distributed over the Internet. )

Second, the CDT paper assumes that if DTV piracy is a problem, then  
the broadcast-flag scheme is the only possible solution. This too is  
insupportable from a technological standpoint.  Broadcasting your  
signal in the clear and then "protecting" it by hobbling receivers,  
computers, and other devices is an inherently brain-damaged  
proposition.  Any technologist not in the pay of a movie studio knows  
this.

Third, while I respect CDT's desire that a broadcast-flag regime be  
imposed, if at all, in a narrow and precise way, I must note that,  
once you actually understand how the flag scheme works, you realize  
that it can only work, if at all, if it is imposed broadly -- one  
might more properly say "universally" -- and that entails huge  
government oversight over everything, forever.  Impose it narrowly,  
and it will be so ineffective that you might as well skip it altogether.

Fourth, the CDT paper "papers over"  other objections to the flag  
scheme based on copyright policy.  For example, while forbidding the  
flagging of public domain and public affairs content is critical, it  
does not go far enough.  Flagging also should not be permitted for  
programming specifically designed to serve the educational and  
informational needs of children.   Moreover, effective distance  
education requires the ability to retransmit not only segments of  
news broadcasts, but also of other programs with cultural  
significance.  (It was the impact of the flag on distance education  
activities of libraries that provided petitioners with standing in  
the DC Circuit.)  Thus, government bodies and educational  
institutions must be able to purchase and use demodulators that do  
not respond to the flag, and manufacturers must be able to make such  
devices for such institutions.

Those of us who have worked with CDT over the long term (I myself  
worked for CDT for years) have no doubt that the flaws in CDT's most  
recent paper on the broadcast flag scheme are, as Dave McGuire hints,  
primarily the result of the rush to get something useful in front of  
Congress, should Congress decide to act quickly on the proposal.   
Nevertheless, we hope very much that CDT revises its paper not just  
to ensure greater clarity, but also to correct the substantive issues  
I outline above.

Furthermore, we think that Congress also should be urged to deal with  
the broadcast-flag scheme, if at all, in a separate, freestanding  
bill, rather than as a broadly worded amendment/addition to some  
other bill, such as budget legislation.  History teaches us that if  
Congress attempts to add to a budget bill something like FCC  
authorization to implement a broadcast-flag proposal, it will  
inevitably be broadly and vaguely worded, and the result will be  
antithetical to the kind of narrow and precise legislation CDT says  
it would prefer.


Sincerely, and with respect to our friends at CDT,

Mike Godwin
Legal Director
Public Knowledge


--
-----
The Godwin's Law Blog can be found at http://www.godwinslaw.org .
-----
Mike Godwin can be reached by phone at 202-518-0020 x 101.
The new edition of his book, CYBER RIGHTS, can be ordered at
    http://www.panix.com/~mnemonic .
-----


-------------------------------------
You are subscribed as lists-ip () insecure org
To manage your subscription, go to
 http://v2.listbox.com/member/?listname=ip

Archives at: http://www.interesting-people.org/archives/interesting-people/