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Donna Wentworth
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Ernest Miller
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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

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May 3, 2004

The Broadcast Flag is Well-Designed Regulation

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Posted by Ernest Miller

Ed Felten continues his series on the recent Speed Bump conference at the Berkman Center with a discussion of some guidelines for designing efficient government regulations to support stopgap security measures (Regulating Stopgap Security). After pointing out a series of suggestions for making such regulations as effective as possible without unduly burdening technological progress, Felten concludes:

By this point, alert readers will be thinking "This sounds like an argument against the broadcast flag." Indeed, the FCC’s broadcast flag violates most of these rules: it mandates one technical approach (providing flexibility only within that approach), it creates compatibility barriers between compliant and non-compliant devices, and it shifts the long-term cost of compliance onto technology makers. How can the FCC have made this mistake? My guess is that they didn't, and still don't, realize that the broadcast flag is only a short-term stopgap.

Felten is certainly right that the broadcast flag violates all of his useful suggestions for regulators. He is mistaken, however, in believing that the FCC doesn't realize this "error." Read on...

The mistake comes from his assumption that,

government has some reason (which may be wise or unwise) to regulate, and that the regulation is intended to support those deploying stopgap measures to defend their systems.

Given that the FCC has already made an exemption to the broadcast flag for all devices manufactured before July 2005, they must certainly recognize that the broadcast flag won't even act as a stopgap if the purpose is to prevent HDTV from making it onto the internet. Even without this hole-you-can-drive-a-truck-through exemption, you'd have to be an idiot to think that the broadcast flag would prevent HDTV content from making it onto the internet. Since I don't believe that the commissioners are that stupid, I can only conclude that the FCC is acting quite cynically in support of an important constituency of theirs, the broadcasters *cough*regulatorycapture*cough*.

In other words, the purported purpose of the broadcast flag (to prevent HDTV from getting onto the internet) is not the real purpose of the broadcast flag, which appears to be to give content providers more control over the average citizen's ability to make use of media. If the real purpose is to control citizen's use of media, then all the regulatory guidelines Felten proposes are inverted.

Of course you want to mandate one technological approach (it provides the greatest control). Of course you want to create compatibility barriers (how else will you prevent most consumers from using devices that give them freedom?). Of course you want to shift the long-term costs away from the content creators (the consumers should ultimately pay for the broadcast flag, it is sort of like the efficiency you get from having condemned prisoners digging their own graves).

You see, actually, the broadcast flag is well-designed from a regulatory point of view, as long as you realize the real purpose of the broadcast flag.

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