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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

« DRM Is Not a Contract | Main | Dear Recording Industry: You're Being Had »

October 10, 2005

Stopping the Signal: Broadcast Flag Update #2

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Danny O'Brien has another update on the relentless Capitol Hill machinations to force through the Broadcast Flag. It helpfully unravels two mysteries:

Question #1: Why did 20 representatives send an open letter pledging their allegiance to the Flag? Hint: it wasn't due to an overwhelming groundswell of support from their constituents.

Question #2: Why did PFF's Patrick Ross suddenly take it upon himself to argue, unconvincingly, that the DMCA is somehow about ...the freedom to contract? Hint: it wasn't because he just, you know, wanted to express himself.

Answer #1: Why did those 20 reps send an open letter? Because the Broadcast Flag isn't a slam dunk. As Danny points out, the entertainment industry lobbyists are tallying their support, but they haven't yet convinced everyone they need to convince:


The letter is short, with a single substantive talking point. If Congress doesn't deliver a Broadcast Flag pronto, warns the letter, content producers will abandon free, over-the-air broadcast TV.

To pound home this dire threat, the phrase "free, over-the-air television" is repeated no fewer than eight times -- with four repetitions in four consecutive sentences. It's a little like the local racketeer rustling up extra protection money by emphasizing over and over how beautiful your precious Ming vase is, and what a tragedy it would be if anything were to happen to it.

But no matter how many times this threat is repeated, it's not even close to credible. The corporations that make up the MPAA have been threatening to boycott digital TV for years, without ever actually managing to stop broadcasting. Of course, Mr. Upton doesn't really need convincing, anyway. He's already gone on record as supporting the Broadcast Flag.

So why are 20 House representatives writing him a public letter? Because Mr. Upton is the one who needs a show of support.

You see, it appears that the MPAA and RIAA may have a problem with the House of Representatives.


Which brings us to Answer #2: Why did Patrick Ross suddenly write a piece passionately defending the DMCA? Because the "problem" is Congressman Joe Barton:

The driver of digital TV legislation in the House is Joe Barton, Chairman of the Commerce Committee. And if what we hear through beltway back channels is true, Barton wants a deal. He believes that if the MPAA wants the Broadcast Flag in his bill so badly, it should be willing to compromise.

Specifically, in exchange for movement on the Broadcast Flag, Congressman Barton may be asking for movement on HR 1201 -- a bill that seeks to protect people who are excercising their fair-use rights from liability under the DMCA.

In other words, if government-mandated DRM + the DMCA remove your rights, Congressman Barton wants a way for you to take them back. Which Patrick Ross tells us is bad because it infringes upon...the freedom of corporations to impose a unilateral "contract." Which would clearly harm consumers, because they would otherwise benefit from continued "innovation" in the booming removing-consumer-choice sector.

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