Saturday, February 19, 2005

Broadcast Flag Courtcase nears

A key development in one of the cases I'm studying for my dissertation is almost upon us: February 22 will bring opening arguments for the court case over the broadcast flag. Susan Crawford, who has done some of the best writing on this topic (both in her blog and in more formal, legal writing) highlights some of what's at stake here:

Like the Grokster case, the flag situation raises this question: can one industry force another to constrain new general purpose technologies in the name of copyright protection? Like the CALEA dispute (prompted by the demands of another great industry -- law enforcement), the flag represents an attempt to have high-tech innovators ask permission before innovating.
UPDATE: In "No Mandate for Broadcast Flag Tech Mandate" Donna Wentworth at Copyfight points to a number of good, recent pieces in anticipation of tomorrow's oral arguments: an NYT article, "Struggle over digital-tv control" (which does a decent, though uncritical, job of highlighting the major positions in the case) and two responses to the article. One, from Mike Godwin, BitTrickling Into the Times (clarifying his quotes in the article), and a more critical post by Ed Felten, "Broadcast Flag in Court", questioning the logic of the official MPAA explanation of the need for the flag. For example:

"Even ignoring the Flag's many technical loopholes, the best it could possibly offer is the same level of protection that cable content gets today. The evidence is overwhelming that that level is insufficient to keep programs off the P2P networks. Remember Huff? The real story here, for an enterprising reporter, lies in how the MPAA convinced the FCC to mandate the Broadcast Flag despite offering only these weak arguments in the public proceeding."

Meanwhile, Dan Gillmor, in "A Biased Headline Twists a Story" demonstrates the power of titles. While the version of the NYT article that Donna pointed to (linked via the International Herald Tribune) had the relatively neutral title "Struggle over digital-tv controls heads to the courts" the headline actually found on the NYT site is, "Federal Effort to Head Off TV Piracy is Challenged," which as he points out has quite a different connotation:

The story itself isn't bad. As the reporter discusses (though not in much depth), there are many good reasons why this anti-copying system, called the "Broadcast Flag," is a travesty -- including its attack on fair use, for scholarship and creating new art, not to mention the peculiar notion that technology companies now need permission to innovate.

But the headline is poison. By defining the debate in terms of preventing piracy -- when the story could have as easily, and accurately, been headlined as "Hollywood Move to Block Technological Innovation is Challenged" -- it sets a tone that even a fair article has trouble balancing back to an honest discussion.


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