[DMCA-Activists] Godwin on CDT Broadcast Flag Letter

[Seth Johnson]

-------- Original Message --------
Subject: [IP] more on   Open letter from CDT on broadcast flag
Date: Fri, 26 Aug 2005 13:53:54 -0400
From: David Farber <address@hidden>
To: Ip Ip <address@hidden>


Begin forwarded message:

From: Mike Godwin <address@hidden>
Date: August 26, 2005 10:08:06 AM EDT
To: address@hidden, Ip Ip <address@hidden>
Cc: address@hidden
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


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