State Super-Duper Laws
There is a bill sitting on the desk of the Governor of Ohio awaiting signature. It is not very long:
1) “Audiovisual recording function” means the capability of a device to record or transmit a motion picture or any part of a motion picture by means of any technology existing on, or developed after, the effective date
of this section.
(2) “Facility” includes all retail establishments and movie theaters.
(B) No person, without the written consent of the owner or lessee of the facility and of the licensor of the motion picture, shall knowingly operate an audiovisual recording function of a device in a facility in which a motion picture is being shown.
(C) Whoever violates division (B) of this section is guilty of motion picture piracy, a misdemeanor of the first degree on the first offense and a felony of the fifth degree on each subsequent offense.
(D) This section does not prohibit or restrict a lawfully authorized investigative, law enforcement, protective, or intelligence gathering employee or agent of the government of this state or a political subdivision of this state, or of the federal government, when acting in an official capacity, from operating an audiovisual recording function of a device in any facility in which a motion picture is being shown.
…
This means that no one can show anyone in a retail store how a VCR works. No one can use a phone that can stream TV or other video images in a store. No one can take a still picture in a store in which a movie is being shown on a TV screen — without permission. How does this work? Why wouldn't this act be preempted by the Copyright Act? Why is it that we seem to need permission to do everything?
The text must be directed at people pointing cameras towards the screen in movie theaters, but it is drafted so badly and so broadly that it is hard to tell. I suspect that the governor will sign this bill, saying “I'm against piracy.”
It looks as if copyright (or “paracopyright”) is becoming the broadest set of laws we have.
New tack on the broadcast flag
After wandering around for a while today, I think a good approach to the broadcast flag issue is to compare it to the tobacco jurisdiction wars. I think I will suggest that “if FDA cannot regulate cigarettes, FCC cannot regulate consumer electronics devices.” This should be sufficiently incendiary (so to speak).
The argument would be that courts shouldn't defer to agencies' broad/strained construction of their basic statutes where Congress has created a distinct regulatory scheme of its own. In tobacco, the Congressional scheme was called the Alcohol and Drug Abuse Amendments (and several other tobacco-specific pieces of legislation); in the broadcast flag arena, the Congressional scheme is called the Copyright Act. Although (perhaps) Congress may not have rejected proposals to give FCC jurisdiction over copyright protection, that's only because such a request would have been outlandish. But Congress (and the Library of Congress) clearly exercise authority over copyright policy. And I'm sure the FCC has said over the course of the broadcast flag wars that it has no jurisdiction over copyright. The recent Order is an abrupt about-face.
Additionally, the tobacco companies argued that Congress could not have intended to delegate a decision of such economic and political significance to an agency “in so cryptic a fashion.” And the Supreme Court found that the FDA's reading of “safety” throughout the FDCA act was extraordinarily strained. Here, similarly, regulating all consumer electronics devices has enormous economical and political consequences for the US — and the FCC's reading of its statute is contortionist.
The other appealing thing about writing about tobacco and copyright is that both issues have been so heavily and expensively (and elegantly) lawyered. It helps to have the biggest, most influential lobby in town — if you're the Tobacco Institute, you can get the Court to shut down the FDA, and if you're the MPAA you can get the FCC to jump.