The DMCA and the broadcast flag
The bill formerly known as Induce is steaming through Senate processes, and is now scheduled for a markup next Tuesday the 21st (see Ernie Miller and EFF for details) despite thousands of calls from concerned people.
I spent a couple of hours talking yesterday to a small group about the broadcast flag. The group came up with a series of hypotheticals — what if you're a TV manufacturer who refuses to build to the broadcast flag standard? Are you liable under the DMCA as well as the flag rules? (Because the broadcast content was never encrypted — you received it in the clear — you're not circumventing controls over it.) What if you're a software developer who sends around freeware that will allow users to get around the flag? Again, is this a violation of the DMCA? What if you give advice about how to avoid the flag? Liable, and if so how? If the suit challenging the flag is successful and the flag regime is declared beyond the FCC's jurisdiction, it's not clear that the DMCA will cover these situations.
What's useful about the bill-formerly-known-as-induce to the content industry is that it provides cover if the flag fails. It would fill in secondary liability holes left by the DMCA. The text of the bill is a moving target, but its overall goal is clear: leave no liability unaddressed.
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