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In 2002, the EFF was advised that Senator Ernest Hollings wrote a letter to the FCC advocating immediate implementation of a "broadcast flag" mandate, demanding that all manufacturers immediately implement a kind of 'over the air' copy protection.

Ignore, for a moment, the fact that no copy protection has ever proven effective on any modern analog or digital medium. Suspend your disbelief, it gets better.

This broadcast flag comes from the Broadcast Protection Discussion Group, a group of Hollywood studios that came up with a way from them to protect and lock down the movies they produce when broadcast over the air; what they're doing now is, has been, and continues to be to get the US Government to enforce, in law, the standards put forward by this group.

Put forward, it's important to note, and ignored by the hardware implementors.

This is the digital equivalent of the US government mandating specific TCP headers and trying to implement a law forcing all companies producing routers for sale in the United States to implement TCP in a special way just for that market.

Let's also ignore, for a moment, the fact that NTSC, the last great standard to come out of the US, is completely nonexistent in Europe, that we don't share a digital TV standard, that european DVB-T and DVB-S, not to mention the digital audio technologies, have nothing in common. Nor do our cell phones, for the most part, where there is essentially zero GSM integration in the US, and where the 3G standard is led by a US consortium and a completely different standard than the rest of the world. It's important to keep this in mind - the FCC has essentially been a complete failure:

• It has failed to take any US standard or technology and successfully deploy that technology worldwide;


• It has failed to use any standard created outside of US soil successfully as an FCC-mandated protocol.

Seen in this light, there is no reason to expect that Europe would ever pick up the changes being recommended by this group, regardless of the FCC's actions - the mere acceptance of this proposal by the FCC will not 'pollute' the decisionmaking of the much more disconnected actions of the rest of the world's governments and systems of standardisation, all of which are simultaneously more open and more implementation-led.

However, ever the poodle, some members of the EC in 2001 proposed a new treaty to WIPO to protect the rights of broadcasters over use of their broadcasts (PDF). Nevermind that this would never get through the EU itself - as was the likely interest in the first place - and the closest they could get to an EU implementation was trying to push it through WIPO instead of the European Union's actual parliamentary process. The EC hadn't a shot in hell, and they knew it; WIPO was their best bet for backdoor entry, and WIPO's hands are already more than a little full.

However, let's suspend disbelief again. Because this isn't actually about copy-protection or fair use. This is, specifically, about a group of non-technical people producing a technical solution outside of industry forums.

The people who've come up with this aren't technical, really; like the clipper chip, the idea is to mandate the requirement for the flag, and demand that the techies come up with a solution to making this actually be copy-protectable in real life. This isn't about letting the industry come to its own mechanisms, it's about imposing one externally.

This is, ultimately, why it must fail. This is, ultimately, why we haven't had something like it to date - because it's not in the manufacturers' interests to do this. Nor in the consumers who buy the manufacturers' products.

This is, mostly, a reaction by Hollywood to rampant piracy of movies, and the fear that movies will be the next big Kazaa breakthrough as bandwidth increases, download times decrease, and peer to peer technology continues to become more pervasive.

As with the DMCA, though, there's more to the story - because it turns out that it's the movie industry that's actually responsible for these things ending up on the internet anyways - that most of the movies you download will have come directly from someone who had access to the film. They are, in this case, their own worst enemy. It's the equivalent of someone inside Sony Music being found responsible for ripping and pushing their latest CD releases over Kazaa before the CD is on sale in the stores.

But punters are the ones that will take the punishment - by way of this 'flag'. It doesn't matter that the content they're locking up isn't the content that everyone is so busy 'stealing' - that ccontent, from inside the industry itself, would land on our desktops without ever having been touched by that flag, without ever having been broadcast. The content they want to protect is being stolen long before then.

Nor will it prevent us from downloading the episode of Angel, Buffy, or Smallville that we missed - because open source software is already rushing to fill the void left when TiVO sold its soul to commercial interests, or when Microsoft stepped in with their next big dumbing down of that market. And unlike them, the open source movement isn't likely to pay a whole lot of attention to a bunch of flags preventing fair use. If they want to sell their DVDs of season 1, perhaps they should do it after Season 1 is actually on television, and not sometime after they air Season 5.

I have every belief, and no doubt, that this will go the way of region-coding. Most of us bought our home DVD systems pre-chipped, region-free. From the stores. Who hacked up our hardware before selling it to us. The days where companies could produce a piece of hardware with measures preventing fair use to us like some kind of 'closed box' that none of us could un-fuck-up are over. DVD players should have proved that.

And yet, here we are again, with a company insisting it's possible to lock up content with yet another flag, insisting that all it needs is the manufacturers. "Ignore that man behind the curtain", they say. Just follow the yellow brick road. Fantasies - it didn't work last time, and it won't work this time.

So, ever the community-savvy bloodhound, they've put their ears to the ground. The FCC gave their notice of proposed rulemaking (NPRM) "In the Matter of Digital Broadcast Copy Protection" (Media Bureau Docket No. 02-230). A period of public comment.

And so public comment time it is; alongside the EFF's comments (PDF) on the broadcast flag, EPIC did the same.

But the fight isn't over; the decision is about to be made; I encourage you to take immediate action on a decision that will either impact us all, or just result in governments wasting millions in an effort to stop us from doing something that, inevitably, they can only fail at doing. Use this form to send an E-mail to the FCC with your opinion. The following is the text of mine:

Let's make this absolutely crystal clear:

• If your rules are such that they obstruct fair use, developers like me *will* code around them.
• If you make it illegal, we will develop it abroad - there are more than a few of us expats who develop software with the clear understanding that what we are doing you work real hard to make illegal.

We developers will not allow the American legal system to remove our rights over our fair use of our own property. More importantly: much of what you're "protecting" is product-placed, ad-filled advertising, however entertaining it may be. Let's not pretend for one minute that we don't know that. THIS CONTENT IS NOT "FREE" - IT COMES WITH THE INTENDED PSYCHOLOGICAL EFFECTS. We go out and buy what we see; we emulate the lives we watch. We buy the products in the ads, convinced of whatever it was we were meant to be convinced of. Pretending that we're "stealing" by cutting out advertising, or recording for our own use regardless of medium, is foolish at best, disastrous at worst, and cannot and will not work.

Companies are no longer responsible for feeding us breakthroughs. They fed us the tools - we buy our computers from them. The difference between 20 years ago and today is that we're no longer reliant on them for everything we do with that product; and the open source community will continue to support free communication, free speech, and right of use of our own property regardless of what you manage to push into our own ever more draconian legal system.

Specifications, like the ones you're working on, will become more and more pointless - standards that are implemented and ignored, or at worst, end up like the Clipper chip. Standards organisation after organisation has fallen to the self-organising mass known as the IETF - not because it's a better standards organisation, but because it's an open system of standardisation without an agenda. Protocols survive only because they're useful. The internet not only fosters that kind of activity, it actively encourages it. That "organised anarchy" succeeds specifically because it provides a process for others' work to interoperate and standardise - the opposite approach from what you're taking, where the views of the few, projected onto the needs of the many, stand to once again create another standard which we, the newly empowered generation of developers, have no qualms, no issues, and no inhibitions about coding around and dissolving.

You cannot protect their "right" to control our actions or curb our fair and legitimate use - that right is not only nonexistent (they haven't got it) but unenforceable (it can never be enforced). No law would have prevented region coding from being a complete failure; no law can prevent this from following in its footsteps.

The difference between twenty years ago and today, with regard to this specific issue, is that your rules won't actually be able to grant that control over our actions, regardless of the standard you produce. We no longer live in that time, and the days when those doors could remain closed are long gone, the technology freed into the hands of far too many to control so easily.

Go on. Try it and find out.