December 6, 2022

Dare To Be Naive

Ernest Miller at CopyFight has an interesting response to my discussion yesterday of the Broadcast Flag. I wrote that the Flag is bad regulation, being poorly targeted at the goal of protecting TV broadcasts from Internet redistribution. Ernie replies that the Flag is actually well-targeted regulation, but for a different purpose:

[Y]ou’d have to be an idiot to think that the broadcast flag would prevent HDTV content from making it onto the internet. Since I don’t believe that the commissioners are that stupid, I can only conclude that the FCC is acting quite cynically in support of an important constituency of theirs, the broadcasters *cough*regulatorycapture*cough*.

In other words, the purported purpose of the broadcast flag (to prevent HDTV from getting onto the internet) is not the real purpose of the broadcast flag, which appears to be to give content providers more control over the average citizen’s ability to make use of media.

Ernie’s theory, that the movie industry and the FCC are using “content protection” as a smokescreen to further a secret agenda of controlling media technology, fits the facts pretty well. And quite a few experienced lobbyists seem to believe it. Still, I don’t think it’s right to argue against the Broadcast Flag on that basis.

First, even if you believe the theory, it’s often a useful debating tactic to pretend that the other side actually believes what they say they believe. It’s hard to prove that someone is lying about their own beliefs and motivations; it can be much easier to prove that their asserted beliefs don’t justify their conclusions. And proving that the official rationale for the Flag is wrong would do some good.

Second, if Ernie’s theory is right, the fix is in and there’s not much we can do about future Broadcast Flag type regulation. If we want to change things, we might as well act on the assumption that it matters whether the official rationale for the Flag is right.

And finally, I am convinced that at least some people in the movie industry, and at least some people at the FCC, actually believe the official rationale. I think this because of what these people say in private, after a few (literal or metaphorical) beers, and because of how they react when the official rationale for the Flag is challenged. Even in private, industry or FCC people often react to criticism of the official rationale with real passion and not just with platitudes. Either these (non-PR) people are extraordinarily good at staying on-message, or they really believe (as individuals) what they are saying.

So although Ernie’s theory is very plausible, I will dare to be na


  1. Ernest: FWIW, your post is spot-on with industry strategy. But back to this issue of Washington tactics.

    The FCC has a culture, and it’s part of a broader Washington culture. Inside of this culture, certain patterns of speech are pervasive. In comparison, Microsoft has a culture they call Micro-speak. Hackers have their own culture of communication.

    When you say the FCC is acting cynically, are you saying that relative to FCC and Washington culture or are you saying that relative to YOUR culture.

    At Microsoft, when someone said, “We’re acting in the best interests of customers.” this was code for, “This strategy will take-away some business angle for a competitor (which helps us) while simultaneously offering a feature at a low price to our customers (AKA ‘the whole world’). In the short term, the customer benefits. In the long term, Microsoft benefits from the lack of competitors.” Microsoft senior managers trained their subordinates to say the abbreviated phrase as part of daily life, so that when the Microserfs were communicating with friends, family, and non-company employees they would instinctively rattle off the same language. The influence was subtle, but always present. And the FCC has the same set of norms for communication.

  2. Cypherpunk and Steve, I’ve written my response to your comments in some depth here:

    Why Use DRM If It Doesn’t Work?

    Perhaps I am holding the FCC up to a standard it can’t meet. However, that only feeds my argument that they are acting cynically. What else is double-speak but a synonym for cynical?

  3. Why Use DRM If It Doesn’t Work?

    In the ongoing debate about cynicism and the broadcast flag, see here (More on Cynicism, Indecency, the FCC and the Broadcast Flag), Freedom To Tinker (Dare to be Naive), and Furdlog (Cynical or Naive?), one point has come up that…

  4. To Ernie’s point: “If they were being honest and forthright, the FCC would be claiming that the purpose of the broadcast flag was to prevent the average consumer from making HDTV broadcasts initially available on the internet, though it would do little about the problem of subsequent indiscriminate redistribution.”

    –> I think you’re holding them to a standard they can’t live up to. There is so much double-speak in Washington and so few people understand the real details of these special interest areas that the language has to be framed in popular (tactical) language for winning arguments.

    The “agenda setters” use the language they think is most appropriate for winning their argument. Two scenarios explain most of the behavior of the people influenced by the agenda setters. First, non-agenda setters frequently take cues from senior people. Second, non-agenda setters are frequently involved in developing the messaging. Either way, it’s not surprising that non-agenda setters believe in the argument. Because they don’t think about the argument using the same mapping of terms to results that Ed Felten, you, or I do.

  5. The reason that the companies think the broadcast flag will help them is that it will help them.

    The broadcast flag provides a basis for litigation by the MPAA against any company that makes a consumer device that easily puts HDTV broadcasts on the Internet. Think TiVo with a web publishing wizard. That’s what the the industry wants to make absolutely certain they stop now. It protects their US DVD rental business among the “paying class of customers”.

    The “fix has been in” for decades. No centuries. The MPAA is repeating the same stunts they’ve been using for years. The regulation language matures slightly because of general improvements over time in handling special cases.

    Is this just obvious to me, and not to others, because I worked in industry on the side that told the lobbyists what to do?

  6. The thing I don’t understand is this. Suppose the worst, that the FCC is in the movie companies’ pocket. And suppose the companies just want to stop consumers from putting their HDTV recordings on the net. And suppose that the companies know that this won’t stop redistribution, because of the various loopholes that Ernest lists.

    What, then, is the motivation for the movie companies? Why are they expending their political capital on a measure which would not benefit them? If they don’t think the BF is going to reduce the quantity or quality of piracy, then I don’t see why they would be pushing it so hard.

    IMO, Seth has it right. Rightly or wrongly, the companies have a genuine belief that the BF will help them. That’s the only thing that explains their actions.

  7. More on Cynicism, the FCC and the Broadcast Flag

    Earlier this week, I wrote about my belief that the FCC’s true reasons for supporting the broadcast flag are not the purported reasons used to justify that support (The Broadcast Flag is Well-Designed Regulation). As Donna notes below (Plus Dessert),…

  8. Plus Dessert

    …from MIT’s Frank Field, who nicely synthesizes the recent discussion happening here, @ Freedom-to-Tinker and @ the Lessig blog: The stakes in the fight are not making sure that [our opponents’] ideology eventually falls; rather it’s all about figuri…

  9. Thanks, Paul. See this posting.

  10. This is entirely unrelated, but I’m hoping Ed will notice this link –,2645,63298,00.html

    California appears to have made a huge step forward in terms of having proper elections. But I’ve seen no mention of this from you, or – I almost didn’t believe it was true when I read it. Comments? It seems like this would warrant a post.

  11. This is the argument where I’m just not sure it’s 100.0% right, and can easily see a suit disbelieving it.

    It’s the “speed bumps” argument. That if you put tiny barriers – teeny, tiny, difficulties, ones which are no problem from an abstract technical standpoint, but are just irritations – it has enough of an impact to be practical in terms of preserving profit.

    The problem here for technologists is that their reply tends to be to repeat an abstract answer – that in theory, as a logical problem, the result is zero.

    But it’s not theory, it’s practice. Maybe it’s “marketing”. I can certainly see suits believing a marketing analysis over a technical one.

  12. The FCC talks about the broadcast flag as a solution to copyright piracy, as a means to prevent “indiscriminate Internet redistribution.” No, it won’t. Period.

    It doesn’t stop any internet distribution whatsoever, once the programming is put on the internet. Given what we know of DRM systems (they all eventually fail) and the fact that there are a couple of major loopholes in the broadcast flag (for things manufactured before July 2005 and things manufactured for export), they must realize that HDTV signals will make it onto the internet. Once a signal is on the internet, the broadcast flag will do nothing to inhibit its redistribution.

    If they were being honest and forthright, the FCC would be claiming that the purpose of the broadcast flag was to prevent the average consumer from making HDTV broadcasts initially available on the internet, though it would do little about the problem of subsequent indiscriminate redistribution.

  13. “I choose cynicism over a belief that an entire organization of putatively smart people can be so deluded.”

    From the “suit” perspective, it’s hardly clear that the techie arguments are so utterly and obviously right. I suspect quite a few them factor-in the dot-bust and IT’S-A-NEW-ERA crash, into how seriously they take the technologists (maybe unfairly, but understandably).

    Do remember that for a few years, it was almost civil-libertarian gospel that the Internet could be easily and cheaply controlled by authorities we liked, but not for authorities we didn’t like – and the logical contradiction there was handled by an instructive combination of wishing it were so, and attacking people who pointed out it wasn’t so.

  14. You’re absolutely right, but I think that all arguments are useful. Yes, the means of the broadcast flag don’t meet the purported ends is a great argument and one that should continue to be made, and perhaps should be the primary argument. It doesn’t hurt, however, to note that the means seem to suit a more dastardly aim even better.

    As far as the fix being in, well, I pretty much think that there is a fix. The MPAA and its FCC allies decided that there was going to be a broadcast flag, and thus, we have a broadcast flag, regardless of the merits of the argument.

    Do some people in the MPAA and FCC actually believe their arguments that the broadcast flag will keep HDTV off the internet? Probably. But they’re either deluded or fools. I choose cynicism over a belief that an entire organization of putatively smart people can be so deluded.