Intellectual Property Law

“Well, the FCC issued a regulation”

By Susan Crawford

And so even though the DC Circuit said the FCC didn’t have the jurisdiction to adopt that regulation, and Congress hasn’t acted to change that conclusion, Microsoft still apparently thinks its Media Center should acknowledge broadcast flags - preventing users from copying over-the-air digital broadcasts.

[DC Circuit to FCC:  Back Off, from the summer of 2005, describes the broadcast flag case, and I wrote frequently about this subject in 2003 and 2004.]

Now, MSN is free to decide to acknowledge flags.  The odd thing is that it has done so.  The concern back in 2003-04 of content companies was that no self-respecting consumer electronics provider would want to install flag-adherence (why would consumers view this as a positive?) and so the content people thought that a standard regulatory mandate was needed.  Now, a few years later, MSN has apparently decided it’s a value-add to voluntarily adhere to flags.

This could be because MSN thinks the entire MSN ecosystem is valuable enough that consumers won’t care about particular limitations on copying.  Or it could be because MSN plans to attack Google by aligning itself with the content industry.

But this isn’t happening because of the FCC, and MSN’s reliance on the (illegal) FCC regulation signals that MSN continues to have concern about user reaction to bossy copy-limitations.

Full post as published by Susan Crawford Blog on May 28, 2008 (boomark / email).