Wendy Seltzer, lawyer for the EFF (join here), talks about the drive to mandate building restrictions devices into hardware that plays media content.

The broadcast flag requires HDTV devices to check for a “do not redistribute” flag in the content they receive. With the flag, they can’t output high-def digital or record it. She says that this mitigates against open source software since it is modifiable; all tuners would have to be closed source. “In the post broadcast flag world, no one can bulid a TiVo without first asking permission from the FCC.”

Until July 1, 2005, it’s capable to manufacture HDTV tuner cards that ignore the broadcast flag, and they’ll work fine after the regulation goes into effect. So, stock up on those HDTVs now, kids!

Don Marti asks if the restriction applies to drivers. Wendy thinks not. Interesting line of thought… (Don says: “Any DRM system effective enough to work is effective enough to destroy civilization.”)

Wendy says the EFF is challenging the ruling in court but is also building lots of devices that show what can be done if the technology is allowed to remain open.

A discussion ensues about the value of DRM and the strategies for combatting it, from “working with it” to hoping that we’ll “route around” the broadcast flag. (IMO, “routing around it” means becoming a cultural hermit, which will seem like a viable option mainly to hardcore DeadHeads.)

Wendy differentiates two issues: First, copyright holders should be able to protect their content. Second, the government shouldn’t mandate restricted devices to enforce a particular copyright regulation scheme.

Don says that the content it’s most important for you to be able to reuse is precisely the content that people want to restrict you from using.

These are preemptive restrictions — prior restraint — says Wendy. Ray Ozzie says that we’ve had prior restraint frequently in the communications field, e.g., CALEA. VoIP will be regulated and Skype will be put out of business, he thinks. This is not something that makes him happy.

The conversation devolves into a discussion of whether DRM is good or bad. The actual point is, I think, that – granting that artists should be able to protect their copyrights – having the government design and mandate a particular technological solution is a bad idea, first because the government isn’t good at tech design and, second, because the chosen implementation will restrict us from doing things that move culture forward.

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