While its customers are still puzzling over why Vista Media Center

is suddenly refusing to record over-the-air NBC digital TV, Microsoft has come out

with an astounding admission, courtesy of Greg Sandoval at CNet News:

"Microsoft included technologies in Windows based on rules set forth by the (Federal Communications Commission)," a Microsoft spokeswoman wrote in an e-mail to CNET News.com. "As part of these regulations, Windows Media Center fully adheres to the flags used by broadcasters and content owners to determine how their content is distributed and consumed."

Microsoft's statement shines light on how Microsoft expects Media Center to

behave. If this is the company's explanation for what users are seeing when attempting

to record digital NBC broadcasts over-the-air, then Microsoft is saying Vista

obeys the broadcast flag: a requirement rejected by courts and Congress.

The FCC regulation that Microsoft's spokesperson says

it follows is not in force - that is, there is no legal requirement

for them to follow these rules. They were rejected by the D.C. Circuit of Appeals

in a case brought forward by librarians, public interest and consumer groups

(including EFF and Public Knowledge). Microsoft is not complying with the FCC:

it is complying with the "broadcasters and content owners" who so dearly wanted

the flag in place, and failed to manage it.

Even if Microsoft somehow believes the FCC regulations still apply, they are going far beyond mere compliance. Here's the FCC's

href="http://w2.eff.org/IP/broadcastflag/20031104_fcc_order.pdf">rulemaking on

the flag:

In light of our decision to adopt a redistribution control

scheme and to avoid any confusion, we wish to reemphasize that our action

herein in no way limits or prevents consumers from making copies of digital

broadcast television content. ... [The aim of the broadcast flag] will not ... interfere with or preclude

consumers from copying broadcast programming and using or redistributing it

within the home or similar personal environment as consistent with copyright

law.

Here is Microsoft's interpretation of an over-the-air flag:







Note how Vista forbids recording this broadcast program at all: exactly what the FCC said the flag should not do. (The

broadcast flag requirements allowed you to record TV, but required the recorded

material be "protected" to prevent you from redistributing it beyond approved

and locked-down devices). In Microsoft's attempt to "fully adhere', they have gone

beyond what the FCC ever asked them to do: they have agreed to what broadcast and content owners could only dream of passing by fiat.

Microsoft's attempt to cover its behavior by claiming compliance with the

FCC neither explains nor justifies the errors that their customers are

currently seeing. The company needs to spell out exactly whose rules Vista is

following, and exactly how they affect their customers computers' current and

future behavior.