A good property/cyberlaw connection for this week.  Courts often strongly discourage self-help in landlord-tenant disputes because of the risk of violence, even when the landlord and tenant have agreed in a lease that the landlord may retake if there's a breach of the lease conditions.  (Tomorrow's case:  Berg v. Wiley.) 

We just don't like vigilantes.  And we point to things like eviction summary proceedings as the place landlords should go.

In the copyright context, though, we're encouraging self-help by content owners by saying that technical copy protections are in effect the law of the land.  We say that it's too cumbersome to go to court and fight about each individual infringement.  Instead, just fix it through technology.  (Looking around, I find that Julie Cohen figured this out a while ago.  Maybe I can provide a different spin.)

In the broadcast flag setting, we've gone even further.  Not only are we saying that technical copy protection is the law of the land, but the FCC has attempted to claim that the flag has nothing to do with copyright.  So there's no chance that anyone could say "wait a minute, go to court before you say I'm infringing, don't prompt violence through self-help."  It's not about copyright.  It's about I Love Lucy.  It's about the American Way.  It's completely unconnected from legal liability rules.  "We have to use self-help," say the studios, "because otherwise broadcast television as we know it will cease to exist."

There's no contract in place between broadcasters and the public, as there was in the Berg case (a lease that had pretty clearly been breached).  There's no claim that copyrights are being infringed by non-compliant demodulators (because the FCC's jurisdiction would be weakened).  But self-help is being written into regulations nonetheless.  

Surely that's doubly wrong.  Self help is wrong in the first place (as the Berg court reminds us), but self help that claims no legal background for justification must be really wrong.