Court yanks down FCC's broadcast flag

CNet reports In a stunning victory for hardware makers and television buffs, a federal appeals court has tossed out government rules that would have outlawed many digital TV receivers and tuner cards starting July 1.

This is a fantastic decision, and preserves the fair use of material broadcast on TV

The U.S. Court of Appeals for the D.C. Circuit ruled Friday that the Federal Communications Commission did not have the authority to prohibit the manufacture of computer and video hardware that doesn't have copy protection technology known as the "broadcast flag." The regulations, which the FCC created in November 2003, had been intended to limit unauthorized Internet redistribution of over-the-air TV broadcasts.

"The broadcast flag regulations exceed the agency's delegated authority under the statute," a three-judge panel unanimously concluded. "The FCC has no authority to regulate consumer electronic devices that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission." (Click here for a PDF of the decision.)

One result of Friday's ruling is that, unless it's eventually overturned by a higher court, the fight over digital TV piracy will return to Capitol Hill. The D.C. appeals court noted that the FCC "has no power to act" until "Congress confers power on it" by enacting a law explicitly authorizing the broadcast flag.

So Hollywood will have to try to bribe enough congressmen to pass a law authorizing it. Hopefully this will be difficult to do in a Republican controled congress that does not like Hollywood.

Under the FCC rules, starting in July digital TV tuner manufacturers would have had to include the broadcast flag. The flag limits a person's ability to redistribute video clips made from the recorded over-the-air broadcasts.

But in January, a coalition of librarians and public interest groups filed suit against the regulations, arguing that they would sharply curtail the ability of librarians and consumers to make "fair use" of copyrighted works and would curb interoperability between devices.

Good for them

Under the proposed rule, it would have become illegal to "sell or distribute" any product capable of receiving broadcast-flagged shows unless the product complies with the FCC's regulations. Such products could handle flagged broadcasts only in specific ways set by the government. Those essentially include delivering analog output without copy protection, digital output to a few low-end displays, or high-quality digital output to devices that also adhere to the broadcast flag specification.

In general, consumers would have been able to record broadcast-flagged shows and movies, but would only be able to play them back on the same device. The FCC rules specify that all devices must uniquely link "such recording with a single covered demodulator product, using a cryptographic protocol or other effective means, so that such recording cannot be accessed in usable form by another product."

Dan Gillmor blogged Now the entertainment cartel will have to get its wishes the old-fashioned way. It will have to attempt to verbally bludgeon or buy enough members of Congress to get an actual law passed, as opposed to the end run it pulled with its friends at the Federal Communications Commission, which enacted a rule giving the cartel what it wanted.

The broadcast flag rule was an amazingly brazen piece of work. It would force manufacturers of anything that could be used to receive or display a digital broadcast video signal to refuse to redistribute the video. In other words, you could watch the show but, if the copyright holder wished, you could not record it on your VCR or send it to another TV set.

The idea was to prevent unauthorized distribution, obviously, and it's easy to understand why the cartel worries about this. But the broadcast flag sent a message both to customers and innovative technologists: We are in a pay-per-view world of hyper-controlled media, if the copyright decrees it, and you may not do anything to save your fair use or other traditional rights unless we approve.

Now it's back to Congress, where the battles will continue -- and where this belonged in the first place.

geeknewscentral blogged geeknewscentral

OTB blogged While Dan Gilmour pronounces this, "A Win for Fair Use, Consumer Rights," it appears to be merely a very narrow, technical decision about the FCC's authority rather than about the rights of people who own software to make copies of it.

Jeff Jarvis argues that the entertainment industry ought to take this opportunity and figure out how to make a profit with it, rather than going back to Congress seeking protection.

Jeff Jarvis blogged No, no, no: The far smarter thing to do would be to turn around and ask how the entertainment industry can take advantage of this opportunity: You support free broadcast TV with advertising. You should find the way to support free distributed TV with advertising. That will be a lot easier -- and more lucrative -- than playing legal wack-a-mole. Wikipedia background here.

Ernie Miller blogged Read the 34-page decision by the DC Circuit Court of Appeals: American Library Association v. Federal Communications Commission [PDF]. He also has A LOT of links related to this subject.