The
US
communications regulator brought in the
"broadcast flag" rule in 2003, seeking to protect the copyright of
digital programming when received through regular broadcast
media.
It would have required all digital TV receivers manufactured
after 1st July 2005 – including televisions,
VCR
s, and
personal video recorders like TiVo – to read signals embedded in
over-the-air broadcast television shows that would place certain
limitations on how those shows could be played, recorded, and
saved.
The sale of any hardware that was not able to "recognise and
give effect to" the broadcast flag, including currently existing
digital and high-definition television (
HDTV
)
equipment and open source/free software tools, would also have
become illegal.
But this, said critics, would interfere with the legitimate
activities of technology innovators, librarians, archivists, and
academics. Furthermore, they argued, the FCC exceeded its
regulatory authority by imposing technological restrictions on what
consumers can do with television shows after they receive them.
Lobby groups Public Knowledge and the Electronic Frontier
Foundation therefore teamed up with a number of consumer, library
and technology groups to fight the rule in the courts, filing suit
in January 2004.
On Friday, the US Court of Appeals for the District of Columbia
unanimously agreed, ruling that the FCC overstepped its authority
when it asserted control over the design of any device capable of
receiving
HDTV
signals.
"The
FCC
has no congressionally delegated authority
to regulate receiver apparatus after a transmission is complete,"
said the court. "We therefore hold that the broadcast flag
regulations exceed the agency's delegated authority".
Public Knowledge President Gigi Sohn welcomed the ruling:
"This case is a great win for consumers and for technology
innovation. It's about more than simply broadcasting. It is about
how far the
FCC
can go in its regulations without
permission from Congress."
"Had the flag been implemented, Hollywood, acting through the
FCC
, would have been able to dictate the pace of
technology in consumer electronics. Now, thankfully, that won't
happen."
Dan Glickman, President and
CEO
of the Motion
Picture Association of America, called the decision
"disappointing," and warned that it could create a digital
television divide.
"Television audiences – whether they subscribe to cable or
satellite service or not - are benefiting from the higher quality
picture of digital programming," he said. "If the broadcast flag
cannot be used, program providers will have to weigh whether the
risk of theft is too great over free, off-air broadcasting and
could limit such high quality programming to only cable, satellite
and other more secure delivery systems."
The entertainments industry is more likely to plead their cause
before Congress than take the case to appeal, according to
commentators. Congress is already considering how best to regulate
the no-man's land that lies between the encouragement of innovation
and the upholding of intellectual property rights.
The
FCC
has yet to comment.
