Court Says FCC Out-of-Bounds With Digital TV 481
USA4034 writes "A U.S. appeals court on Tuesday stated that regulators had overstepped their authority by imposing a rule designed to limit the copying of digital television programs." From the article: "The FCC rule aims to limit people from sending copies of digital television programs over the Internet. The FCC has said copyright protections are needed to help speed the adoption of digital television."
Re:But they didn't say ,"Stop!" (Score:5, Informative)
False, moderation notwithstanding. The term you're looking for is "facial challenge".
Re:But they didn't say ,"Stop!" (Score:4, Informative)
That is because America has a legal system based on the Common Law. Just like England and Australia.
Countries based on a Civil Law system such as France allow people to get rulings from a court prior to them performing an act. For example, if you were in France you could go to a court and ask "Can I download this file?" You will be given a definite "Yes" or "No" and that statement made by the court will be binding.
In order to solve this problem, Common Law jurisdictions have to develop an "Interpretations Court". What this court would do is allow people to ask whether it is legal to do what they want. Just like France.
The problem with implementing such a system is that it may be unconstitutional. The reason why it would be unconstituional is because the users of the lower court would want a binding affirmation, one that could not be overturned by the Supreme Court. This would be unsound in the terms of the Constitution. The Supreme Court is not meant to be bound by lower courts.
Re:Why? (Score:3, Informative)
It's amazing how many digital music services still use the line "CD-quality" to describe their programs when the original CD data has been heavily compressed. It may (or may not) sound reasonably good, but by definition it is not "CD quality".
The content cartel has no trouble spooking Congress with this "CD-quality" line when they wring their hands about peer-to-peer filesharing, even though the vast majority of music and movie files on P2P are very heavily compressed. Even the legal, for-pay services like iTunes and eMusic compress heavily. (There are a few notable exceptions, such as Magnatune, which make FLAC files available for download.)
The content cartel even managed a few years back to convince Congress to add "digital transmission" to the list of rights reserved to the copyright holder, over and above those that apply to ordinary analog broadcasting. This has resulted in substantially higher royalty rates for digital music broadcasters. Perhaps somebody should point this out to any Congressmen still wondering why digital broadcasting hasn't taken off yet.
Re:except that (Score:5, Informative)
is that not dictate how electronic devices must be made
NO IT"S NOT.
The FCC (generally) only has the authority to dictate the use of the electromagnetic spectrum.
THEY DON'T TELL MANUFACTURERS HOW TO BUILD THINGS.
They don't tell them how to build Xboxes, cellphones, etc.
They tell they that you device must be designed in such a way that it will meet with their regulations on the EM spectrum.
This is all they are allowed to do, BY LAW.
If "the people" (a term I use very loosely...believe me) decide that the FCC should actually be able to tell manufactures to respect the broadcast flag, the a law must be passed saying they have the authority to do so.
This is what the cellphone industry pushed through for scanners and thing is what the television industry will have to do:
Buy a law.
Isn't democracy grand?
Re:The FCC Is Folding With Four Aces (Score:3, Informative)
Re:But they didn't say ,"Stop!" (Score:1, Informative)
Notes from an information law student. (Score:5, Informative)
Re:What does this mean for the future of televisio (Score:3, Informative)
One word: tough. More words:
Re:But they didn't say ,"Stop!" (Score:5, Informative)
Actually, I don't see "God" repeated throughout the Declaration of Independence and the Constitution. The word "God" appears exactly once in the Declaration of Independence (in the phrase "Nature and Nature's God") and zero times in the Constitution. If anything, I'd say that makes "God" conspicuous by its absence.
Re:What does this mean for the future of televisio (Score:3, Informative)
Re:Why? (Score:3, Informative)
Then you either had a really high quality TV before the HDTV-era, or only watch NTSC-upsampled-to-HDTV-and-called-digital (actually pretty common, the majority of the broadcast "HDTV" channels do exactly that).
Personally, I went from a typical 29" NTSC TV to a mid-range 720p HDTV, and just watching progressive scan DVDs (aka 480p), I notice a drastic difference in quality. Not just some subtle improvement, but a night-and-day difference. And for console gaming, let me tell you, component-in 720p-capable games make the older generation of consoles look little better than an etch-a-sketch by comparison.
Re:North Korea resemblance (Score:3, Informative)
links:
http://edition.cnn.com/2004/WORLD/asiapcf/02/24/n
http://news.bbc.co.uk/2/hi/asia-pacific/4157121.s
http://www2.gol.com/users/coynerhm/north_korea_tv
http://nkfreedom.org/important_nk_topics.html [nkfreedom.org]
http://web.amnesty.org/ [amnesty.org]
Re:But they didn't say ,"Stop!" (Score:2, Informative)
One of things you are required to teach in California in the Government class, is that you DO NOT have to recite or participate in the pledge of allegiance, and you are supposed to learn about the original case that led to the supreme court ruling this unconstitutional.
One day, I was busy putting together my business plan that fell apart in my backpack during the pledge, and the teacher decided to make an example out of me, and gave me a referal for not performing the pledge.
He kept harrasing and gave me a referal every day. The administration also started harrassing me, and the vice principal went on record stating "The school board is going to review this case and see whether or not the supreme court ruling is relevant to this situation."
Despite the fact that several other faculty members (including the other governemnt and a history teacher) protested and lodged complaints with the administration on the actions being taken.
Some people may of heard of my High school; El Modena. They are most known for this:
http://www.asbj.com/2000/07/0700schoollaw.html
So, you do NOT in fact have a right to refuse to participate in the pledge. This is entirely dependant on the whims, ideals and opinion of the school. And if you are in a pro-christian school enviroment, you are either an ally, or an enemy.
The Separation of Church and State is in the constitution for a reason. Not because its a sophisticated peace of dialogue with some words that most have to look up in the dictionary.
But because the founding fathers left a country for the very reason they wished to include that passage.
Re:But they didn't say ,"Stop!" (Score:4, Informative)
Down at the bottom... (bold is mine)
I've seriously seen the above used to argue that God's divinity is recognized in the Constitution. (counter-argument: names of days and months in the Constitution recognize divinity of ancient Greek and Roman gods.)
Today is George Washington's bday.
W
lawyerly observations (Score:5, Informative)
I'm not surprised at all by the ruling that the FCC overstepped, we've been seeing quite a lot of rulings recently that agencies have overstepped their authority. Broadly speaking, administrative agencies cannot make choices *about* policy, but ponly about how to *implement* the policy given by Congress (or state legislatures). To significantly deviate from what can be done with other technologies is a policy choice, not an implementation choice, and would require a charge from Congress.
What i find odd is that the court ruled on these merits while still "concerned" about jurisdiction.
And that's when I looked closer.
The court didn't *say* anything today. Judges ask questions during oral arguments, some of which suggest a position. Often, the same judge will ask questions which make it sound like he holds conflicting positions. That's normal.
That said, the statement "You crossed the line," is a bit strong even for oral arguments, and does suggest that *that judge* is strongly leaning in thhat direction.
Still, though, the court has done *nothing* at this time.
I would be surprised, though, if the ruling doesn't come out before July 1. With two judges apparently leaning in a direction, the usual standards for a restraining order against enforcement of the law would seem to have been met.
As far as standing, I would expect (but certainly wouldn't bet my house on it!) that a single actual consumer as a petitioner would have standing to sue--the inability to buy devices currently on the market should be a sufficient real harm. An "assoiacion" is a much larger stretch. The courts are frequently hostile to such standing. That said, I can't tell from the slipshod reporting who the other petitioneers are. I'd be surprised if the lawyers for petitioners didn't bother to include at least one real person as a named plaintiff.
hawk, esq.
Re:But they didn't say ,"Stop!" (Score:3, Informative)
"A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."
Re:But they didn't say ,"Stop!" (Score:4, Informative)
Can you point out who it was that "voted" for the broadcast flag?
Oh, wait, that's right. It wasn't voted on. It was mandated by the FCC.