FCC Broadcast Flag Struck Down

An anonymous reader writes "CNet is reporting that the courts have struck down the FCC's broadcast flag requirement! '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.'" The EFF has details on the flag, the official ruling is online for examination, and commentary is available from BoingBoing and Ars Technica.

These Activist Judges

[nate nice (672391)]

We really need to do something about them as they are obviously out of control. Don't they know who pays for their appointers election?!

Re:These Activist Judges

[ShaniaTwain (197446)]

..at least now they can get back to the important work of protecting the people from dangerous exposure to nipples.

Re:These Activist Judges

[Have Blue (616)]

The FCC has legal authority, but it doesn't need constitutional authority. It was created by an act of Congress, not by executive fiat. There are all sorts of entities in the government that aren't mentioned in the constitution but are allowed to set policy and enforce penalties if it is disobeyed.

Remember that the courts can only affect issues that are brought to their attention. If you think the FCC has overstepped its authority in other areas, file more lawsuits.

Re:These Activist Judges

[rjh (40933)]

Check the United States Constitution, wherein all executive power is vested in the President. Like it or not, all executive power is vested in the Oval Office. If the president wasn't ultimately responsible for the actions of the FCC, the FCC would have no authority whatsoever.

You could just as easily say that the powers of the United States Treasury are delegated to it by the Treasury Act. That doesn't mean the Secret Service is a Congressional authority.

They didn't strike it down!

[by Anonymous Coward]

They just set it to 0.

Awesome!

[stlhawkeye (868951)]

This is great news. I don't doubt that illegal distribution of copyrighted materials is a problem that costs content-owners money, but this flag is not the solution. It's going to mostly penalize and restrict the rights of legitimate and honest viewers who don't do anything criminal with their recordings, they just re-watch them.

The onus is on the industry to find a solution within technology and capitalism, not within politics and law.

Re:Awesome!

[drunkennewfiemidget (712572)]

...It's going to mostly penalize and restrict the rights of legitimate and honest viewers ...

But hasn't that always been the issue with such nonsense laws?

• They make it illegal to redistribute DeCSS code so people can't copy DVDs, when most people being hurt by it are the opensource people who just want to watch their damned DVDs in Linux.
• They've suggested charging small amounts of money per e-mail to curb spammers, when the people most hurt by it will be those of us who e-mail a lot for legitimate, useful reasons.
• They run those obnoxious commercials before movies at the theatres telling us why pirating is bad, and wasting our time, despite the people guilty of these acts are the ones at home watching the movies on their computers, not the ones who paid $11 so they can sit through the movie.

One bad apple spoils the bunch.
Either that, or the people passing these laws desperately need to give their heads a shake.

At last, a win for you poor Americans.

Won this battle but not the war

[flanksteak (69032)]

So it's nice that this lost, but it lost because the court said the FCC has no jurisdiction. This wasn't a victory for fair use, nor is it the end of the discussion. The MPAA will return to hammering Congress to either make the rule itself or grant the FCC the authority to do so (which the article clearly states at the end). This just gives us more time to get the word out about why the flag is a bad idea.

Re:Won this battle but not the war

[MobyDisk (75490)]

Good to see skepticism, but you missed what is significant here.

The FCC has been extending its power significantly, with the broadcast flag being just a small piece of that. The courts telling the FCC that they do not have this power is huge. It eliminates the possibility of the FCC taking away citizen's rights without the democratic process being involved. At least Congress persons are answerable to their constituents. The FCC is not. (This is the whole problem with Congress creating agencies. It's a way to extend government power without making it answerable to the other branches.)

Now is the time to start sending positive letters to justices and congress persons to prevent Congress from trying to enact the broadcast flag themselves.

Corporations can't vote

[notcreative (623238)]

You can be unhappy with the way your fellow citizens vote, but corporations aren't electing these people into Congress. Other people in your community are. If you don't like that, don't sit on your beanbag and complain about how corporations are destroying the country. Go out and tell people why they should vote the way that you want them to. Money is just a megaphone. If you're spouting garbage, it will just make the garbage stinkier.

It's funny how the things that are beyond our control are the things that we'd otherwise have to get off our buns and do something about.

Lawyer: a bit more on the type of ruling

[hawk (1151)]

I am a lawyer, but this is not legal advice. If you get your legal advice on slashdot, you're likely to end up as a "guest" of the government.

This is the stronger of the two main ways that the court could have struck down the ruling. Often, it's the *form* of the rule, in paraticular the way the administrative agency chose to make the rule, that gets struck down. This leaves the agency free to pass the same rule through the proper process. (Similar to the way the appellate court struck down the judge's behavior in the microsoft case--the governmet could have sought another order splitting microsoft.)

In this case, it's the *substance* of the rule that was stricken. The FCC *cannot* regulate in this area, and cannot try again.

However, this didn't adress the question of whether or not Congress could grant the power to regulate in such an area, nor whether Congress could pass such a law itself.

hawk, esq.

Temporary until Congress acts

[hirschma (187820)]

Since the entire American government is owned by corporate interests, it'll take about 5 minutes for this to get passed by Congress.

I'd hope that the consumer electronics lobby is stronger than the MPAA, but I fear it isn't so.

jh

Loss for words

[dlZ (798734)]

Now what am I supposed to do with the warehouse of capture cards I bought to resell after this passed!?

A collection of highlights from the case

[The Importance of (529734)]

I've put together a collection of links as well as pulling out various key elements of the case: Victory in Broadcast Flag Case! FCC Has No Authority Says Court [corante.com]

It's not over yet

[Trailer Trash (60756)]

And it never will be until the slimeballs behind this (movie industry) get what they want. They are willing to pay more and wield more influence than the electronics makers. Watch for some legislation to be bought soon.

What about the TV distribution pipeline

[SiliconEntity (448450)]

Wow, that's great news, but isn't it coming a little late in the timeline? If sets on sale in July were supposed to have BF support, you'd think that they would already be being manufactured that way. The TV makers would have had to already have designed BF circuitry into their sets and be producing them with that capability, if all the sets in the stores by July were supposed to work that way, as required by the law.

I wonder if there will be a way to disable BF circuitry in sets which get sold that already have it built in? Or will the makers even tell people that they are buying sets that are BF enabled? Maybe some people will buy them without even knowing it.

Some remarks.

[pavon (30274)]

This was originally posted [slashdot.org] on slashdot when the case started, and it is excellent news to hear that the FCC regulation was indeed overruled. It is important to note that this case was about whether the FCC had the jurisdiction to impose such regulations, not on the legality of the regulations themselves. If congress decided to pass a law requiring the broadcast flag, it would probably stand.

As an aside the American Library Association (ALA) has been very active [ala.org] in working to protect our fair-use rights and trying to make copyright law more balanced, even though they might not be as well known here as the EFF and ACLU are. I would highly encourage anyone who cares about these things to help support them [ala.org].

Sliding my donation over to the EFF

[zulux (112259)]

No more donating to the ACLU for me - it's all EFF from now on.

The ACLU was needed in the age of McCarthy, but the work of the EFF seems more beneficial to me right now - in the short as well as the long term.

Go GNU Radio!

[YetAnotherName (168064)]

Because the broadcast flag was so technically feeble, it required "robustness rules" to actually enforce it. In other words, equipment manufactures would have to "weld shut" their devices to prevent user tampering. This would've spelt disaster for GNU Radio [gnu.org], which lets you define an ATSC HDTV receiver in software.

As open source, it fails the robustness rules. Heck, as open source, it even encourages "user tampering." With today's victory the project has some hope, and we can see some future innovations exploiting it.

Get your facts straight, already

[fm6 (162816)]

CNet is reporting that the courts have struck down the FCC's broadcast flag requirement!

You make it sound like there's been a final determination that we just can't have a broadcast flag. Not correct. A particular appeals court is saying that the FCC currently doesn't have the authority to impose the broadcast flag. That court could be overruled. Or Congress could give the FCC the authority. Given the politics of our current Congress, that's very likely.

We have stories about the Federal legal decisions almost every day. Yet Slashdotters (and worse, the Slashdot editors) manage to read all these stories without learning anything about how the courts work. Pretty pathetic.

What about the firewire port on cable boxs?

[gremlins (588904)]

Well I am happy there isn't a broadcasting flag anymore but what about firewire ports on cable boxes?

If you look at the ruling "FCC Eases Digital TV Transition for Consumers."(PDF) [fcc.gov] it states that all digital cable boxes must have a firewire port. This port is used to control the box and record from it. Now this has been in effect for a while now, although it takes alot of effort and showing your cable company this [fcc.gov] pdf article to get them to give you a box that has a firewire port and that port is enabled. My concern is the ruling seems to also removes the FCC's power in this area as well.

And the worst part is MythTV [mythtv.org] just started supporting recording over firewire...

this gives us more opportunity

[geekoid (135745)]

as citizens. We have more power with congress then the FCC.

AS always write, fax, email. Maintaining freedom takes regular work, few hours per week.

Yes and No.

[Qwerpafw (315600)]

The courts struck down the broadcast flag because the FCC was getting too big for their britches. They got all up in there, and the Judge was like "no you didn't." Judges do that a lot--watch Judge Mathis to see what I mean.

The courts didn't say that the broadcast flag was illegal because it interfered with fair use rights. While the effects of this ruling are to encourage consumer rights, that hardly seems to be the intent of the judgement. The fact is, the FCC was never supposed to make these kinds of rules--and someone finally called their bluff.

Re:Yes and No.

[badasscat (563442)]

The courts didn't say that the broadcast flag was illegal because it interfered with fair use rights.

And this is important because what the court in essence did was throw the issue back to Congress - where copyright issues constitutionally belong. If you think the broadcast flag is dead, think again - all the court said was "this is unenforceable as an FCC rule - only Congress can make such a rule."

So you can bet the MPAA is on the horn right about now to every senator and representative they've ever donated money to trying to call in a favor. And you can bet they'll get that favor, probably sooner rather than later. There are still almost two months before that July 1 deadline - it is not just possible, but probable that the broadcast flag will still take effect on that date, this time enacted by congress and signed into law by Bush himself.

Re:To all those "activist judges" out there

[lax-goalie (730970)]

Ermmm, these judges actually took a "strict constructionist" approach. Congress didn't give the Executive Branch the authority to regulate, so the Court properly slapped the FCC down.

Ain't nothin' "activist" about this.