Since I know you were all at the edge of your seat waiting for this decision.
It's actually a pretty big one for us users:
May 6, 2005
Court Blocks TV Anti-Piracy Technology Rules
By STEPHEN LABATON
ASHINGTON, May 6 - A federal appeals court handed a major setback to Hollywood and the networks today when it struck down an anti-piracy regulation that required computer and television makers to use new technology making it difficult for consumers to copy and distribute digital programs.
The unanimous ruling by the three-judge panel in an important intellectual property case was a stinging rebuke to the Federal Communications Commission and a big victory for libraries, consumer groups and civil liberties organizations. They had maintained that the regulation, known as the "broadcast flag rule," would stifle innovation in technology and make it more difficult for consumers and users of library services to legitimately circulate material.
The studios and television networks had urged the commission to adopt the rule two years ago, saying that it was essential to the transition to digital television from analogue television. They maintained that absent the imposition of the broadcast flag, shows would be copied and then ubiquitously transmitted through the Internet much the way music has.
But critics said the new rule would prevent consumers from copying and using programs for legitimate reasons. In the case, which was filed by the American Library Association and a coalition of civil liberties and consumer groups, a number of research librarians submitted affidavits showing that the broadcast flag rule would make it impossible to distribute broadcast clips and other research material over the Internet to researchers and students. The plaintiffs also maintained that the commission had overreached and had moved to more tightly regulate the Internet, ridiculing the agency in the aftermath of the decision as the "Federal Computer Commission."
Under the rule, manufacturers would have been required, beginning later this year, to install special technology in new computers and televisions that would enable them to recognize specially embedded computer bits in the programs created by the studios and the networks. The new equipment would then restrict the programs from being distributed to other devices.
The outcome of the case was somewhat signaled when, during oral arguments last February in the United States Court of Appeals for the District of Columbia, the judges aggressively questioned F.C.C. lawyers about whether the agency had exceeded its authority by setting technical standards having nothing to do directly with broadcast transmissions.
"You've gone too far," Judge Harry T. Edwards said during the oral arguments, as he pressed a government lawyer to justify how the agency could possibly set standards governing computers and the Internet. "Are washing machines next?"
But the breadth of Judge Edwards's opinion today was more than many lawyers had expected.
"In this case, all relevant materials concerning the F.C.C.'s jurisdiction - including the words of the Communications Act of 1934, its legislative history, subsequent legislation, relevant case law, and commission practice-confirm that the F.C.C. 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," Judge Edwards wrote. "And the agency's strained and implausible interpretations of the definitional provisions of the Communications Act of 1934 do not lend credence to its position. As the Supreme Court has reminded us, Congress 'does not ... hide elephants in mouse holes."
His opinion, in American Library Association v. Federal Communications Commission, was joined by Judges David B. Sentelle and Judith W. Rogers.
The commission's top spokesman, David Fiske, said the agency did not have a comment about the decision and that the government had not decided whether it would seek an appeal either to the full court of appeals or to the Supreme Court. Some lawyers said they did not expect the Supreme Court would consider the case, as it does not satisfy the criteria for such review.
The broadcast flag rule was adopted in November 2003 at the urging of Michael K. Powell, the chairman of the agency at the time. It was supported by Kevin J. Martin, a commissioner at the time, who became chairman earlier this year.
Lawyers involved in the case said the fight would now shift to Congress, which is already weighing possible legislation on the digital conversion of television. In recent weeks, both sides in the lawsuit have been talking to lawmakers in anticipation of the ruling.
"Without a 'broadcast flag,' consumers may lose access to the very best programming offered on local television," said Edward O. Fritts, chairman and chief executive of the National Association of Broadcasters. "This remedy is designed to protect against unauthorized indiscriminate redistribution of programming over the Internet. We will work with Congress to authorize implementation of a broadcast flag that preserves the uniquely American system of free, local television."
Gigi B. Sohn, president of the digital rights advocacy group Public Knowledge, which led the fight against the broadcast flag rule, warned that intervention by Congress could create a new set of problems for consumers and innovators.
"If Congress starts to go down the road of giving the F.C.C. broad power over new applications and technologies, who knows what comes next?" Ms. Sohn said. "This case is about the future of technology."
Hollywood executives and their lobbyists predicted that if the rule was not resurrected by Congress, broadcasters would sharply limit the kinds of digital programs that they would transmit over the airwaves, and instead focus on cable and satellite services, where they have tighter control over what can be copied.
"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," said Dan Glickman, president of the Motion Picture Association of America. "It is important to remember that this decision is only about the F.C.C.'s jurisdiction, not the merits of the broadcast flag itself."
