the broadcast flag
rule in November, 2003. This rule, adopted by the U.S. Federal
Communications Commission, mandated that digital television systems
implement and honor a flag, embedded within the TV signal, which would
forbid copying or further redistribution of the content. This rule, in
effect, forbids the creation of free television demodulator systems. No
source-available system could implement the broadcast flag in a way which
meets the "robustness rules" set out by the regulation.
The DC Circuit Federal Court of Appeals made short work of this rule; the
full ruling is available in
PDF format. The decision is clear and narrow:
We can find nothing in the statute, its legislative history, the
applicable case law, or agency practice indicating that Congress
meant to provide the sweeping authority the FCC now claims over
Thus, the broadcast flag is dead, because the FCC has no authority to
make that particular regulation. The court offers no opinion on whether
the concept of a broadcast flag is defensible or not - it was not asked to
consider that issue. All that has been decided is that the FCC has no
authority to give the entertainment industry veto power over our gadgets.
For the time being, digital TV systems implemented with free software are
The next move in this game is obvious: the entertainment industry will go
to Congress seeking a law which either (1) gives the FCC the authority
to regulate devices which are not actually transmitting or receiving
signals, or (2) implements the broadcast flag requirement directly.
Cory Doctorow has claimed
that the industry will not succeed in this goal:
The next move here is that the studios will take this to Congress
and try to get a law passed to make this happen. No chance. They
got ZERO laws passed last year. This year the best they've been
able to accomplish is making it slightly more illegal to videotape
movies in the theatre.
The fact is, elected lawmakers are not suicidal enough to break
their constituents' televisions. Watch and see: over the next year,
we're all going to roast any lawmaker who so much as breathes the
words "Broadcast Flag" in a favorable tone.
This view is probably overly optimistic. Experience says that the
purveyors of ideas like the broadcast flag never give up; they bring their
proposals to Congress over and over until the opposition has, finally, been
worn down. The broadcast flag may well be defeated next year, but it will
be back the year after that. Until elected representatives (and the wider
world) understand why things like broadcast flags are such a bad
idea, we will have to keep fighting this battle.
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