A Win for Fair Use, Consumer Rights

CNet: Court says FCC's 'broadcast flag' is toast. In a stunning victory for television buffs and hardware makers, a federal appeals court has tossed out government rules that would have outlawed many digital TV receivers and tuner cards starting July 1.

Now the entertainment cartel will have to get its wishes the old-fashioned way. It will have to attempt to verbally bludgeon or buy enough members of Congress to get an actual law passed, as opposed to the end run it pulled with its friends at the Federal Communications Commission, which enacted a rule giving the cartel what it wanted.

The broadcast flag rule was an amazingly brazen piece of work. It would force manufacturers of anything that could be used to receive or display a digital broadcast video signal to refuse to redistribute the video. In other words, you could watch the show but, if the copyright holder wished, you could not record it on your VCR or send it to another TV set.

The idea was to prevent unauthorized distribution, obviously, and it's easy to understand why the cartel worries about this. But the broadcast flag sent a message both to customers and innovative technologists: We are in a pay-per-view world of hyper-controlled media, if the copyright decrees it, and you may not do anything to save your fair use or other traditional rights unless we approve.

Librarians and others concerned with restoring some balance in copyright sued to block the FCC's rule, and the court has agreed (here's a PDF of the ruling; 116k). From the ruling:

The FCC argues that the Commission has “discretion” to
exercise “broad authority” over equipment used in connection
with radio and wire transmissions, “when the need arises, even
if it has not previously regulated in a particular area.” FCC Br.
at 17. This is an extraordinary proposition. “The
[Commission’s] position in this case amounts to the bare
suggestion that it possesses plenary authority to act within a
given area simply because Congress has endowed it with some
authority to act in that area. We categorically reject that
suggestion.

Good stuff. Now it's back to Congress, where the battles will continue -- and where this belonged in the first place.

Comments

[LR]

And the sound of pages turning is heard as hundreds of readers rush to get out their dictionaries and look up "plenary".

Apparently it means "complete in every respect".

[Heather Green]

There is no doubt that Hollywood is not going to head to Congress, where, as you say, they should have gone in the first place. It should be a fight, if consumers understand what's at stake for them. But this time, at the very least, these discussions will be out in the open, in front of the public. That's what was so incredible about the Broadcast Flag group of Hollywood, CE, and tech companies that eventually spit out this thing. They were all behind closed doors essentially deciding on what fair use would be for the public. Amazing.

[Heather Green]

Err, I meant, NOW is going to head to Congress.

[Jim Hill]

The important thing is that Hollywood will have to pay for this legislation through the normal bribery process rather than through backroom meetings and promises of key lobbying jobs after life in "public service".

Yay, America.

[Ran Talbott]

"Hollywood will have to pay for this legislation through the normal bribery process"

Or they'll get Ashcroft to give a speech at the Heritage Foundation speculating that swarthy men with suspicious-sounding names might conceivably use steganography to embed diagrams of Disneyland and Turkish airbases in pirated copies of "Despearate Housewives" posted to alt.binaries.tv.epidoes. Then the PATRIOT renewal will inlude a provision making possession of a non-DRMed receiver will be a ticket to Gitmo.