May 6, 2005 9:52 AM PDT

Court yanks down FCC's broadcast flag

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 U.S. Court of Appeals for the D.C. Circuit ruled Friday that the Federal Communications Commission did not have the authority to prohibit the manufacture of computer and video hardware that doesn't have copy protection technology known as the "broadcast flag." The regulations, which the FCC created in November 2003, had been intended to limit unauthorized Internet redistribution of over-the-air TV broadcasts.

News.context

What's new:
A federal appeals court has squelched an FCC rule that would have required TV gear to use copy protection technology known as a "broadcast flag."

Bottom line:
The ruling is a big setback for Hollywood studios, which sought to limit unauthorized Internet redistribution of over-the-air TV broadcasts. But it's a reprieve for makers of HDTV sets, PC tuner cards, and USB and Firewire tuners.

More stories on this topic

"The broadcast flag regulations exceed the agency's delegated authority under the statute," a three-judge panel unanimously concluded. "The FCC 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." (Click here for a PDF of the decision.)

One result of Friday's ruling is that, unless it's eventually overturned by a higher court, the fight over digital TV piracy will return to Capitol Hill. The D.C. appeals court noted that the FCC "has no power to act" until "Congress confers power on it" by enacting a law explicitly authorizing the broadcast flag.

Under the FCC rules, starting in July digital TV tuner manufacturers would have had to include the broadcast flag. The flag limits a person's ability to redistribute video clips made from the recorded over-the-air broadcasts.

But in January, a coalition of librarians and public interest groups filed suit against the regulations, arguing that they would sharply curtail the ability of librarians and consumers to make "fair use" of copyrighted works and would curb interoperability between devices.

Friday's ruling represents a sizable setback for the Motion Picture Association of America, which had lobbied for the broadcast flag rules and had intervened in the lawsuit to defend them. But it's a reprieve for makers of HDTV sets, PC tuner cards, and USB and Firewire tuners--which will no longer have to redesign their products to comply with FCC rules.

special coverage
Finally, you are in control
Broadcast and cable networks are losing the ability to dictate programming. Also: What TVs to buy, and when.

James Burger, a lawyer at Dow, Lohnes and Albertson who opposed the broadcast flag on behalf of tech companies, said the FCC's legal theory was deeply worrying for computer makers.

"It would have turned the Federal Communications Commission into the Federal Computer Commission," Burger said. "Do you know of a computer now that doesn't touch the telecommunications infrastructure? The FCC was asserting jurisdiction over all information technology."

A digital game of capture the flag
Under the proposed rule, it would have become illegal to "sell or distribute" any product capable of receiving broadcast-flagged shows unless the product complies with the FCC's regulations.

Such products could handle flagged broadcasts only in specific ways set by the government. Those essentially include delivering analog output without copy protection, digital output to a few low-end displays, or high-quality digital output to devices that also adhere to the broadcast flag specification.

In general, consumers would have been able to record broadcast-flagged shows and movies, but would only be able to play them back on the same device. The FCC rules specify that all devices must uniquely link "such recording with a single covered demodulator product, using a cryptographic protocol or other effective means, so that such recording cannot be accessed in usable form by another product."

Broadcasters are not required to tag their shows and movies with the flag. It's up to each local station and network.

During oral arguments in February, the three judges on the appellate panel foreshadowed this week's decision by suggesting that the FCC had overstepped what the law permits.

"You're out there in the whole world, regulating. Are washing machines next?" asked Judge Harry Edwards. Quipped Judge David Sentelle: "You can't regulate washing machines. You can't rule the world."

Some manufacturers of HDTV tuner cards had planned to discontinue their current products because they did not recognize the broadcast flag.

"We don't support the flag in our current hardware, meaning that if there is flagged content, we'll ignore the flag," Nicholas Freeman of Elgato Systems said in an interview last month. "After July of this year, we wouldn't be able to manufacture it anymore."

Elgato sells the EyeTV line of products, which includes the EyeTV 500 HDTV tuner for the Macintosh. The EyeTV 500 does not abide by the broadcast flag restrictions.

42 comments

Join the conversation!
Add your comment
Wow...so there is such a thing as fair rulings?
That was very impressive. Now lets see if we can do something about a consumers bill of rights. K?
Posted by Jonathan (832 comments )
Reply Link Flag
What the court really said
was that the FCC had no authority to require the flag, not that the flag was unfair. Once congress passes a law instituting it, it will be game on for the greedy Entertainment industry. Just wait, soon your tivo won't let you skip commercials or record anything worthwhile, without paying extra for it anyway.
Posted by Gerald Quaglia (72 comments )
Link Flag
Wow...so there is such a thing as fair rulings?
That was very impressive. Now lets see if we can do something about a consumers bill of rights. K?
Posted by Jonathan (832 comments )
Reply Link Flag
What the court really said
was that the FCC had no authority to require the flag, not that the flag was unfair. Once congress passes a law instituting it, it will be game on for the greedy Entertainment industry. Just wait, soon your tivo won't let you skip commercials or record anything worthwhile, without paying extra for it anyway.
Posted by Gerald Quaglia (72 comments )
Link Flag
ruling is moot - Congress will overturn anyway
all manufacturers have put in CGMS-A -- Content Generation Management System for Analog at least 2 years ago. All dvd recorders have the analog flag built in. (CGMS-A standard was approved in 95? check out hbos new ban everything policy at www.hbo.com/corpinfo/faq/cgmsfaq.shtml#jump0.
Someone please let me know if there are any dvd recorders that didnt have the flag put in.
Posted by (6 comments )
Reply Link Flag
It takes a hell of a lot more to pass it through congress...
Learn how the system works...Its not that easy to pass it through congress and it will get a lot more attention too both of which the MPAA does NOT want. I can guarantee you that the nanosecond it hits headline news that a bill to keep joe consumer from recording what he/she want on TV the fhit will hit the san. Its one thing to dick with P2P networks its another to dick with dad's VCR\DVR setup.
Posted by Jonathan (832 comments )
Link Flag
ruling is moot - Congress will overturn anyway
all manufacturers have put in CGMS-A -- Content Generation Management System for Analog at least 2 years ago. All dvd recorders have the analog flag built in. (CGMS-A standard was approved in 95? check out hbos new ban everything policy at www.hbo.com/corpinfo/faq/cgmsfaq.shtml#jump0.
Someone please let me know if there are any dvd recorders that didnt have the flag put in.
Posted by (6 comments )
Reply Link Flag
It takes a hell of a lot more to pass it through congress...
Learn how the system works...Its not that easy to pass it through congress and it will get a lot more attention too both of which the MPAA does NOT want. I can guarantee you that the nanosecond it hits headline news that a bill to keep joe consumer from recording what he/she want on TV the fhit will hit the san. Its one thing to dick with P2P networks its another to dick with dad's VCR\DVR setup.
Posted by Jonathan (832 comments )
Link Flag
True.. true
As much as i agree the with first post.. the second is more likely to be true..

Bush has time and time again proven that Big money is the only thing he cares about.. the courts struck it down.. but Bush and Congress will take millions of dollars in lobbying money and then hide/sneak it into a bill to protect his intrests.

Sorry to say.. but anyone that thinks america stands for fairness and justice is wrong..

We are a country with a court system ruled by personal opinions of corrupt judges, and justice is dolled out based on how much money you have and who you are connected with.. and right now.. the rule of the land is Bush and his money/power friends.

So much for the pledge of allegiance.. "with liberty and justice for all" seems to have gone by the wayside to "with facisim and limited personal freedoms defined by a small minority of goverment and rich people for all".
Posted by (55 comments )
Reply Link Flag
Fatalistic?
>Bush has time and time again proven that Big money is the only
>thing he cares about.. the courts struck it down.. but Bush and
>Congress will take millions of dollars in lobbying money and then
>hide/sneak it into a bill to protect his intrests.

Maybe so, but average people (voters) react when things affect them personally. The changes the GOP are now trying to push hit too close to home, and many voters are beginning to have serious doubts about direction. Check out todays polls on Social Security. An overwhelming majority doesn't want it touched. The GOP does so at its own peril.

The HD recording issue is very similar. Do not tell Joe Sixpack that he CANNOT record his Raiders game in HD and view it later on whatever device he chooses in broadcast quality.

That's the issue, and if congress sides with the MPAA on it, you don't think Joe Sixpack will remember that in 2006?
Posted by (274 comments )
Link Flag
Incase you haven't noticed.....
The judges that are causing the problems were not put there by Bush. The whole point in the contraversy surrounding Bush's nominated judges deal with the fact that the liberal side of washington so desires to keep the staus quo and continue to use judges that will hand down decisions based on their own opinions.

There are plenty of better examples of washington idiocy that absolutely want nothing more than money from pacs. I would never doubt that Bush may take money from them and end up being manipulated by them to a point. But, Bush is just the one in the office that the moment. You really should be considering the heavy offenders here. People like Kennedy. Have you ever noticed that Kennedy seems to have a lifetime job in his chair. This kinda thing is exactly what the framers of our Constitution did not want. How much PAC money does Kennedy take? lol.....and Kennedy isn't nearly the only one. You want to bash on Bush. Tell me, who made Kennedy king? Lifetime? No president gets more than eight years. How much real damage has Kennedy (in his drunkeness) done? Why don't you actually "use" your internet connection and learn a little about some of the crippling things that Clinton did to hurt our beloved technology? Before I believe ANYTHING Gore says about the net, I would more likely believe that he just wants to "look" good. How much PAC money did the Clinton-Gore team get?

I want to make myself quite clear on this. I don't trust ANY politition. Liberal or Conservative. They are ALL corrupt. If that corruption doesn't exist before they get to washington, Washington will definately put it there. I don't agree with some of what Bush does, but Gore in office would have been like trying to polish a turd. I will never hold Bush up as a saint, but at the same time.....

You should not forget that it was the MPAA/RIAA that brought the federal government into this in the first place.

How much PAC money was there given to washington liberals by the MPAA/RIAA long before Bush ever came to Washington? How much of "that" PAC money went to the FCC to further the restrictive nature of the FCC? Before Bush came to Washington.
Posted by Prndll (382 comments )
Link Flag
True.. true
As much as i agree the with first post.. the second is more likely to be true..

Bush has time and time again proven that Big money is the only thing he cares about.. the courts struck it down.. but Bush and Congress will take millions of dollars in lobbying money and then hide/sneak it into a bill to protect his intrests.

Sorry to say.. but anyone that thinks america stands for fairness and justice is wrong..

We are a country with a court system ruled by personal opinions of corrupt judges, and justice is dolled out based on how much money you have and who you are connected with.. and right now.. the rule of the land is Bush and his money/power friends.

So much for the pledge of allegiance.. "with liberty and justice for all" seems to have gone by the wayside to "with facisim and limited personal freedoms defined by a small minority of goverment and rich people for all".
Posted by (55 comments )
Reply Link Flag
Fatalistic?
>Bush has time and time again proven that Big money is the only
>thing he cares about.. the courts struck it down.. but Bush and
>Congress will take millions of dollars in lobbying money and then
>hide/sneak it into a bill to protect his intrests.

Maybe so, but average people (voters) react when things affect them personally. The changes the GOP are now trying to push hit too close to home, and many voters are beginning to have serious doubts about direction. Check out todays polls on Social Security. An overwhelming majority doesn't want it touched. The GOP does so at its own peril.

The HD recording issue is very similar. Do not tell Joe Sixpack that he CANNOT record his Raiders game in HD and view it later on whatever device he chooses in broadcast quality.

That's the issue, and if congress sides with the MPAA on it, you don't think Joe Sixpack will remember that in 2006?
Posted by (274 comments )
Link Flag
Incase you haven't noticed.....
The judges that are causing the problems were not put there by Bush. The whole point in the contraversy surrounding Bush's nominated judges deal with the fact that the liberal side of washington so desires to keep the staus quo and continue to use judges that will hand down decisions based on their own opinions.

There are plenty of better examples of washington idiocy that absolutely want nothing more than money from pacs. I would never doubt that Bush may take money from them and end up being manipulated by them to a point. But, Bush is just the one in the office that the moment. You really should be considering the heavy offenders here. People like Kennedy. Have you ever noticed that Kennedy seems to have a lifetime job in his chair. This kinda thing is exactly what the framers of our Constitution did not want. How much PAC money does Kennedy take? lol.....and Kennedy isn't nearly the only one. You want to bash on Bush. Tell me, who made Kennedy king? Lifetime? No president gets more than eight years. How much real damage has Kennedy (in his drunkeness) done? Why don't you actually "use" your internet connection and learn a little about some of the crippling things that Clinton did to hurt our beloved technology? Before I believe ANYTHING Gore says about the net, I would more likely believe that he just wants to "look" good. How much PAC money did the Clinton-Gore team get?

I want to make myself quite clear on this. I don't trust ANY politition. Liberal or Conservative. They are ALL corrupt. If that corruption doesn't exist before they get to washington, Washington will definately put it there. I don't agree with some of what Bush does, but Gore in office would have been like trying to polish a turd. I will never hold Bush up as a saint, but at the same time.....

You should not forget that it was the MPAA/RIAA that brought the federal government into this in the first place.

How much PAC money was there given to washington liberals by the MPAA/RIAA long before Bush ever came to Washington? How much of "that" PAC money went to the FCC to further the restrictive nature of the FCC? Before Bush came to Washington.
Posted by Prndll (382 comments )
Link Flag
Finally!
The FCC does want to RULE THE WORLD, don't they? Ha! How quickly will they appeal this?


Sarah
sarahintampa.com
Posted by sarahintampa (2 comments )
Reply Link Flag
Finally!
The FCC does want to RULE THE WORLD, don't they? Ha! How quickly will they appeal this?


Sarah
sarahintampa.com
Posted by sarahintampa (2 comments )
Reply Link Flag
Head Congress off at the pass!
See here for how to help stop Congress from stepping in before it even becomes an issue:

<a class="jive-link-external" href="http://commonsmusic.com/blog/?p=21" target="_newWindow">http://commonsmusic.com/blog/?p=21</a>
Posted by (2 comments )
Reply Link Flag
Head Congress off at the pass!
See here for how to help stop Congress from stepping in before it even becomes an issue:

<a class="jive-link-external" href="http://commonsmusic.com/blog/?p=21" target="_newWindow">http://commonsmusic.com/blog/?p=21</a>
Posted by (2 comments )
Reply Link Flag
This "War" Will Fail Too
I expect that the MPAA and other lobby groups will keep going back, spreading more money to grease the wheels, until they get what they want. But like the government's war on drugs, war on poverty, war on cancer, war on war, attempts to prevent consumers from timeshifting will fail. It will take all of a week for some enterprising Chinese or Indians to make and sell digital-analog-digital capture/copy devices for $39.95 over the Internet. Sure, it will be a little more inconvenient but it will solve the problem.
Posted by Stating (869 comments )
Reply Link Flag
Indeed!
If you can see it and/or hear it, you can copy it. It's that simple. Most people don't care if the copy is inferior to the original.
Posted by zizzybaloobah (218 comments )
Link Flag
This "War" Will Fail Too
I expect that the MPAA and other lobby groups will keep going back, spreading more money to grease the wheels, until they get what they want. But like the government's war on drugs, war on poverty, war on cancer, war on war, attempts to prevent consumers from timeshifting will fail. It will take all of a week for some enterprising Chinese or Indians to make and sell digital-analog-digital capture/copy devices for $39.95 over the Internet. Sure, it will be a little more inconvenient but it will solve the problem.
Posted by Stating (869 comments )
Reply Link Flag
Indeed!
If you can see it and/or hear it, you can copy it. It's that simple. Most people don't care if the copy is inferior to the original.
Posted by zizzybaloobah (218 comments )
Link Flag
Fire Molly Wood
Fire Molly Wood.
Posted by montgomeryburns (109 comments )
Reply Link Flag
Fire Molly Wood
Fire Molly Wood.
Posted by montgomeryburns (109 comments )
Reply Link Flag
Judicial Activist --- Not
Judicial activism would make a law or find/deny a right that doesn't constitutionally exist. In this case, finding that the govermental power doesn't go that far is hardly activism. It's strict constructionism. Which, of course, I favor. :)
Posted by Gunga_Dean (2 comments )
Reply Link Flag
Judicial Activist --- Not
Judicial activism would make a law or find/deny a right that doesn't constitutionally exist. In this case, finding that the govermental power doesn't go that far is hardly activism. It's strict constructionism. Which, of course, I favor. :)
Posted by Gunga_Dean (2 comments )
Reply Link Flag
 

Join the conversation

Add your comment

The posting of advertisements, profanity, or personal attacks is prohibited. Click here to review our Terms of Use.

What's Hot

Discussions

Shared

RSS Feeds

Add headlines from CNET News to your homepage or feedreader.