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Court blasts FCC on broadcast flag

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A controversial US Federal Communications Commission (FCC) regulation that would have required all hardware capable of receiving broadcast transmissions to recognize a so-called broadcast flag, or DRM signal, starting in July 2005, has been shot down by the US Court of Appeals for the District of Columbia, Reuters reports.

The court ruled that FCC had "exceeded the scope of its delegated authority" with the regulation, promulgated in 2003. 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," the three-judge panel concluded.

FCC's pretext for the regulation has been that broadcast DRM will accelerate the spread of digital TV by reassuring the media behemoths that their content can't be easily pirated. Hollywood has been a good deal more up-front about things, fretting openly that digital broadcasts of TV and movies will inevitably lead to mass piracy via the internet.

The court challenge was led by the American Library Association (ALA), chiefly on grounds that the broadcast flag would inhibit fair use for library, other nonprofit, and educational purposes. A good deal of broadcast material is used in distance learning, for example, and this could be made unavailable by provisions in the DMCA, a concern that the court found persuasive, according to ALA Legislative Counsel Miriam Nisbet.

Of course, this victory only moves the battle to Capitol Hill, where the entertainment cartels have historically enjoyed near invincibility. The simplest and most direct approach would be to propose legislation giving FCC the authority to regulate broadcast receivers, and this is to be expected fairly soon. But whether it will be a slam-dunk is anyone's guess. "People are a good deal better educated about this than they were a few years ago," ALA's Nisbet observes.

And less indifferent, we hope. ®

Update Although the case is titled American Library Association et al v. Federal Communications Commission et al, several petitioners collaborated in the suit. The parties were Public Knowledge, the Association of Research Libraries, the American Association of Law Libraries, the Medical Library Association, the Special Libraries Association, the Consumer Federation of America, Consumers Union, and the Electronic Frontier Foundation (EFF). ALA, which we identified above as the organizer, is listed first in court documents because of its alphabetical rank. The Register regrets the oversight.

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