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Broadcast Flag Nixed by DC Circuit of the US Ct. of Appeals
Friday, May 06 2005 @ 01:10 PM EDT

Cory Doctorow on BoingBoing has the news and the ruling:

This morning, the DC Circuit of the US Court of Appeals struck down the loathsome Broadcast Flag, ruling that the FCC does not have the jurisdiction to regulate what people do with TV shows after they've received them.

My first day on the job at EFF was at the first meeting where they were negotiating the Broadcast Flag, a set of rules for restricting the features of digital television devices to those that were approved by the Hollywood executives who tried to ban the VCR. The rules set out to ban the use of Open Source/Free Software in digital television applications, and to require hardware components to be designed to be hard or impossible to create open drivers for. Fox exec Andy Setos told me that we were there to create "a polite marketplace" where no one would be allowed to disrupt his business model without getting his permission and cooperation first (cough planned economy cough commies cough).

I'm honored and thrilled to have been part of the gigantic upswelling of public outcry over this naked attempt to bootstrap the studios' limited monopoly over copying movies into an unlimited monopoly over the design of every device that might be used to copy a movie. . . .

"In the seven decades of its existence, the FCC has never before asserted such sweeping authority. Indeed, in the past, the FCC has informed Congress that it lacked any such authority. In our view, nothing has changed to give the FCC the authority it now claims."

You can read the entire decision here [PDF]. More over on BoingBoing (scroll down a couple of stories). Here's the Conclusion section, for those who don't like or can't read PDFs:

III. CONCLUSION

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. Agencies owe their capacity to act to the delegation of authority” from Congress. See Ry. Labor Executives’ Ass’n, 29 F.3d at 670. The FCC, like other federal agencies, “literally has no power to act . . . unless and until Congress confers power upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). In this case, all relevant materials concerning the FCC’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 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.

Because the Commission exceeded the scope of its delegated authority, we grant the petition for review, and reverse and vacate the Flag Order insofar as it requires demodulator products manufactured on or after July 1, 2005 to recognize and give effect to the broadcast flag.

So ordered.

Of course, now Hollywood will go to Congress and try to get what they want that way.


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