Broadcast Flag Knocked Back By US Court

Today, the US Court of Appeals for the DC Circuit ruled that the US FCC (Federal Communications Commission) does not have authority to prohibit companies from making computer and video hardware that doesn’t comply with the Broadcast Flag. This was to come into effect on 1 July, this year.

As far back as 2002, representations were made to the FCC by the content industry to restrict the use video content on US Digital TV sets, as the Broadcast Protection Discussion Group, as it was named then, crossed the line“.

Despite having had some notice on this, today’s ruling will be a shock for content owners.

We spoke to John Enser, Partner in Media and Communications at Olswang, “It isn’t the first time that the FCC have had one of their decisions overturned. There are usually two type of ruling; a firm no, or a softer ‘you haven’t done it right this time, but there may be ways it can be done.’ This at first glance, this looks like a firm no.”

We equated it to either a door being slammed, or it being politely pushed closed, but left ajar. It appear as if it’s the big slam.

Is this the end of the road for the Broadcast Flag? Probably not thinks John Enser, “They can either appeal, or they could go back to Congress to give them the powers.” We’d imagine it’s probably more likely Congressmen will be getting phone calls today as content owners are fierce lobbyists in Washington. When we put this to Cory Doctorow, European outreach officer of the EFF he felt it was less likely, “The only option open to Hollywood is to find a senator so suicidal that they are prepared to force a law that will break their delegates television sets.”

Ren Bucholz, EFF Policy Co-ordinator, America told us that the EFF were “shocked and delighted” by the ruling. In particularly “by the pro-public interest language used” and “unanimity of all three judges voting the same way.” He went on to wonder what it meant to the future of the FCC, “possibly leading to a trimming of their wings.”

A number of calls to the MPAA were not returned before publication.

As to what will happen to all of the TV and computer equipment that has been manufactured in readiness for 1 July is unclear, as is whether the FCC will be compelled to rebate the manufacturers of the effected equipment.

We’ll leave the closing words to Cory Doctorow, “Now the Broadcast Flag is dead, it is essential that the content industry doesn’t introduce the same restrictions into Europe, via the back door of the DVB specification.”

Court ruling FCC

(photo credit: Electronic Frontier Foundation)