The rule at issue in Friday's decision would have required manufacturers to install special technology in new computers and televisions that would enable them to recognize a "broadcast flag" - specially embedded computer bits in the programs created by the studios and the networks. The new equipment would then restrict redistribution and reuse of the programs.
For years, the movie studios and television networks urged the commission to adopt the rule, citing the recording industry's experience with companies like Napster and saying restrictions on copying and distributing programs by consumers were essential to the transition from analog to digital television. They maintained that without the imposition of the broadcast flag, shows would be copied and then transmitted limitlessly through the Internet, much the way music is.
But the critics said that the studios and networks were unduly alarmist and that the new rule, which was to have taken effect July 1, would prevent consumers from copying and using programs for legitimate reasons.
Research librarians submitted affidavits in the case contending that the broadcast flag rule would make it impossible to distribute broadcast clips and other research material over the Internet to researchers and students.
Critics also maintained that the commission had overreached and had moved to regulate the Internet more tightly, ridiculing the agency in the aftermath of the rulemaking as the "federal computer commission."
hollywood wants to force DRM and copyright protections into broadcast television. we know that DRM never really works (someone always breaks it almost immediately), and merely places a burden on ordinary citizens' fair use rights. the court wisely struck down the rules, but not because broadcast flags suck: they did it because the fcc's jurisdiction is simply not that broad:
"You've gone too far," said Judge Harry T. Edwards during the oral arguments, as he pressed a government lawyer to justify how the agency could possibly set standards governing computers and the Internet. "Are washing machines next?"
But the breadth of Judge Edwards's opinion was more than many lawyers had expected.
"In this case, all relevant materials concerning the F.C.C.'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 F.C.C. 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," Judge Edwards wrote.
"And the agency's strained and implausible interpretations of the definitional provisions of the Communications Act of 1934 do not lend credence to its position. As the Supreme Court has reminded us, Congress 'does not ... hide elephants in mouse holes.' "His opinion, in American Library Association v. Federal Communications Commission, was joined by Judges David B. Sentelle and Judith W. Rogers.
