This story appeared on Network World at

http://www.networkworld.com/columnists/2005/051605bradner.html

'Net Insider

Broadcast flag: Protecting the past

By Scott Bradner, Network World, 05/16/05

Scott Bradner

The U.S. Court of Appeals for the District of Columbia Circuit recently tossed out the FCC's attempt to provide a technical protection system for the movie industry (read the court's ruling). The court did not address whether the FCC's idea had merit; it ruled that the FCC blithely ignored Congressional limits on its authority when it mandated that "broadcast flag" support be included in a range of electronic devices starting this summer.

This is not likely to be the end of the story. The broadcast flag is a command inserted into a movie or other broadcast that can be used to tell receiving devices to limit the user's ability to make copies of the material. In late 2003, the FCC ordered that all devices that could be used to receive digital over-the-air broadcasts include logic to recognize and obey the broadcast flag command by July 2005.

Over-the-air broadcasts were the first target of the broadcast flag, but it would take someone of determined naiveté not to think that the movie industry would push to have the FCC mandate the same sort of flag processing for cable TV and other wired delivery methods if the technology proved itself on over-the-air broadcasts.

I wrote about the broadcast flag when the FCC first mandated it. At the time I wrote, "the FCC's order is not nearly as bad as the movie industry wanted it to be, but it's bad enough." But the new court decision does not address how bad the idea is - it just addresses the legal standing of the American Library Association (ALA), which instigated the lawsuit, and the authority of the FCC to control what devices can do with a transmission after receiving it.

The court basically said the ALA had standing because broadcasters could use the flag to stop librarians from making copies of parts of broadcasts that they are legally entitled to make. The court also said the statutes that empower the FCC to regulate communications limit it to dealing with transmissions up until the time they are received. The authority does not extend to controlling what happens after the reception. Because of this, the court ruled that the FCC exceeded its authority when it ordered that manufacturers support the broadcast flag. So the FCC mandate is gone, at least for now. The government might appeal the court decision, but it looks like a long shot. That doesn't mean this type of protection for old business models is dead. There is plenty of tradition behind getting Congress to protect those too stupid to adjust to new worlds. The chance that Congress will try to do this again is close to 100%.

Disclaimer: At least parts of Harvard are all about adjusting to new situations, but the above observation is my own.