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[Phoenix]

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."

Source

Court ruling (PDF)

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.

So while this protects us for a little while, that doesn't mean that Bush and Co won't just grant the FCC the authority to do this.

 

[demi]

in english please

 

[borghe]

in english please

broadcast flag violates fair use.

- or -

you can't add something like this in 8 years after a technology goes live.

 

[xsarien]

in english please

The FCC tried to assert authority it didn't have in the first place.

 

[Phoenix]

broadcast flag violates fair use.

That might be a bit of an overstatement. The courts ruling didn't go that far (didn't have to). They just said "you don't have the authority now go away" without considering the fair use issue at all.

 

[borghe]

That might be a bit of an overstatement. The courts ruling didn't go that far (didn't have to). They just said "you don't have the authority now go away" without considering the fair use issue at all.

it might be a bit of an overstatement, but really that is where the majority of the argument came from. This response from the court seems more like a politically finesse way of taking the same action without pissing off Hollywood.

The broadcast flag was contended so highly because of its potential (and likely) violation of typical fair use.

 

[impirius]

"Federal Communications Commission" not "Federal Digital Rights Management Commission"

This is a great ruling! I hope that it is upheld and that Congress doesn't act to grant the FCC authority to legally pull the same stunt.

 

[Pimpwerx]

The FCC tried to assert authority it didn't have in the first place.

IOW, the FCC was being the FCC, but finally got slapped down for it. PEACE.

 

[Phoenix]

it might be a bit of an overstatement, but really that is where the majority of the argument came from. This response from the court seems more like a politically finesse way of taking the same action without pissing off Hollywood.

The broadcast flag was contended so highly because of its potential (and likely) violation of typical fair use.

Of course. This is similar to the courts action with the Pledge of Allegience case - find a way to toss the case without actually ruling on its merits

 

[DarienA]

AWESOME, that Broadcast Flag idea, I couldn't friggin believe it....

+1 courts It's nice to hear about a decision that makes sense....

 

[CaptainABAB]

I just hope Congree isn't dumb enough to add this power to the FCC.



...actually, they are dumb enough to do that. I just hope they are too lazy to do so.