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FLASH!: Broadcast flag dead for now!
Posted 06 May 2005 - 09:06 AM
Posted 06 May 2005 - 09:25 AM
Posted 06 May 2005 - 01:01 PM
Presuming that this gets held up ultimately, it probably won't be necessary to to explicitly disable it. Just don't transmit the [copy protection=true] flag as part of the content. Unless it works that everything is presumed to be protected unless it receives a signal that it is copyable, in which case yeah, everyone is going to be screwed probably.
Will products that have already incorporated this silly flag now have it disabled?
Here is the official decision.
So in other words, the FCC said it had the power to enforce the broadcast flag because Congress didn't explicitly say they couldn't. The three people in long black robes obviously disagreed.
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.
The issue probably isn't dead yet though. As said on Groklaw, "Of course, now Hollywood will go to Congress and try to get what they want that way."
Posted 09 May 2005 - 12:49 PM
What we have today is the DCMA and encrypted transmissions. The way I see it is you can you can still legally receive any electromagnetic wave floating through the air but you cross the line if you attempt to defeat copyright protections or encryption. I can put a dish on my roof and legally receive everything D* and E* transmit but I can't decrypt and watch it unless they authorize me to, i.e. paying for it.
Regardless of whether the broadcast flag is a good or bad idea the judges appeared to have made a wise decision in interpreting the law and legal precedents. Personally I think it's a terrible idea. Hollywood will no doubt try to get the rules changed somehow and get a future ruling in their favor.
Posted 22 May 2005 - 08:29 AM
BTW, as I understand it, the "Broadcast Flag" was meant to prevent serial copying....copies of copies, so to speak. Like the SMS system in DATs and CDs, it would allow ALL copies, allow ONE Copy, or allow NO copies. So, for PVR use, or personal copying/time shifting, you would be allowed to do so.
But, hey, as long as the studios won't sell movies and other good stuff to the broadcasters without the BF, my HBO and Cinemax stocks will soar..........so, why should I care ? $$$$$$$$$