The broadcast flag is out, for now

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected the Federal Communication's Commission's "broadcast flag" rule yesterday. [Opinion here.] Ernie Miller is tracking the online press reports.

The "broadcast flag" is a copy protection mechanism for digital TV broadcasts. The FCC's regulations required manufacturers of digital TV receivers to design their products to recognize when a digital TV transmitter had set the "broadcast flag" on a digital TV signal. If the digital TV receiver detected the "broadcast flag," it was required to send the content only to certain digital outputs that would recognize the broadcast flag or to an analog output. It permitted receivers to record the TV broadcast only if they could do so in a way that would make it impossible for another device to copy the recording.

In other words, the rule is designed to prevent people from recording a digital TV transmission on a computer and then sharing it with anyone else or taking clips from it. The rule works by requiring manufacturers to make equipment in a way that honors the demands of TV producers.

The Court of Appeals held that the FCC lacked authority to regulate what equipment does to recordings of transmissions after receiving them. The FCC's job is to regulate how transmissions work, not how people use recordings.

The FCC may continue to press the case, and the intervening Motion Picture Association of America (MPAA) will most likely request en banc review or petition the Supreme Court for certiorari even if the FCC does not. If the courts deny further review or decide against the MPAA and FCC, the MPAA will lobby Congress to extend the FCC's authority. MPAA could ask Congress to codify the broadcast flag regulations in a statute, but it might prefer to have the FCC continue oversight of the rules and retain the ability to change them.

I oppose the notion that the MPAA should dictate how computer equipment is built and how it treats data, and I don't like what I perceive to be a general atmosphere of overreaching at the FCC, so I like the D.C. Circuit's ruling. I also think it's founded on good legal analysis and reached the right conclusion as a matter of law.

The "broadcast flag" regulations appear in the Code of Federal Regulations at 47 C.F.R. 73.9000-73.9009 and 47 C.F.R. 76.1901-76.1909.

See also Susan Crawford's discussion of the ruling and FCC jurisdiction, with a link to her article on the topic.