Supplemental Brief of Petitioners in American Library Association et al. v. Federal Communications Commission, et al., commonly known as the Broadcast Flag Court Challenge.
The full text of the brief is available here (PDF).
Summary of Argument
Petitioners have standing to bring this appeal. The FCC’s Broadcast Flag rule will not just harm all consumers and librarians who legally use electronic equipment and copyrighted material affected by the Flag scheme, it will specifically injure Petitioners’ members in a number of particularized and concrete ways. These harms fall clearly within the long line of federal appellate court decisions recognizing Article III injuries-in-fact to consumers and others affected by agency rules. Consistent with the Court’s request, Petitioners are today providing thirteen affidavits demonstrating specific harms to their members.
For instance, the Flag rule will foreclose numerous legal uses that Petitioners’ librarian members currently make of copyrighted material. The North Carolina State University Library (“NCSU”), a member of Petitioner Association of Research Libraries (“ARL”), currently assists its faculty in making clips of broadcast television shows such as Univision’s El Show De Christina available for distance learning students—a protected use under the TEACH Act. Because the Internet is used to make the clips available, however, the Flag will prevent this educationally beneficial activity.
Likewise, member libraries at American University (“AU”) in Washington, D.C. and at the University of California, Los Angeles (“UCLA”) assist their faculty in making video programming available over the Internet and on computers for educational purposes. The Television News Archive at Vanderbilt University (“Archive”), another ARL member, sends licensed news programming to over 140 subscribers over the Internet, and makes available a video version of its entire collection over on-campus computers. Each of these uses of broadcast content would be precluded under the Flag scheme, either because they require Internet use or because they employ non-Flag-compliant equipment that would have to be replaced under the FCC’s rule.
Petitioners’ consumer members will suffer in just as many particularized— and profound—ways under a Flag regime. Members such as Professor Lawrence Lessig of Stanford Law School and Carrie McLaren of Brooklyn, New York will be prevented by the Flag from using clips to make social, political, and cultural commentary on their Internet web journals, or “blogs.” Member Jack Kelliher of Utah will be foreclosed from marketing the digital television (“DTV”) tuner cards that he currently sells for “open source” computing systems. Members of Petitioner Consumers Federation Association (“CFA”), including Paul Schlaver of Massachusetts, will be prevented from sharing news and documentary clips at CFA’s Internet town hall meetings for educational and free speech purposes. And member Wendy Seltzer of Petitioner Electronic Frontier Foundation (“EFF”) will be prohibited from using broadcast clips to test her personal video recorder (“PVR”), from “time shifting” viewing of recorded programs, and from trouble- shooting the PVR she built for her parents.
In all these ways and more, the Broadcast Flag rule concretely injures Petitioners’ members. Thus, far beyond, and in addition to, the harm these members would suffer from the increased price of electronics the Flag would impose, there can be no question that Petitioners have standing to challenge the FCC’s order in this Court.
