Public Interest Groups Praise Ruling Striking Down Broadcast Flag

For Immediate Release

Background: The U.S. Appeals Court for the D.C. Circuit this morning struck down the Federal Communications Commission's rule instituting the "broadcast flag." The flag is a digital marker sent through over-the-air digital TV signals setting conditions on how the program may be used after it's received. The marker signals "compliant" devices to limit or prevent copying, as well as to block transfer to noncompliant devices; the regulation also would have required all TV-handling consumer electronics devices sold after July 1, 2005 to be compliant.

The unanimous decision in the case (No. 04-1037) found the FCC had exceeded its authority in approving the flag, saying in part: "In the seven decades of its existence, the FCC has never before asserted such sweeping authority." The text of the case may be seen here:
http://pacer.cadc.uscourts.gov/docs/common/opinions/200505/04-1037b.pdf.

The case was brought by Public Knowledge, Consumers Union, Consumer Federation of America, Electronic Frontier Foundation, American Library Association, American Association of Law Libraries, Association of Research Libraries, Medical Library Association, and the Special Libraries Association.

Gigi B. Sohn, president and co-founder of Public Knowledge, said: "This case is a great win for consumers and for technology innovation. It's about more than simply broadcasting. It is about how far the FCC can go in its regulations without permission from Congress. Had the flag been implemented, Hollywood, acting through the FCC, would have been able to dictate the pace of technology in consumer electronics. Now, thankfully, that won't happen. While we recognize that the content industries may ask Congress to overturn this ruling, we also recognize that Congress will have to think very hard before it puts restrictions on how constituents use their televisions."

Gene Kimmelman, co-director of the Washington office of Consumers Union and Mark Cooper, research director for the Consumer Federation of America, said: "This is an important victory for citizens and consumers. It is one major battle in the long struggle to ensure that the digital information age is open and accessible. It prevents the FCC from mandating technology to block people from using legally obtained video content in the ways that have been traditionally available to them as speakers and viewers. As we showed in our affidavit on standing, consumer groups use broadcast video content in many ways. This is an important means of communications, especially for low and middle income households. Along with the Brand X case and the Prometheus case, it overturns another aspect of the illegal and ill-considered war launched by Chairman Powell on the fundamental principles of open and nondiscriminatory access to the means of expression in our society. The decision should also send a strong signal to the FCC that it cannot invent authorities to accomplish public policy purposes."

Fred von Lohmann, senior staff attorney for the Electronic Frontier Foundation, said: "The winners in this case are clearly consumers and innovative companies. This was always a case about technological progress, not about protection of content. We expect that if Congress tries to legislate in this area, it will hear from a wide variety of energized consumers and technologists who will say loudly that they don't want their TVs broken by Hollywood."


Public Knowledge is a public-interest advocacy and education organization that seeks to promote a balanced approach to intellectual property law and technology policy that reflects the "cultural bargain" intended by the framers of the constitution. More information available at: http://www.publicknowledge.org

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