Flag Ruling Doesnt Signal End to Copyright Issues

Opinion: Questions of digital copyright are still raging through Washington this year, and the recent broadcast flag ruling points the way.

The looming Congressional battle over copyright legislation got a whole lot hotter last week.

Thats when the U.S. Circuit Court in Washington—not exactly a bunch of tech junkies—said that the Federal Communications Commission had overstepped its authority. The FCC doesnt have the legal right to require TVs or other devices to read special "broadcast flag" coding designed to prevent digital TV signals from being copied, the court said.

They werent polite either. Judge Harry Edwards didnt use the word "hypocrite," but he came pretty close: "The principal question presented by this case is whether Congress delegated authority to the Federal Communications Commission … to regulate apparatus that can receive television broadcasts when those apparatus are not engaged in the process of receiving a broadcast transmission. 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."


The courts ruling—and the harshness of its language—is important because the D.C. Circuit is the expert venue due to its location. It rules on the authority of federal agencies all the time, sussing out what Congress meant when it enacted laws.

Thats why Hollywood is stung by this ruling and probably wont appeal. Still, its a bit early to celebrate.

The broadcast flag ruling is a big step in the right direction for the tech community, but hardly a victory. Theres too much else going on, too many opportunities for challenges, rewrites, reinterpretations and flat out political monkey business—on both sides of the issue—in the years ahead.

If anything, this spring marked the season when digital technology came to politics. These issues—how new machines can be used, how artists and writers can be protected, what the responsibilities are of the courts and Congress—are here to stay.

"I think theres a very strong connection between this case and the Grokster case, said Gigi Sohn, CEO of Public Knowledge, one of the groups that sued the FCC over implementation of the broadcast flag rules. "Its about whos going to control technology."

/zimages/2/28571.gifIn an increasingly networked world, whos in charge? Click here to read Chris Nolans commentary.

As Sohn points out, the broadcast flag ruling comes as the U.S. Supreme Court is deciding MGM v. Grokster. In the case of Grokster, the court is being asked to determine the line between creating and selling a product—in this case, peer-to-peer file sharing for music—and encouraging its use for possibly illegal purposes. For Grokster, thats trading and swapping of music files, but the Supreme Court ruling will set benchmarks for other media, particularly video.

Conventional wisdom in Washington has the Grokster case being sent back to the 9th Circuit Court in San Francisco. If that happens, you can bet the California court will cast an eye on the D.C. courts broadcast flag ruling to gauge the political climate in which theyre ruling.

As the saying goes, judges dont play politics but they sure do read the newspapers. They also read each others opinions. The prevailing sentiment on the broadcast flag—that the FCC exceeded its authority—will register.

The cases will also give Congress a sense of its limits and serve as guides on what needs to be done to alter the law. Congresspeople and senators who are sympathetic to the television, recording and motion picture industries may use the broadcast flag ruling to expand the FCCs authority.

Tech companies might hold up the Supreme Courts Grokster ruling—as yet unannounced—as a way to say there should be clear limits on what Congress can and should do when it tries to protect copyright holders from theft.

Copyright legislation will move front and center in Congress later this year after Grokster, with more—and more heated—action, and maybe even law-making next year. But even if a law gets passed, that wont be the end of this fight.

Telecommunication legislation is up next and some of the same players and issues will be involved in that legislative retooling. What the industries dont get in copyright, theyll try to get in telecom: Two apples, many, many bites.

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