A Flag Lowered For Fair Use Rights

Once in a while those "activist" judges render a decision that makes sense. In this case, it’s one dealing with our fair use rights under Copyright laws. An appeals court told the FCC that they had no authority in 2003 to order the manufacturers of televisions, recording devices, and computers to build-in the ability to read and act on a "broadcast flag".

The big media companies have been pushing this concept, which allows them to add a flag to digital programs (broadcast, cable, DVD, etc.) telling the devices what can (and cannot) be done with the signal. For example, the flag could be used to tell a device whether a television program can be recorded or limit the number of times a rental DVD could be played.

The potential under a scheme like this is for every piece of media to become pay-per-view, not to mention eliminating the fair use rights of educators, librarians and researchers. Fortunately, the court left no doubt as to how far the FCC had ventured outside of their sphere.

"In this case, all relevant materials concerning the F.C.C.’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 F.C.C. 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," Judge Edwards wrote.

"And the agency’s strained and implausible interpretations of the definitional provisions of the Communications Act of 1934 do not lend credence to its position. As the Supreme Court has reminded us, Congress ‘does not … hide elephants in mouse holes.’ "His opinion, in American Library Association v. Federal Communications Commission, was joined by Judges David B. Sentelle and Judith W. Rogers.

But the story doesn’t end here. While the big media companies will probably not appeal this to the Supreme Court, they still have their sock puppets in Congress. Look for some kind of law requiring the broadcast flag to pop up there in the near future.

It’s too bad the media moguls and their pet legislators aren’t smart enough to understand bits. As soon as any material is digitized, you lose control of it. Someone will find a way around any digital barrier the companies erect. The best they can do is offer full access at fair prices and move on to the next project.

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