Patent Baristas

The Washington Post reported that a three-judge panel for the U.S. Circuit Court of Appeals for the District of Columbia said the Federal Communications Commission had exceeded its authority in requiring built-in, anti-piracy technology to let broadcasters and studios prevent digital shows from being copied.

The “broadcast flag” would have been required in digital televisions and consumer devices sold after July 1. Under the rule, producers were to be required to embed a Broadcast Flag into programs transmitted via DTV signals so that, for example, users could store a program on a hard disk but would be prevented from archiving it to a DVD in order to save hard drive space. A detailed description of the regulation is available from the Electronic Frontier Foundation.

Judge Harry T. Edwards wrote:

“In this case, all relevant materials concerning the FCC’s jurisdiction — including the words of the Communications Act of 1934, its legislative history, subsequent legislation, relevant case law, and commission practices — confirm that the FCC 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.”

While it is a setback for the entertainment industry’s anti-piracy agenda, it’s also going to slow down the entrance of digital media products as the industry tries to keep a tight lock on digital media.

Edwards also stated that the court could:

“find nothing in the statute, its legislative history, the applicable case law, or agency practice indicating that Congress meant to provide the sweeping authority the FCC now claims over receiver apparatus. And the agency’s strained and implausible interpretations of the definition provisions of the Communications Act of 1934 do not lend credence to its position.”

This means that proponents of the broadcast flag, like the National Association of Broadcasters, will be running to Congress to try to get their agenda pushed onto the public. This will make for some interesting times as Congress tries to rewrite the 1996 Telecommunications Act, set a “hard date” for the transition to digital TV, toughen the nation’s laws for indecent programming and (probably) revisit copyright law after the Grokster case.

See the entire opinion here.