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Protecting the past

By Scott Bradner

In a decision that did not address the meritlesness of the idea, the U.S. Court of Appeals for the D.C. Circuit tossed out the FCC's attempt to provide a technical protection system against the movie industry having to rethink its business models. The Court ruled that the Federal Communications Commission (FCC) blithely ignored Congressional limits on the FCC's authority when it mandated that "broadcast flag" support be included in a wide range of electronic devices starting this summer. Sad to say, this is not likely to be the end of the story.

The broadcast flag is a command, inserted into a movie or other broadcast, that can be used to tell receiving devices to limit the ability of the user to make copies of the material. In late 2003 the FCC ordered that all devices that could be used to receive digital over-the-air broadcasts include logic to recognize and obey the broadcast flag command by July 2005. Over-the-air broadcasts were the first target of the broadcast flag but it would take someone of quite determined naiveté to not think that the movie industry would push to have the FCC mandate the same sort of flag processing for cable TV and other wired (or fibered) delivery methods if the technology proved itself on over-the-air broadcasts.

I wrote about the broadcast flag when it was first mandated by the FCC. (Protecting against the Internet - http://www.networkworld.com/columnists/2003/1117bradner.html) At the time I said that "the FCC's order is not nearly as bad as the movie industry wanted it to be, but it's bad enough." But the new court decision (http://pacer.cadc.uscourts.gov/docs/common/opinions/200505/04-1037b.pdf) does not address how bad the idea is -- it just addresses the legal standing of the American Library Association (ALA), which instigated the lawsuit and the authority of the FCC to control what devices can do with a transmission after they receive it.

The court basically said that the ALA had standing because broadcasters could use the broadcast flag to stop librarians from making copies of parts of broadcasts that librarians are legally entitled to make for library use. The court also said that the statutes that empower the FCC to regulate communications limit the FCC to dealing with transmissions up until the time the transmissions are received. The authority does not extend to controlling what happens after the reception and the broadcast flag is all about what happens after the reception. Because of this, the FCC ruled that the FCC exceeded its authority when it ordered that manufactures support the broadcast flag.

So the FCC mandate is gone at least for now. The government might appeal the court decision but it looks like a long shot. That does not mean this type of protection for old business models is dead. There is plenty of tradition behind getting congress to protect those too stupid to adjust to new worlds. The chance that the congress will try to do this again is close to 100%.

disclaimer: At least parts of Harvard are all about adjusting to new situations but the above observation is my own.