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Television Media Your Rights Online

Broadcast Flag in Trouble 418

Posted by CmdrTaco from the sink-that-sucker dept.
pdqlamb writes "USA Today reports an appeals court was not amused at the FCC's broadcast flag rule. Sounds like the judge bought into the argument that the FCC does not have the authority to dictate device design. The broadcast flag isn't quite dead yet, but at least it's in trouble."
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Broadcast Flag in Trouble More

Broadcast Flag in Trouble

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  • Sooner or later, this flag will no longer wave... (Score:5, Interesting)

    by Robotech_Master ( 14247 ) * on Wednesday February 23, 2005 @01:01PM (#11756546) Homepage Journal
    Yeah, this was a complete legal smackdown all right. The only reason the court could possibly have for not killing the flag is a technicality. If they find that the plaintiffs don't have standing to bring the complaint, all it means is that they have to wait for someone with standing to bring it. Sooner or later, that flag is history. At least until the broadcasting conglomerates can find some other way to require it...

    PS: First(ish) post!

    • Re:Sooner or later, this flag will no longer wave. (Score:5, Insightful)

      by ArmchairGenius ( 859830 ) on Wednesday February 23, 2005 @02:05PM (#11757303) Homepage
      That is a good point. But you also need to remember the comment was made by one judge on a panel of 3. And the D.C. Circuit probably has a dozen or more judges. So even if this panel all thought the FCC overstepped their authority, they could still be overruled en banc by the entire circuit.

      And of course this is only one circuit, others could hold differently if multiple challenges were filed around the country.

      So judicially, this could play out for a long time.

      And of course, Congress could just pass a bill mandating the broadcast flag or expanding the FCC's authority so that they can readopt this rule.

    • This was a pretty big smack down. But, did it seem to you like the judges were a tad bit obsessed with washing machines?

    • Re:Sooner or later, this flag will no longer wave. (Score:5, Insightful)

      by nickname225 ( 840560 ) on Wednesday February 23, 2005 @04:55PM (#11759149)
      I am a lawyer (although litigation is not my area). The general rule is that standing to bring a case requires more than the generalized injury that all citizens suffer (The thinking goes that congress is charged with addressing that sort of generalized injury). If the courts find that consumer groups (weak - because we are all consumers - thus the injury is generalized) and libraries (stronger) don't have standing, then the most likely plaintiffs will be hardware manufacturers - who can point to added costs. Are there any manufacturers who have voiced opposition to the flag? If not a good plaintiff may be hard to find. Courts have held that in some cases - bascially no one has standing.

  • Oh.. this aint over. (Score:5, Insightful)

    by Ckwop ( 707653 ) * on Wednesday February 23, 2005 @01:01PM (#11756550) Homepage

    The broadcast flag isn't quite dead yet, but at least it's in trouble

    This is by no means dead. When the entertainment industry can't foist something on you by the backdoor they use plan B: Ask the senate for a nice bit of special interest legislation.

    You can tell the quality of your opponent by the cunning of their plan B, in this case their plan B is just as good as their plan A. In a way, I kinda admire the cunts.. :)

    Simon.

    • In a way, I kinda admire the cunts..

      I always admire cunts.

      Err... umm... I mean. Umm...

      Gotta go!
    • No plan B, it distracts from plan A.

    • Re:Oh.. this aint over. (Score:5, Interesting)

      by tji ( 74570 ) on Wednesday February 23, 2005 @01:39PM (#11756989)
      > This is by no means dead. When the entertainment industry can't foist something on you by the backdoor they use plan B: Ask the senate for a nice bit of special interest legislation.

      Actually, this was the back door.

      Congress told them to fuck off when they went looking for legislation.

      Then, they went to the FCC, and Michael Powell was more than willing to bend over for big business. But, that seems to be standard operating procedure for the current administration. They talk "free markets", but in practice there are way too many gifts to big business. (letting polluters out of environmental enforcements, letting Microsoft out of antitrust enforcements, etc.) Locking the little guys out of the market and perpetuating the market for the big guys.

      • Re:Oh.. this aint over. (Score:4, Informative)

        by sedmonds ( 94908 ) on Wednesday February 23, 2005 @02:03PM (#11757268) Homepage
        Not to nit-pick, but removing environmental enforcement provisions and letting Microsoft out of antitrust enforcements are both actions that make the market more free. Consumer protection and corporate protection are both regulated influence on the markets, something with a free market is supposed to avoid.

        • Re:Oh.. this aint over. (Score:4, Insightful)

          by SnapShot ( 171582 ) on Wednesday February 23, 2005 @02:15PM (#11757423)
          Not to nit-pick, but removing environment enforcment provisions is a subsidy to the polluting industry and the antithesis of a free market. A common good (air, water, soil, whatever) is consumed by a single entity and the cost is born by others.

          • Re:Oh.. this aint over. (Score:4, Insightful)

            by sedmonds ( 94908 ) on Wednesday February 23, 2005 @02:35PM (#11757634) Homepage
            The market on its own would disagree with you. People don't value clean air, water, soil, etc. enough for their purchasing decisions to force polluters out of business, or to even change their production methods. This is where government has had to step in and apply environmental enforcement provisions. This is not a free market at work, it's regulated. There are other such goods which the government steps in on to fill the lack of a free market providing, such as building and maintaining roads and highways, provision of police services, provision of an army to protect form foreign agents, to name a few.
            • The market on its own would disagree with you.

              Since when did abstract concepts have opinions?

              People don't value clean air, water, soil, etc. enough for their purchasing decisions to force polluters out of business, or to even change their production methods.

              A clean environment, has NO MARKET VALUE. That does not mean it has no value whatsoever.

              It is a myth spread by polluters that that EVERYTHING can be (and would by some magical process, automatically be) reduced to a monetary value. This myth is c
              • The market isn't entirely an abstraction. The market could be considered to be the sum of all consumers of goods and services, including producers purchasing their factors of production. Each of these actors places some value on clean air (though you can substitute anything) in their preferences. When purchasing other goods and services, part of the production of those goods and services may be heavy pollution, or child labour, or clubbing baby seals.

                If consumers valued clean air (not necessarily moneta

        • Re:Oh.. this aint over. (Score:5, Insightful)

          by Moofie ( 22272 ) <lee@ringofsat u r n.com> on Wednesday February 23, 2005 @02:27PM (#11757556) Homepage
          A Microsoft monopoly is not a free market. It's not restricted by the government, it's restricted by Microsoft.

          Just as my "freedom" does not extend to me being allowed to kill you, actors in a free market should not be permitted to unduly restrict access to that market.

          • Re:Oh.. this aint over. (Score:4, Insightful)

            by sedmonds ( 94908 ) on Wednesday February 23, 2005 @02:44PM (#11757745) Homepage
            A monopoly most certainly can exist in a free market. A free market refers to the degree of regulation imposed from outside the market, on the market. Whether or not you think that free market actors should not be permitted to unduly restrict access to a market, that is not what a free market system is.

            The antitrust legislation which is supposed to re move Microsofts ability to restrict access to the market from some good or service is what removes freedom from the market, not Microsoft leveraging products against each other to strengthen their market position. A free market provides the right for anyone to produce widgetX for windows, it does not provide that everyone have equal access to windows in order to do so.
            • I don't agree.

              The attributes of a free market include:

              Anyone is free to enter or leave the market

              No one person, or group of people, is big enough to control the market price

        • Re:Oh.. this aint over. (Score:5, Insightful)

          by Phanatic1a ( 413374 ) on Wednesday February 23, 2005 @02:30PM (#11757580)
          The very *existence* of a corporation is regulated influence on the market. A corporation is a *legally-created* entity; absent the laws which allow them to exist, you'd just have a mass of individuals wholly liable for their actions.

          That's something I rarely see free-marketers mention.

      • Plan B (Plan C?) isn't to ask Congress to legislate the Broadcast Flag. It's to ask Congress to expand the domain of the FCC to include protecting copyrights over broadcast media.

        The FCC currently overstepped its bounds. The backup plan is to extend those bounds, so that the FCC can regulate the broadcast flag, nice and legally. Congress won't have done anything, themselves, to make the broadcast flag legal, they'll just have "strengthened the FCC in the face of increasing piracy."

  • Nooooo (Score:5, Funny)

    by nizo ( 81281 ) * on Wednesday February 23, 2005 @01:02PM (#11756571) Homepage Journal
    Now what am I to do with the truckloads of flag-free tuner cards I bought? Since social security is going down the tubes, I guess it is back to plan B for my retirement plans: leech off my kids.

    • Re:Nooooo (Score:5, Funny)

      by mmkkbb ( 816035 ) on Wednesday February 23, 2005 @01:04PM (#11756600) Homepage Journal
      Since social security is going down the tubes, I guess it is back to plan B for my retirement plans: leech off my kids.

      What's the difference?

      • Re:Nooooo (Score:5, Insightful)

        by DShard ( 159067 ) on Wednesday February 23, 2005 @01:07PM (#11756625)
        Social security allows you to leach off of other people's kids.

        • Re:Nooooo (Score:4, Funny)

          by nizo ( 81281 ) * on Wednesday February 23, 2005 @01:13PM (#11756697) Homepage Journal
          Yeah, at least if I can leech off of other people's kids, I don't have to encourage my kids to be lawyers (shudder).

        • Re:Nooooo (Score:5, Funny)

          by iammrjvo ( 597745 ) on Wednesday February 23, 2005 @01:17PM (#11756738) Homepage Journal

          But, wait! WAIT! I thought that Social Security was supposed to be my money that the federal government conveinently has been saving up for me, right? I mean, they've taken good care of my money, right? I mean, surely the federal government can take better care of my money than I can.

          • Re:Nooooo (Score:2, Informative)

            by avdp ( 22065 ) *
            I know the whole thread is a joke, so I probably shouldn't bother with a serious reply, but here it is anyway...

            Social security was never setup (or even advertised to be) like that. It's always been you pay for the current crop of retirees. And the next crop of worker bees will pay for you when you retire. Works fine unless there are sudden spikes in retirees (damn baby boomers).

            • Re:Nooooo (Score:2, Insightful)

              by zapp ( 201236 )
              I still don't get this logic....
              A spike in a generation (baby boomers) means a bigger spike (geometric growth, everyone has at least 2.5 kids, right?) in following generations.

              That means there are more workers NOW (children of baby boomers) than there are baby boomers. So where's the problem?

              The only problem I can see is if a generation was SMALLER than its parent generation.

      • Re:Nooooo (Score:3, Informative)

        by ghjm ( 8918 )
        Why does nobody understand the social security trust fund?

        The increase in payments caused by the retirement of the Baby Boom generation was predicted in the 70s. The Reagan administration got a payroll tax increase enacted, to build up the trust fund and make sure that we could cover the costs.

        We have been paying this tax since 1983. We have collectively paid $1.7 TRILLION dollars in extra taxes, to build up the system so that the Boomers can retire. Mostly, these taxes have been paid by the Boomers thems

    • Re:Nooooo (Score:3, Informative)

      by AviLazar ( 741826 )
      Just like previous laws, that affect retail products, companies will be allowed to sell their current stock; new stock has to be produced with the new technology.

      I know you were being funny (i thought you were going another route with the joke though), but just in case some people actually thought on it for a moment and wondered "what does happen to all of the tv's without this technology?"

    • Re:Nooooo (Score:4, Interesting)

      by Jeremy Erwin ( 2054 ) on Wednesday February 23, 2005 @01:29PM (#11756860) Journal
      A certain Korean electronics giant has produced a whole range of HDTV tuners, some with interesting features, such as RGB and IEEE1394 interfaces. They claim, however, that the products produced before November 2002 require a firmware update.


      If you fail to upgrade your set top box and the Broadcast Flag is broadcast, your set top box could lock and display nothing until you perform the upgrade.


      Now, although they claim

      The Broadcast Flag will not prevent you from making copies of your favorite TV broadcasts.


      So what is the broadcast flag for? If a certain owner wishes to use a VirtualDVHS program, instead of a rather expensive DVHS deck, what guarantee do the content mafia have that those streams won't be passed around like candy?

      I feel as though the consumer electronics people have somehow been encourage to lie, cheat, and cajole their customers into compliance...

  • easy to solve (Score:5, Funny)

    by Anonymous Coward on Wednesday February 23, 2005 @01:04PM (#11756598)
    Just XOR the broadcast flag with the evil bit, sheesh!
    • Just XOR the broadcast flag with the evil bit, sheesh!

      I'll just try that now...

      *FLASH*
      Bill Gates appears as large light cylindar and booms:
      "You will all run Windows and make macaroni pictures to honor my name."

      Yow!

  • A glitch in the matrix (Score:3, Funny)

    by thiophene ( 216836 ) on Wednesday February 23, 2005 @01:04PM (#11756599)
    Whoa! I just had deja vu [slashdot.org]
  • We start with: "Ancillary does not mean you get to rule the world...You've gone too far. Are washing machines next?" (Edwards)

    Followed by: "You can't regulate washing machines. You can't rule the world." (Sentelle)

    Tag team attack! Now if only we could get one of them to hear the lokitorrent.com [lokitorrent.com] case or, better yet, outlaw the RIAA...

  • The broadcast flag may be dead... (Score:4, Funny)

    by sweeze ( 530463 ) on Wednesday February 23, 2005 @01:07PM (#11756629)
    The broadcast flag may be dead... ... but the repeat flag is still living strong!

    • Re:The broadcast flag may be dead... (Score:4, Informative)

      by enrico_suave ( 179651 ) on Wednesday February 23, 2005 @01:13PM (#11756699) Homepage
      The flag isn't dead *yet*... IANAL but my understanding is there's another step to stop it's implmentation. i.e. the judges (2 of them anyways) agreed that it was a ludicrous overreach by the FCC to be enforcing copyright laws and outside their mandate. Unfortunately that revelation won't stop the courts from screwing up the final decision and letting the Broadcast Flag come to fruition.

      Also as noted by previous posters, even if FCC gets the full smackdown, they seem confident they can go to congress and get them to pass the mandate they didn't have to begin with =(

      I posted a bunch of Broadcast Flag related links here [byopvr.com]

      e.
  • I dont have explicit authority to fine people for looking at me in a funny way, but it isn't outlawed. I'm woindering what mandate the FCC has to go past explicit authority.

    • Re:Doesn't the FCC NEED explicit authority? (Score:4, Informative)

      by Martin Blank ( 154261 ) on Wednesday February 23, 2005 @01:17PM (#11756742) Homepage Journal
      You don't have authority to require people to pay fines, and that is enshrined in law. The government does, and unless you're part of the government, even by extension (deputized, for example), you don't have such a power, and you are explicitly barred from collecting such fines.

      Congress is usually pretty specific on the powers it grants to the FCC. There have been several occasions when the FCC has found a loophole, and Congress has closed it rapidly. If they don't have legal authority here, Congress will have to explicitly give them such authority, which will probably get bogged down in debate. Many members of Congress are not particularly keen on these kinds of powers.
      • One double edged sword for special interest groups is that because congress is so power hungry to get more power and to retain their power they are reluctant to give it to other groups. So if Congress finds that the FCC cannot do this and the FCC petitions for the power - well it will be an uphill battle to say the least. Congressman like their power.

        Another thing to note - although the appelate courts slammed the FCC, that does not mean congress cannot bring this law into effect - and if they do, the

  • USA Today Confirms It! (Score:5, Funny)

    by Tackhead ( 54550 ) on Wednesday February 23, 2005 @01:10PM (#11756669)
    > USA Today reports an appeals court was not amused at the FCC's broadcast flag rule. Sounds like the judge bought into the argument that the FCC does not have the authority to dictate device design. The broadcast flag isn't quite dead yet, but at least it's in trouble

    It is official; USA Today now confirms: Broadcast flag is dying. One more crippling bombshell hit the already beleaguered FCC when USA Today confirmed that broadcast flag market share has fallen yet again, now down to less than 50 percent of federal judges. Coming on the heels of a recent ruling which plainly states that the FCC has "crossed the line", this judgement serves to reinforce what we've known all along. The broadcast flag is sending the DRM industry into complete disarray, as fittingly exemplified by bottoming out in the recent ruling from Judge Edwards.

    You don't need to be Michael Powell to predict the broadcast flag's future. The hand writing is on the wall: the broadcast faces a long and tortuous future. In fact there won't be any future at all for the broadcast flag because the content industry is shrinking. Things are looking very bad for the content industry. As many of us are already aware, the content industry continues to lose market share. Red ink flows from Hollywood like a river of blood.

    The broadcast flag is the most hated of them all, having been ruled against by at least one circuit court judge. The sudden and pleasant release of the long developed arguments in court only serves to underscore the point more clearly. There can no longer be any doubt: the broadcast flag is dying.

    Let's look at the numbe[BROADCAST FLAG INFRINGMENT DETECTED - REDISTRIBUTION OF A DERIVATIVE WORK OF NETCRAFT, INC - POSTER NEUTRALIZED]

  • dupes are good for us all... (Score:3, Funny)

    by das_katz_socrates ( 641745 ) on Wednesday February 23, 2005 @01:11PM (#11756674) Homepage
    Ok this is offtopic and I'm sure the super secret mod cabel is going to mod me down for it, yada yada...

    All you people bitching about dupes got it all wrong, we need these duplicated stories on slashdot for a few good reasons.

    1) without dupes there would maybe be one story per day on the front page.
    2) without dupes people would have to resort to actually being insightful on their own instead of just copying some other comment from the previous story.
    3) ????
    4) Profit!

  • a few things to note (Score:5, Interesting)

    by AviLazar ( 741826 ) on Wednesday February 23, 2005 @01:14PM (#11756714) Journal
    Anyone can copy a show for educational purposes - not just librarians (or teachers).

    This new chipset might very-well prevent people from recording shows on VCRs - which is allowed per the beta-max ruling that happend over twenty years ago.

    IIRC the beta-max ruling applies to recording shows onto dvd (just another medium...hell some people don't even have VCRs anymore - just DVRs and the like).

    I hope the judge lays the smack down.

    I also find it disconcerting that it has been mentioned that advocate groups cannot contest FCC rules...since when can't the public contest a law/rule by a gov't agency...last I heard gov't agencies (i.e. FCC) work for us.

  • not dead yet? (Score:4, Informative)

    by frovingslosh ( 582462 ) on Wednesday February 23, 2005 @01:15PM (#11756722)
    When saying that the jugde didn't buy that the FCC has the right to pass this rule, it should be noted that here was no actual ruling, and that the court might even decide that the case can't be brought by the parties that filed it (which leads to the crazy logic that the judge outright says that the FCC has no right to make this rule but he'll do nothing about it). Worse, with no rule set by the courts and the deadline fast approaching, manufacturers who want to stay in business have little option but to supprt the damn flag. They are less likely to spend more money later to redesign new hardware to omit support for it again, and if they do that will only drive the price of HDTV even higher.
    • "(which leads to the crazy logic that the judge outright says that the FCC has no right to make this rule but he'll do nothing about it)"

      That would make him a liberal activist judge. Horrors.

      You've a point about the manufacturers. Damn. It takes months to set up a manufacuring line with or without the flag. They're screwed -- they might have to flog cards or PVR's crippled with the control mechanism for months until they get rid of the inventory, or else have to eat a season's worth of profit if they are
    • That's what I love about HDTV. For 20 years it's been 2 years away from widespead deploytment. And still is. And will be in two years.

      Finally when it is ready people will have long given up television in favour of their computer screen.

  • If Slashdot Ruled The World... (Score:5, Funny)

    by sanityspeech ( 823537 ) on Wednesday February 23, 2005 @01:16PM (#11756732) Journal
    From the article:
    He [U.S. Circuit Judge Harry Edwards] said the FCC "crossed the line" beyond its authority approved by Congress. "You've gone too far," he said. "Are washing machines next?"

    ...Another circuit judge, David Sentelle, agreed...

    "You can't regulate washing machines. You can't rule the world.
    Correct me if I err, but I believe that washing machines do not qualify as COMMUNICATIONS equipment. Maybe it comes under DOE [energy.gov] territory, but definitely not the FCC [fcc.gov].

    I know they are not experts, but the least they could do is not confuse apples and oranges.

    If Slashdot Ruled The World, these judges would have been (-1, Offtopic)
    • ...that is, unless the washing machine somehow interefered with FCC Part 15 regulations [fcc.gov] by virtue of having a DC motor and all.
    • Do they have the authority to regulate birds [faqs.org]?
    • Gee, I don't know - you can wash (real) flags in one, and using a href="http://www.altvetmed.com/face/47304-semaphor e-flags.html" semaphor flags is certainly communications so of course the FCC has jurisdiction over washing machines.

    • Re:If Slashdot Ruled The World... (Score:5, Insightful)

      by Anonymous Coward on Wednesday February 23, 2005 @01:34PM (#11756931)
      Cute, but to the extent you're serious, you're missing the point. The FCC has no authority to regulate communications equipment in this way. Congress did not authorize them to do so. The FCC admits that. The FCC argues that since Congress did not prohibit them from making this kind of regulation, they are allowed to do it. The judge is pointing out that if they are allowed to regulate something as long as it's not explicitly prohibited to them, then logically they can regulate almost everything. They can regulate washing machines, as long as there's no law stating "The FCC may not regulate washing machines."
    • Also from the article:
      The FCC's lawyer, Jacob Lewis, acknowledged the agency never had exercised such ancillary power but maintained it was permitted by Congress since lawmakers didn't explicitly outlaw it.
      Given the broad nature of the FCC's attempted power grab, mentioning washing machines is entirely appropriate.
    • That's exactly the judge's point: the FCC has no authority over washing machines, or the digital TV distribution covered by the broadcast flag. The FCC went too far in controlling the broadcast flag, so the judge sarcastically asked if they would also try to control washing machines - which would also be going too far.

      But this is Slashdot, where "no sense of sarcasm" is "+1, Insightful".

  • A scary argument (Score:4, Insightful)

    by Anonymous Coward on Wednesday February 23, 2005 @01:18PM (#11756747)
    But Sentelle questioned whether the consumer and library groups can lawfully challenge the FCC decision, since the rules in question affect television viewers broadly.

    He's not saying the libraries aren't affected, just that they aren't affected more than anyone else. Ie., nobody can bring a lawsuit saying the government exceeded its bounds, as long as we're all getting screwed equally....if they throw the case out on that grounds, I'm gonna be really worried.

  • what's next? (Score:2, Troll)

    by lkcl ( 517947 )
    "Ancillary does not mean you get to rule the world," Edwards said. He said the FCC "crossed the line" beyond its authority approved by Congress. "You've gone too far," he said. "Are washing machines next?"

    *ROTFL*

  • Whose watching the watchers? (Score:5, Insightful)

    by Baavgai ( 598847 ) on Wednesday February 23, 2005 @01:25PM (#11756827) Homepage

    If the appeals panel decides that the consumers groups can't contest the FCC requirements, it would dismiss the case regardless of any concerns about the anti-piracy technology

    This may be a naive question, but if not the people affected by the FCC cannot challenge them, who the hell can?

  • It's not dead... (Score:3, Funny)

    by hazee ( 728152 ) on Wednesday February 23, 2005 @01:28PM (#11756852)
    It's resting...

  • Time for a hangin' (Score:5, Insightful)

    by PHAEDRU5 ( 213667 ) <instascreedNO@SPAMgmail.com> on Wednesday February 23, 2005 @01:28PM (#11756855) Homepage
    This rocked me back on my heels:

    "The FCC's lawyer, Jacob Lewis, acknowledged the agency never had exercised such ancillary power but maintained it was permitted by Congress since lawmakers didn't explicitly outlaw it."

    Especially since the 10th amendment to the US Constitution says:

    "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

    Got that, FCC boy? If you're not explicitly given the power, you can't exercise it.

    Lawyers! Damn their oily hides!
    • The 10th Amendment has been a dead letter for a looong time. If it were strictly applied, most of what the Federal government does would necessarily be judged unconstitutional. Not that I'm saying that would be a bad thing, but don't expect it any time soon -- 200+ years of precedent are against you.

      • Re:Time for a hangin' (Score:5, Interesting)

        by MemeRot ( 80975 ) on Wednesday February 23, 2005 @02:21PM (#11757486) Homepage Journal
        Not true. For 200+ years, Congress has just said that 99% of their rules are allowed because they affect interstate commerce in some vague, tertiary way, and they do have the constitutional authority to regulate interstate commerce. The problem is they have warped that beyond all belief. A cannabis club for terminal patients in California was raided even though they followed state law, raised their own cannabis in california, and sold it to nobody (all donated to the patients). The fed. gov't argued that the fact they grew it at all was sufficient to cause people in other states to want to buy it, hence 'interstate commerce' involving no commerce, and no interstate traffic. Yes, the lunatics are running the asylum.

        • Re:Time for a hangin' (Score:3, Insightful)

          by hawk ( 1151 )
          Not true. For 200+ years, Congress has just said that 99% of their rules are allowed because they affect interstate commerce in some vague, tertiary way, and they do have the constitutional authority to regulate interstate commerce.

          No, not 200+ years. That goes back to the New Deal, when the Supreme Court tossed out the rest of the Constitution over interstate commerce.

          However, in the past few years, the pendulum has been swinging back, as courts have found the commerce power to not extend to carjacking

    • The 10th isn't relevant (Score:4, Informative)

      by hawk ( 1151 ) <hawk@eyry.org> on Wednesday February 23, 2005 @02:30PM (#11757587) Journal
      I am a lawyer, but this isn't legal advice. If you can somehow construe this as legal advice, the circus wants you as a contortionist.

      The 10th would only affect whether or not Congress had the power, not whether or not htey delegated it.

      Even assuming that Congress *does* have it, it would have to explicitly grant authority for this function to the FCC (or any other administrative agency). OTOH, if Congress doesn't have it, there is no way, whether it granted it or not, that the FCC could excercise it.

      hawk

  • It is too late (Score:5, Insightful)

    by MobyDisk ( 75490 ) on Wednesday February 23, 2005 @01:31PM (#11756890) Homepage
    It doesn't matter if the FCC is forced to repeal the broadcast flag. Manufacturers have already spent money to implement it, and the consumers probably won't force them to change it. Manufacturer's wallets are probably influenced more by the MPAA than by their customers. (As evidenced by PC manufacturers embracing DRM technologies and trusted computing.)

    I bet that the flag will be repealed but manufacturers will continue to see the crippled hardware. Consumers will whine and complain but that will change nothing. The best we can hope is that it will become an excuse to sell you new hardware that is identical to what you just bought, except with a solder connection removed somewhere. The manufacturers then stand to double their money. Still, the consumer loses.

  • How ironic... (Score:3, Funny)

    by Sesse ( 5616 ) <sgunderson@big[ ]t.com ['foo' in gap]> on Wednesday February 23, 2005 @01:32PM (#11756906) Homepage

    Am I the only one who's amused at the footer? :-)

    Copyright 2005 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

    /* Steinar */

  • Ummm... Bill of Rights anyone? (Score:3, Informative)

    by tonsofpcs ( 687961 ) <slashback@NOSPAm.tonsofpcs.com> on Wednesday February 23, 2005 @01:34PM (#11756929) Homepage Journal
    The FCC's lawyer, Jacob Lewis, acknowledged the agency never had exercised such ancillary power but maintained it was permitted by Congress since lawmakers didn't explicitly outlaw it.
    Hmmm... according to the Tenth Ratified Ammendment to the Constitution of the United States of America: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. -- The FCC should not be able to impose sanctions on anything, yet alone private trade (the devices).

  • USA Today reports the wrong problems (Score:5, Interesting)

    by digidave ( 259925 ) on Wednesday February 23, 2005 @01:37PM (#11756965)
    This story should be in the interest of nearly everybody who watches TV, yet the USA Today article makes it sound like it's only going to affect pirates, then has some vague reference to libraries being unable to use TV programs as educational tools.

    Here's the problem: The broadcast flag can prevent normal people from recording any of their favourite TV shows. People care about that because they record shows all the time so they can view them later. People need to understand that what the FCC wants to do will give them less rights to watch TV how they want.

  • Sacrificial lamb (Score:5, Interesting)

    by wiredlogic ( 135348 ) on Wednesday February 23, 2005 @01:49PM (#11757108)
    This may, in fact, work in favor of the corporate media moguls.

    If precedent is set that the FCC can't regulate HDTV hardware implementations then they can legitimize their plans to enforce restricted access to media through the HDMI interface. Once the OTA signal is demodulated the FCC can't prevent the transmission of the video over an encrypted link. HDMI implementors are prohibited from providing unencumbered access to the full-res HD signal. Existing HD monitors and tuners will not matter since any new hardware with HDMI will not work with these legacy devices.

    My guess is that the proponents of the broadcast flag are willing to lose it because it only serves to strengthen the fortifications for their next attempt at plugging the HDTV hole.

    • Re:Sacrificial lamb (Score:3, Insightful)

      by runderwo ( 609077 ) *
      My guess is that the proponents of the broadcast flag are willing to lose it because it only serves to strengthen the fortifications for their next attempt at plugging the HDTV hole.
      Which involves less risk to bypass: a technological measure, or a legal measure?

  • why? (Score:3, Insightful)

    by DustyShadow ( 691635 ) on Wednesday February 23, 2005 @01:54PM (#11757172) Homepage
    From TFA: "But another appeals judge on the panel questioned whether consumers can challenge the FCC's rules in the courtroom."

    If consumers have to abide by FCC rulings and can be taken to court if they don't follow them then why would consumers not be allowed to take their rulings to court?

  • What's next? (Score:3, Funny)

    by Inkieminstrel ( 812132 ) on Wednesday February 23, 2005 @01:56PM (#11757191) Homepage
    Well isn't this great? Now I need to go buy a new washing machine before July.

  • What amazes me is the Media Spin Title... (Score:3, Insightful)

    by CygnusXII ( 324675 ) on Wednesday February 23, 2005 @01:59PM (#11757231)
    U.S. appeals court debates anti-piracy TV technology
    It's being dubbed 'AntiPiracy' . Not Digital Rights Management or any other Politically Correct term. It's being shock valued, to bias the interpretation by the regular Consumers, and Average Mom & Pops. Mom & Pop VCR User doesn't want to consider themselves in the same light as the wiley Video Pirate. Seems to me an attempt to make it a little more palatable to the masses, and smooth the adoption via other means.
    • Actually Digital Rights Management is not a politically correct term, its the media industries name for what should be "Digital Restrictions Management" - its like the glass half full/half empty idea, but where the media industry drinks half the glass behind our back and then claims its half full.

  • It must be that (Score:5, Interesting)

    by Mr. Cancelled ( 572486 ) on Wednesday February 23, 2005 @02:30PM (#11757581)
    ...the judge owns a VCR. Try explaining to anyone who owns, or has owned a VCR, that they will be no longer be able to record the television shows that they're paing to see, and most people will end up with the correct conclusion: We pay for this service, and it's up to us when, and if we watch the shows.

    It's so f'in ludicrous that the FCC thinks it can dictate what you watch, and when, but then still expect vendors to be able to charge us full price for a monthly subscription.

    In fact, if something like this passed, I would propose a series of class action suits which would limit our monthly cable/sattelite bill to only that which we've watched! If we can't record shows, and watch them at a later time, then we shouldn't be charged for that which we're unable to watch, due to scheduling, conflicts, or personal choice!

    Think about it... How fast will the cable providers be pounding on the FCC's door if they realize that they can only charge us for what we watch, on a per show basis! And if a bill like this passes, than that same logic applies to this: If I can't record and watch my TV at my leisure, then I shouldn't have to pay for something which I'm unable to watch due to federal legislation (and/or scheduling conflicts).

    A country of television providers would be calling for the FCC's ass on a stake if this happened, and I don't think it'd be too hard to bring such a suite to court and win, if the FCC gets their way with the proposed limitations.

    • Re:It must be that (Score:3, Insightful)

      by t_allardyce ( 48447 )
      Well you see the FCC trusts that networks wont abuse this power - for example, they could potentially put the broadcast flag on absolutely everything but the FCC has absolute faith that they won't, they have infact so much trust in the networks that they're relaxing the ownership laws. - of course when it comes to saying fuck, the FCC doesn't trust them any further than they can throw the book at them, because thats so much more important.

  • Again, this is highly misleading (Score:3, Interesting)

    by cpt kangarooski ( 3773 ) on Wednesday February 23, 2005 @02:57PM (#11757879) Homepage
    The court hasn't ruled yet. It's not going to rule for months, most likely. So it's very early to be saying that the broadcast flag is in trouble.

    Mostly people seem to be looking at what one of the judges said. This is a big mistake.

    Judges routinely will adopt a position opposite to that of what the lawyer before them has. By challenging the lawyer, they force him to make good arguments on behalf of his side, and to answer tough questions that he'd otherwise prefer to avoid. It doesn't mean anything as to the judge's opinion, or how he will rule. It's just a technique for getting information.

    It's entirely normal to go in front of a judge, arguing on behalf of A. The judge will be very harsh, point out the flaws of A, and ask why B isn't better. When the other side has their turn, the judge immediately starts praising A and making the other side defend B. The constant is that he's putting whoever is in front of him on the defensive, making him explain his argument and admit to its weaknesses as well as the strengths that would be extolled anyway.

    This sort of questioning doesn't mean anything about the eventual outcome.

  • Play By Play of the Oral Argument. (Score:5, Informative)

    by luminousvoid ( 862090 ) on Wednesday February 23, 2005 @03:06PM (#11757996) Homepage
    At least 2 out of the 3 judges were skeptical of the FCC's arguments, though some of them were also skeptical of some of the claims of hte challengers. I attended the hearings and blogged a play-by-play of the argument. [luminousvoid.net]

  • It was just oral arguments... (Score:3, Informative)

    by Ath ( 643782 ) on Wednesday February 23, 2005 @05:10PM (#11759303)
    Did anyone bother to notice that the article only referred to the oral arguments in the case? This was not a decision. These were only statements and questions from two of the judges sitting on the panel hearing the case.

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