Bye-bye broadcast flag

Just in the nick of time, the U.S. Court of Appeals for the District of Columbia has shot down the Federal Communications Commission's over-reaching efforts to require hardware to honor the "broadcast flag." The broadcast flag rule was to go into effect for devices manufactured on or after July 1, this year. The PDF of the decision, for those who want to read the entire 34 pages, is available.

The basic legal question was, does the FCC have the right to dictate the specs of devices that receive broadcasts? The FCC clearly has something to say when it comes to the broadcasts themselves, but the attempt to lay down rules for the equipment we use to view those broadcasts is something else entirely. Obviously, the Court of Appeals held that the FCC was over-reaching its authority. In fact, the decision notes that in "the seven decades of its existence, the FCC has never before asserted such sweeping authority."

So, what does all this have to do with open source? Simple. Part of the FCC's broadcast flag mandate would have required devices to be "robust" against modifications that would enable access -- which pretty much rules out tuner cards with open source drivers, and may have even made something like MythTV illegal. Note, however, that this decision doesn't prevent manufacturers -- and even open source projects -- from supporting the broadcast flag if they feel it's worthwhile. (What's truly comic is that members of the entertainment industry don't much care for these artificial restrictions on content when they're forced on them.)

The problem isn't that the FCC, and the entertainment industry, are trying to stop copyright infringement -- it's that they're more than happy to throw away fair use rights and prevent legitimate uses in order to stop infringement, without even proving that the solution would actually work to curb infringement in the first place.

The fight is not completely over, of course. (And kudos to the American Library Association, Public Knowledge, Electronic Frontier Foundation and others for fighting the good fight so far.) If they fail in the courts, the entertainment industry is likely to look to Congress to grant the FCC the jurisdiction or otherwise enact legislation that would force the broadcast flag on the public. The Godwin's Law blog suggests this is unlikely to succeed, but I would still suggest that interested parties contact their representatives to make it known that forced compliance with the broadcast flag is not something to be desired.