This has the potential to be a very important case. If the FCC loses
on this one, it will probably mean that hardware copy protection on
computers, DVD players, and other devices is probably dead -- unless
the entertainment industry can get its patsies in congress to act.
U.S. appeals court debates anti-piracy TV technology
WASHINGTON (AP) A U.S. appeals panel on Tuesday challenged new federal
rules requiring certain video devices to have technology to prevent copying
digital television programs and distributing them over the Internet.
U.S. Circuit Judge Harry Edwards told the Federal Communications
Commission it "crossed the line" requiring the new anti-piracy
technology in next-generation television devices. But another appeals
judge on the panel questioned whether consumers can challenge the
FCC's rules in the courtroom.
The technology, know as the broadcast flag, will be required after
July 1 for televisions equipped to receive new digital signals, many
personal computers and VCR-type recording devices. It would permit
entertainment companies to designate, or flag, programs to prevent
viewers from copying shows or distributing them over the Internet.
Edwards, the former chief judge of the U.S. Circuit Court of Appeals
for the District of Columbia, questioned the FCC's authority to impose
regulations affecting television broadcasts after such programs are
beamed into households.
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.
"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
Another circuit judge, David Sentelle, agreed. Sentelle acknowledged
entertainment companies could be reluctant to broadcast high-quality
movies or TV shows that can't be protected against copyright violators
but said that wasn't the FCC's problem.
"It's going to have less content if it's not protected, but Congress
didn't direct that you have to maximize content," Sentelle said. "You
can't regulate washing machines. You can't rule the world."
Consumers groups, including library associations, have contested the
FCC requirements, asserting that the rules will drive up prices of
digital television devices and prevent consumers from recording
programs in ways permitted under copyright laws.
The lawyer for the consumers groups, Pantelis Michalopoulos, argued
that the broadcast flag could preclude libraries from copying
television programs for educational or teaching purposes.
But Sentelle questioned whether the consumer and library groups can
lawfully challenge the FCC decision, since the rules in question
affect television viewers broadly. Appeals court procedures require
groups to be able to show a particular injury before judges will
consider a case; the FCC did not argue this point.
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. A decision by the court
could happen within months.
Copyright 2005 The Associated Press.
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