Lawsuit Questions FCC's Authority to Mandate Copy Protection on All Hardware That Receives Digital TV Signals

Washington, DC - When the Federal Communications Commission's (FCC) broadcast flag mandate goes into effect next year, it will be unlawful to sell devices that can tune in digital television without imposing copy protection on the signal. Many groups have argued that the mandate will hobble people's ability to make fair use of their media. And late yesterday, nine public interest organizations -- including the Electronic Frontier Foundation (EFF), Public Knowledge (PK), and the American Library Association (ALA) -- told the US Appeals Court, DC Circuit, that the FCC exceeded its authority by imposing the broadcast flag regime.

The "flag" is a small amount of data included in a digital TV signal that gives instructions on how the programming may be used by devices that directly receive the signal. This has the potential to severely limit the lawful distribution, use, and backup of digital programs.

"This is a crucial case that will determine how much control the government and Hollywood will have over current and future digital media devices consumers love now and will in the future," said Gigi B. Sohn, president of Public Knowledge and co-counsel for the groups.

EFF staff attorney Wendy Seltzer said, "Right now, you can put an HDTV tuner card into a PC and build a digital video recorder that lets you watch digital television as you choose. We shouldn't have to trade that freedom for government-designed TVs."

The brief argues that the FCC has no authority to regulate digital TV sets and other digital devices unless specifically instructed to do so by Congress. While the FCC does have jurisdiction over TV transmissions, transmissions are not at issue here. The broadcast flag limits the way digital material can be used after the broadcast has already been received. "Bowing to a group of copyright holders led by the MPAA, the FCC promulgated a rule drafted by those corporate interests that will dictate design aspects of a vast array of consumer electronics - televisions, DVD recorders, TiVos, digital VCRs, iPods, and cell phones - for years to come," the brief reads.

ALA legislative counsel Miriam M. Nisbet said, "Two years ago Congress passed a law allowing for use of copyrighted works for distance education. Yet now the FCC through the broadcast flag would prevent schools from using an entire category of those works -- high definition television programs -- in distance education."

Filing the brief along with EFF, PK, and the ALA were the Association of Research Libraries, American Association of Law Libraries, Medical Library Association, Special Libraries Association, Consumer Federation of America, and Consumers Union.


Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation

Art Brodsky
Communications Director
Public Knowledge