Did the FCC have jurisdiction to enter the broadcast flag order in November 2003? If it didn't, we'll need to go to Congress to discuss all this.
Like the Grokster case, the flag situation raises this question: can one industry force another to constrain new general purpose technologies in the name of copyright protection? Like the CALEA dispute (prompted by the demands of another great industry -- law enforcement), the flag represents an attempt to have high-tech innovators ask permission before innovating.
Read the entire post -- and don't forget to check out Prof. Crawford's Shortness of Vision: Regulatory Ambition in the Digital Age [word doc].