Ruling Is a Victory for Innovation, Fair Use

Washington, DC - In a landmark case, the US Court of Appeals for the DC Circuit today struck down the "Broadcast Flag," an FCC rule that would have crippled digital television receivers beginning on July 1st.

The Broadcast Flag rule would have required all digital TV receivers, including televisions, VCRs, and personal video recorders like TiVo, to be built to read signals embedded in over-the-air broadcast television shows that would place certain limitations on how those shows could be played, recorded, and saved. The sale of any hardware that was not able to "recognize and give effect to" the Broadcast Flag, including currently existing digital and high-definition television (HDTV) equipment and open source/free software tools, would have become illegal.

The Electronic Frontier Foundation (EFF) joined Washington DC-based advocacy group Public Knowledge in fighting the rule in the courts, together with Consumers Union, the Consumer Federation of America, the American Library Association, the Association of Research Libraries, the American Association of Law Libraries, the Medical Library Association, and the Special Libraries Association. The coalition argued that the rule would interfere with the legitimate activities of technology innovators, librarians, archivists, and academics, and that the FCC exceeded its regulatory authority by imposing technological restrictions on what consumers can do with television shows after they receive them.

The court agreed, ruling unanimously that the FCC overstepped its authority when it asserted control over the design of any device capable of receiving HDTV signals.

"This case is a great win for consumers and for technology innovation. It's about more than simply broadcasting. It is about how far the FCC can go in its regulations without permission from Congress," said Public Knowledge President Gigi Sohn. "Had the flag been implemented, Hollywood, acting through the FCC, would have been able to dictate the pace of technology in consumer electronics. Now, thankfully, that won't happen. While we recognize that the content industries may ask Congress to overturn this ruling, we also recognize that Congress will have to think very hard before it puts restrictions on how constituents use their televisions."

Since the FCC announced the July 1st deadline, EFF had been encouraging consumers to beat the Broadcast Flag by purchasing HDTV receivers manufactured before the restriction, as well as teaching them how to use the hardware with free, open-source digital video recorder applications such as MythTV. Part of the education campaign was a daily countdown to the date when the Broadcast Flag was to take effect.

"The clock will now stop," said EFF Special Projects Coordinator Wendy Seltzer, who led the campaign and organized nationwide HDTV "build-ins." "Now we can use the build-ins to celebrate the freedom to use innovative technology, rather than racing to beat a deadline for shutting it down."


Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation

Jason Schultz
Staff Attorney
Electronic Frontier Foundation