May 6, 2005 | By Wendy Seltzer

Waving Flags of Victory

In a unanimous decision, the DC Circuit Court of Appeals tossed out the broadcast flag, the FCC rule that would have crippled digital television receivers starting July 1. The ruling came in ALA v. FCC, a challenge brought by Public Knowledge, EFF, 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 court ruled, as petitioners argued, that the FCC lacks the authority to regulate what happens inside your TV or computer once it has received a broadcast signal. The broadcast flag rule would have required all signal demodulators to "recognize and give effect to" a broadcast flag, forcing them not to record or output an unencrypted high-def digital signal if the flag were set. This technology mandate, set to take effect July 1, would have stopped the manufacture of open hardware that has enabled us to build our own digital television recorders.

This is extraordinary victory for fair use and innovation.

The fight isn't over yet, though. The flag's proponents at the MPAA will head to Congress to get authority for the rule, and we'll need your help to fight it.

If Congress takes this up, we hope it will address the important public interest concerns raised by this unprecedented federal technology mandate. During the development of the broadcast flag, both before and after it was submitted to the FCC, the concerns of smaller innovators (like Elgato Systems, leading maker of HDTV PVR software for the Mac), libraries, archives, consumer groups, and open source developers were ignored. Congress will have an opportunity to correct this mistake if it takes up this issue.

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