Broadcast Flag in Trouble

pdqlamb writes "USA Today reports an appeals court was not amused at the FCC's broadcast flag rule. Sounds like the judge bought into the argument that the FCC does not have the authority to dictate device design. The broadcast flag isn't quite dead yet, but at least it's in trouble."

Comments

Oh.. this aint over.

[Ckwop]

The broadcast flag isn't quite dead yet, but at least it's in trouble

This is by no means dead. When the entertainment industry can't foist something on you by the backdoor they use plan B: Ask the senate for a nice bit of special interest legislation.

You can tell the quality of your opponent by the cunning of their plan B, in this case their plan B is just as good as their plan A. In a way, I kinda admire the cunts.. :)

Simon.

Re:Oh.. this aint over.

[SnapShot]

Not to nit-pick, but removing environment enforcment provisions is a subsidy to the polluting industry and the antithesis of a free market. A common good (air, water, soil, whatever) is consumed by a single entity and the cost is born by others.

Re:Oh.. this aint over.

[Moofie]

A Microsoft monopoly is not a free market. It's not restricted by the government, it's restricted by Microsoft.

Just as my "freedom" does not extend to me being allowed to kill you, actors in a free market should not be permitted to unduly restrict access to that market.

Re:Oh.. this aint over.

[Phanatic1a]

The very *existence* of a corporation is regulated influence on the market. A corporation is a *legally-created* entity; absent the laws which allow them to exist, you'd just have a mass of individuals wholly liable for their actions.

That's something I rarely see free-marketers mention.

Re:Oh.. this aint over.

[sedmonds]

The market on its own would disagree with you. People don't value clean air, water, soil, etc. enough for their purchasing decisions to force polluters out of business, or to even change their production methods. This is where government has had to step in and apply environmental enforcement provisions. This is not a free market at work, it's regulated. There are other such goods which the government steps in on to fill the lack of a free market providing, such as building and maintaining roads and highways, provision of police services, provision of an army to protect form foreign agents, to name a few.

Re:Oh.. this aint over.

[sedmonds]

A monopoly most certainly can exist in a free market. A free market refers to the degree of regulation imposed from outside the market, on the market. Whether or not you think that free market actors should not be permitted to unduly restrict access to a market, that is not what a free market system is.

The antitrust legislation which is supposed to re move Microsofts ability to restrict access to the market from some good or service is what removes freedom from the market, not Microsoft leveraging products against each other to strengthen their market position. A free market provides the right for anyone to produce widgetX for windows, it does not provide that everyone have equal access to windows in order to do so.

Re:Nooooo

[DShard]

Social security allows you to leach off of other people's kids.

A scary argument

[Anonymous Coward]

But Sentelle questioned whether the consumer and library groups can lawfully challenge the FCC decision, since the rules in question affect television viewers broadly.

He's not saying the libraries aren't affected, just that they aren't affected more than anyone else. Ie., nobody can bring a lawsuit saying the government exceeded its bounds, as long as we're all getting screwed equally....if they throw the case out on that grounds, I'm gonna be really worried.

Re:Nooooo

[Undertaker43017]

"Clinton may have lied like Pinochio, but he balanced our checkbook."

Yeah, sure, you just keep believing that...

Maybe you should try reading a book like "Running on Empty", then maybe you will learn how BOTH parties put us in this mess.

Whose watching the watchers?

[Baavgai]

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

This may be a naive question, but if not the people affected by the FCC cannot challenge them, who the hell can?

Re:Whose watching the watchers?

[cpt kangarooski]

No, your argument is idiotic.

Yes, you can send a petition to Congress. People write or call or fax or email their Congressmen all the time. So what?

You're just talking about bitching about the law. Suing in federal court to prevent a law from becoming effective brings in the requirements of Article III. And Art. III sec. 2 states that the federal courts can only hear cases and contraversies. They cannot constitutionally hear mere bitching about stuff.

As this works out, unless you have been, or certainly will be, harmed by a law in a way that makes you stand out from the rest of the public, you have no standing to challenge it. Instead you should write to your Congressman.

Time for a hangin'

[PHAEDRU5]

This rocked me back on my heels:

"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."

Especially since the 10th amendment to the US Constitution says:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Got that, FCC boy? If you're not explicitly given the power, you can't exercise it.

Lawyers! Damn their oily hides!

It is too late

[MobyDisk]

It doesn't matter if the FCC is forced to repeal the broadcast flag. Manufacturers have already spent money to implement it, and the consumers probably won't force them to change it. Manufacturer's wallets are probably influenced more by the MPAA than by their customers. (As evidenced by PC manufacturers embracing DRM technologies and trusted computing.)

I bet that the flag will be repealed but manufacturers will continue to see the crippled hardware. Consumers will whine and complain but that will change nothing. The best we can hope is that it will become an excuse to sell you new hardware that is identical to what you just bought, except with a solder connection removed somewhere. The manufacturers then stand to double their money. Still, the consumer loses.

Re:If Slashdot Ruled The World...

[Anonymous Coward]

Cute, but to the extent you're serious, you're missing the point. The FCC has no authority to regulate communications equipment in this way. Congress did not authorize them to do so. The FCC admits that. The FCC argues that since Congress did not prohibit them from making this kind of regulation, they are allowed to do it. The judge is pointing out that if they are allowed to regulate something as long as it's not explicitly prohibited to them, then logically they can regulate almost everything. They can regulate washing machines, as long as there's no law stating "The FCC may not regulate washing machines."

Re:Sooner or later, this flag will no longer wave.

[ArmchairGenius]

That is a good point. But you also need to remember the comment was made by one judge on a panel of 3. And the D.C. Circuit probably has a dozen or more judges. So even if this panel all thought the FCC overstepped their authority, they could still be overruled en banc by the entire circuit.

And of course this is only one circuit, others could hold differently if multiple challenges were filed around the country.

So judicially, this could play out for a long time.

And of course, Congress could just pass a bill mandating the broadcast flag or expanding the FCC's authority so that they can readopt this rule.

Re:Sooner or later, this flag will no longer wave.

[nickname225]

I am a lawyer (although litigation is not my area). The general rule is that standing to bring a case requires more than the generalized injury that all citizens suffer (The thinking goes that congress is charged with addressing that sort of generalized injury). If the courts find that consumer groups (weak - because we are all consumers - thus the injury is generalized) and libraries (stronger) don't have standing, then the most likely plaintiffs will be hardware manufacturers - who can point to added costs. Are there any manufacturers who have voiced opposition to the flag? If not a good plaintiff may be hard to find. Courts have held that in some cases - bascially no one has standing.