Appeals court rules: Hands off the hardware, FCC! But...

[Musicat]

Court Axes Anti-Piracy Rules

A federal appeals court Friday threw out controversial regulations that would require the coming generation of digital televisions, DVD recorders and personal computers to contain anti-piracy technology.
…

The broadcast flag rules would have required digital televisions, DVD recorders and other consumer devices made after July 1 to recognize a digital code transmitted in the broadcast stream. These new digital TVs would permit recording only on devices that obey copy-protection rules.

The flag was intended to prevent people from recording digitally broadcast shows on their personal computers…

While I personally applaud this decision, I don’t see how this –

"We can find nothing in the statute, its legislative history, the applicable case law, or agency practice indicating that Congress meant to provide the sweeping authority the FCC now claims over receiver apparatus,’’ the court wrote.

– squares with past FCC rules requiring closed-captioning, V-chips, and UHF channels in TV receivers. What’s the difference? The feds can require manufacturers to build a UHF circuit inside a TV but not a broadcast flag recognition circuit?

[rfgdxm]

@Musicat

Court Axes Anti-Piracy Rules
While I personally applaud this decision, I don’t see how this – – squares with past FCC rules requiring closed-captioning, V-chips, and UHF channels in TV receivers. What’s the difference? The feds can require manufacturers to build a UHF circuit inside a TV but not a broadcast flag recognition circuit?

Good point. I think the issue is people like recording programs. Consumers aren’t demanding this anti-piracy chip.

[asterion]

Now, can we get the courts to throw out the mandated switch to HD? Consumers generally don’t want that either.

[Sam_Stone]

@asterion

Now, can we get the courts to throw out the mandated switch to HD? Consumers generally don’t want that either.

No, because the reason for the switch to digital TV is required to free up bandwidth needed for other things. Regulating bandwidth is within the FCC’s mandate.

Is the FCC requiring a change to HD? I was under the impression that it was just a change to digital. Digital does not equal HD.

[Captain_Amazing]

@Sam Stone

No, because the reason for the switch to digital TV is required to free up bandwidth needed for other things. Regulating bandwidth is within the FCC’s mandate.

And in the case of the switch to digital, Congress explicitly authorized it. (it was an accounting trick they did, so they could claim there was a budget surplus).

[Musicat]

Further reading of the decision and a better news article from Wired may answer the question. The court feels that the FCC is entitled to regulate on-air stuff but not off-air:

Specifically, the court admonished the FCC for exceeding what’s known as its “ancillary authority” over some reception devices (consumer-electronics products) by trying to regulate a function not directly related to the actual transmissions themselves.

“In other words, the Flag Order imposes regulations on devices that receive communications after those communications have occurred; it does not regulate the communications themselves,” the court stated. “Because the demodulator products are not engaged in ‘communication by wire or radio’ when they are subject to regulation under the Flag Order, the Commission plainly exceeded the scope of its general jurisdictional grant.”

Under that philosophy, the V-chip, closed-captioning and VHF/UHF tuner requirements for a TV are OK, but mandating the insides of an off-air recorder for an off-air function is not.

I guess that makes some sense.

[MsRobyn]

SCOTUS ruled in 1984 that recording broadcasts for later viewing was a form of “time-shifting”, and that consumers have every right to do so, as long as they’re not selling copies or charging admission to view the recording. So this decision isn’t exactly a surprise, at least so far as home recording is concerned.

That said, I don’t think anyone is claiming that piracy isn’t a problem. But there are existing laws to deal with that, and the court is saying that it’s not the FCC’s job to mandate technological changes to equipment when existing law can be enforced.

I can respect another’s copyrights; after all, I create intellectual property almost every day, and I’d be pretty upset if someone else took it without asking. I just don’t think the FCC should be in the position of forcing me to buy a new TV and recording device when the programming providers have the right to sue guilty parties for copyright infringement.

Robin

[smiling_bandit]

The feds can require manufacturers to build a UHF circuit inside a TV but not a broadcast flag recognition circuit?

I don’t recall those going to the courts anyway.

[Steve_MB]

@Captain Amazing

And in the case of the switch to digital, Congress explicitly authorized it. (it was an accounting trick they did, so they could claim there was a budget surplus).

For this reason, the MPAA threat of “withholding” digital programming is a bluff – unless Congress reverses this decision (which they won’t because they need the money from selling the analog TV spectrum), the only way to carry out the threat is to simply quit broadcasting TV shows.