Burning the Flag

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One of the FCC's more onerous regulations—the infamous Broadcast Flag—has just been slain by the D.C. Circuit Court of Appeals.

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  1. The [Commission’s] position in this case amounts to the bare suggestion that it possesses plenary authority to act within a given area simply because Congress has endowed it with some authority to act in that area. We categorically reject that suggestion.

    Such pretty words. I’d like to see them more often.

  2. This is frickin’ huge. There are so many options now for next gen vid — that’s all can say.

  3. A juicy tidbit from one of the articles:

    During oral arguments in February, the three judges on the appellate panel foreshadowed this week’s decision by suggesting that the FCC had overstepped what the law permits.

    “You’re out there in the whole world, regulating. Are washing machines next?” asked Judge Harry Edwards. Quipped Judge David Sentelle: “You can’t regulate washing machines. You can’t rule the world.”

  4. So now the MPAA and their pals will just purchase favorable legislation from Congress that gives this authority to the FCC or just mandates a broadcast flag directly. It’s all still coming, they wouldn’t have it any other way.

    This is surely a nice victory for the forces of common sense but I can’t get my hopes up that it amounts to anything more than a delay.

  5. According to Forbes, the “FCC acknowledged the agency never had exercised the authority to impose regulations affecting television broadcasts after such programs are beamed into households, but it maintained that was permitted by Congress since lawmakers didn’t explicitly outlaw it.”

    In law school I didn’t pay too much attention during Constitutional law lectures as I had already formulated the opinion that the longer the opinion, the more likely the individual would get fucked over in favor of the government, but when did the line of reasoning that permits negative lawmaking become an argument for allowing the government to expand its power?

    Scary isn’t it?

  6. I thought the broadcast flag idea sucked, but I had other entertainment industry concerns at the time. And broadcast television is mostly useless to me, other than sporting events, which I don’t record anyway.

    I’m glad this was overturned, and I’m glad common sense prevailed. But in the bigger scheme of things, I don’t know how this changes things.

    I think the MPAA, et al, are going to have to eventually learn the limits of their ability to force adherence to their monopoly. Civil disobedience has a way of showing just how enforceable a law is.

  7. The implications of this ruling, assuming it holds, should be two-fold:

    1. You’ll have much less trouble moving HD video that you’ve recorded to your DVR onto other devices (PCs, handheld devices, other DVRs) for viewing and editing purposes.

    2. It’s much more likely that HD content copied onto a DVR will end up on BitTorrent sites and P2P networks.

    The first result is clearly a positive, the second less so. But until Hollywood gets serious about making most of their content legally available for sale and rental online – and they’ve long had the resources and technology to do it – my sympathy is limited. If the dinosaurs in the music industry are any guide, Hollywood will only begin to do this once they feel meaningfully threatened by online piracy.

  8. Funny, before I read the attached article I thought “Broadcast Flag” was the American flag waving in the background when the network goes off the air at the end of an evening. You know, the one with the National Anthem playing in the background.

  9. That was my first thought too, Panurge.

  10. What do you old guys mean by “goes off the air at the end of an evening”? I don’t understand. And where does the National Anthem come in?

  11. Windypundit-

    Let me correct myself. Years ago, the networks would “sign-off” at the end of an evening, and there would be dead air until the first program the following morning. For this period of time, the screen would usually be nothing but color bars.

    Before they signed off, they would play the National Anthem (for some reason), and there would be an American flag waving in the background, usually behind Mount Rushmore. Why they had to get so Ashcroft-like just to announce the end of the day’s programming is beyond me, but that’s what they did. The segment would end with something like, “Join us tomorrow morning at [whenever], and thank you for viewing our programming,” as if we had been watching the network all day.

    Of course, this has all been replaced by unspeakably depressing infomercials that run from 3:00 AM to 6:00 AM, or whenever talentless hack Carson Daly goes to sleep and the only slightly more talented hack Matt Lauer wakes up.

    So I thought the “Broadcast Flag” was a reference to that flag flying George, Abe, Teddy and Tom. My bad.

  12. …flying BEHIND George, Abe, Teddy, and Tom. Jesus, I can’t tyype tonight.

  13. Er. I was kidding. I’m old enough to remember that too.

    But I’ve run into kids who don’t know what I’m talking about when I mention dozing off on the couch and waking up to the National Anthem. Nowadays, whenever I doze off in front of the television, it’s always Girls Gone Wild when I wake up…

  14. I believe that’s called “progress”. ;?)

    I must say that I was surprised and pleased by this decision. Now for their next trick, the DC Circuit need to start reining in the DEA et al.

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