[opendtv] News: Judges Take Shots at Broadcast Flag

http://www.broadcastingcable.com/article/CA505848.html?display=Breaking+News&referral=SUPP

Judges Take Shots at Broadcast Flag

By Bill McConnell -- Broadcasting & Cable, 2/22/2005 4:59:00 PM

During a court hearing Tuesday, two of three federal appeals judges 
showed open hostility to a Federal Communications Commission rule 
that requires digital TVs and VCRs to be equipped to block illegal 
transmission of television shows and movies over the Internet.

If their acerbic questioning is any indication, the fate of the 
so-called "broadcast flag" now may depend on whether one of those 
judges decides that activists suing to eliminate the broadcast flag 
mandate have standing to bring the law suit.

"You crossed the line," Federal appeals Judge Harry Edwards told FCC 
lawyer Jacob Lewis during oral argument in the case. Judge David 
Sentelle appeared to agree that the FCC had no authority to mandate 
that TV equipment include flag technology.

But Edwards' vote to strike down the FCC is not guaranteed. Edwards 
also questioned whether the American Library Association and other 
groups challenging the rule face sufficient harm from the rule to 
fight in court.

The other member of the panel, Judge Judith Rogers, appeared to 
believe that opponents of the law did have standing to sue, but that 
the FCC acted within its authority. Oddly, Edwards could pair with 
her to grant activists' standing and then team with the other judge, 
David Sentelle, to strike down the law.

The FCC in 2003 required personal computers and digital storage 
devices be equipped to recognize a code, or flag, embedded in TV 
signals indicating to what extent programming may be transmitted over 
a computer network.

The code could indicate that unrestricted copying is permitted, 
one-time copying,  or none at all.

The technology won't stop TV programs from being copied to a DVD or 
stored on a personal computer, but it would stop a user from sharing 
that file with another computer user.

Edwards and one of the other two judges appeared to agree with the 
critics and told FCC lawyer Jacob Lewis that the law does not give 
the agency specific authority to dictate how electronic devices must 
be made.

A ruling by the panel is expected in two or three months.

The caveat in oral arguments is that some judges play devil's 
advocate to test the strength of various points, so their decisions 
aren't guaranteed to track with the tenor of the questions.
 
 
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