Burning the Broadcast Flag

By Rob Pegoraro
The Washington Post
Monday, May 9, 2005; 8:09 AM

The FCC's silly broadcast flag got the hook Friday courtesy of a panel of federal judges. While this is something to celebrate, I discuss below how the ruling doesn't mean the entertainment industry won't keep trying to control how you use your entertainment hardware. Now, on to this week's personal tech line-up...

I was going to start this newsletter with the word "spam," the subject of yesterday's column, but I was afraid the use of that word would get this newsletter deleted by too many spam filters. Oh, wait, I just wrote "spam" again.

That's just one of the problems I discussed in that piece. I'd love to write a column that said "here are the three things to do to ensure you never get any more spam," but such a column would be fiction at best, fraud at worst. So instead I wrote about what you can do try to cut down on the amount of spam you get. The column is online here.

Also in Sunday's tech section, Mike Musgrove covered Verizon's new FiOS fiber-optic service, which in select neighborhoods can deliver spam to your inbox 10 or 15 times faster than cable or DSL (ha ha).

Web Watch noted the second anniversary of the business-networking site LinkedIn, and all the "will you be my contact" e-mail it's wrought. We also reviewed Unreal Championship 2, a strange, strange game called The Journey to Wild Divine, and Magix Ringtone Maker. And in Help File, I addressedthe legality/ethics of using a stranger's WiFi connection, and how to edit the search engines built into Firefox.

Finally, this heads-up: Look in Friday's Post for the first of three special technology sections we plan on running this year. Friday's will focus on telecom services, outlining your options for voice, TV and Internet service (among many other things). I'll be online to take your questions at noon ET on Friday -- submit a question early if you can't join me then.

A Win For Consumers

Friday morning, the U.S. Court of Appeals for the D.C. Circuit hit the 'Delete' key on the Federal Communications Commission's " broadcast flag" regulation for digital television. By rejecting this unnecessary, intrusive intrusion, the court's three-judge panel gave a huge victory to anybody who buys a TV, makes TV hardware or wants to make TV hardware better.

The court fed the flag regulation into the shredder on pretty straightforward grounds: Stopping people from copying TV shows in the "wrong" ways is none of the FCC's business.

As a regulatory agency, the FCC can only do those things that Congress specifically allows it to. The flag regulation, which had nothing to do with the reception or transmission of TV signals (the FCC's actual bailiwick) and instead affected what happened after the reception of a digital TV program over the air, was therefore totally out of line.

As the court wrote in some of the more unambiguous language you'll see in a ruling: "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. And the agency's strained and implausible interpretations of the definitional provisions of the Communications Act of 1934 do not lend credence to its position." (To translate that from legalese, "What the #*&%$!!! were you FCC guys thinking?")

I was delighted by this ruling. Good news about copyright politics has been awfully hard to find over the last several years; courts and politicians seem all too ready to convert copyright holders' Constitutionally limited rights into veto power over the work of entire industries and the private conduct of citizens everywhere. For every absurd attempts at a copy-control mandate that got the rejection it deserved (such as the Orwellian " Consumer Broadband and Digital Television Protection Act" proposed in 2002), another one has been in the works.

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