The only thing that could have made Friday’s news sweeter would be to have received the DC Circuit Court of Appeals’ deciscion against the broadcast flag from the US Supreme Court instead. Still, it’s enough to get most of the IP-aware blogsphere excited. To wit: here, here, here, and everywhere else. Copyfight‘s synopsis was the best:
The American Library Association, Public Knowledge, EFF, et al. just won our joint challenge to the FCC’s ability to regulate consumer electronic devices that receive digital television signals, 3-0 at the D.C. Circuit Court of Appeals.
It’s a lengthy administrative opinion, but it basically says the FCC can’t regulate home use of digital content without explicit authority from Congress and that educators, librarians, and consumers have a legitimate interest in fair use of those materials.
Elsewhere, Donna Wentworth posted this banner quote from the decision:
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 status. And the agency’s strained and implausible interpretations of the Communications Act of 1934 do not lend credence to its position. As the Supreme Court has reminded us, “Congress does not…hide elephants in mouseholes.” Whitman v. Am. Trucking Association 531 U.S. 457, 468 (2001). In sum, we hold that the Commission only has general authority under Title 1 to regulate apparatus used for receipt of radio or wire communication while those apparatus are engaged in communication.
Legal language doesn’t much clearer than that. Does it?
This may eliminate one type of DRM, but Jenny Levine is still struggling with the DRM for an online movie rental vendor. She’s an experienced user, but the problem has apparently perplexed both the vendor and Microsoft support. A month of emails, screenshots, and chat haven’t solved the problem, which is now effecting her Rhapsody service too.
My laptop is officially crippled through no fault of my own, and let’s not forget that this is a relatively new laptop. I think I’m even up-to-date on OS patches. How must the average user feel going through all of this? Why does average user have to go through this? All I wanted to do was watch a movie and listen to some music!
David Rothman has often spoke out against DRM precisely because of experiences like Jenny’s, but also because of the way it increases development and support costs. Question: how long before the movie download vendor can recoup their support costs from Jenny’s purchases?
[update:] This didn’t take long. Teleread reports on a NYT story that shows the issue isn’t dead and Hollywood isn’t lying down. Rothman reminds us that they’ve been buying politicians for years, and they don’t throw all that money around just to get invited to parties.
[update:] Even as Hollywood goes begging to Congress to save the broadcast flag, Copyfight quotes Mike Goodwin saying:
…the only way to make the regulation [the broadcast flag] work at all is for the FCC to assume (or have Congress grant) broad jurisdiction that the Commission has never had before.
It would be ironic to see a Republican Administration and a Republican-dominated Congress turn the FCC into a massive tool of industrial policy, but that’s precisely what will happen if any version of the broadcast flag scheme is approved by Congress and sent back to the FCC.
And I’d agree with Mike, except that I’m concerned the only reason Republicans have been anti-Federalists all this time is that they’ve not had such complete control of government. We certainly haven’t seen any member of the Republican leadership suggest that they have too much control for themselves. “States rights” is the cry of the minority party, according to James Loewen. See my previous post on questions of federal power for more. For now, it’s better to remain on the alert, because I think David is right when he says “no library, school or digital consumer is safe while Congress is in session.”
[tangentally related:] The EFF offices in San Fran aren’t much to look at, but it tickled me to see them in the same neighborhood my sister lives in. Give those folks a hand, we’re all benefitting from what they’re doing.