On May 6, 2005, the United States Court of Appeals for the District of Columbia Circuit ruled (PDF) that the Federal Communications Commission (FCC) had overstepped its authority when it issued a regulation in 2003 that would have required consumer electronic devices such as TVs to include a "broadcast flag"--a device that would prevent digital TV shows from being copied and then shared. The court also found that ARL had standing to file this challenge. ARL with others in the Library Copyright Alliance (LCA), Public Knowledge, and other consumer organizations challenged the FCC's authority to implement the broadcast flag rule.

In an earlier ruling, the court had asked the petitioners to clarify their standing before the court. The petitioners responded to the court's request with affidavits from a wide range of individuals who would be affected by the regulation. In its ruling, the court noted that an affidavit by Peggy Hoon of the North Carolina State University resulted in ARL having standing in the case. In their ruling, the court noted, "The FCC does not dispute that the NCSU Libraries' activities are lawful. And as petitioners point out, if the regulations implemented by the Flag Order take effect, there is a substantial probability that the NCSU Libraries would be prevented from assisting faculty to make broadcast clips available to students in their distance-learning courses via the Internet."

This is an important case concerning how the government should not be able to mandate the use of certain technologies and for allowing public interest groups to file before courts on a wide range of issues.

It is expected that proponents of the broadcast flag rule such as the Motion Picture Association of America will look to Congress to implement the broadcast flag regulation via legislation.

Background

On November 4, 2003, the Federal Communications Commission (FCC) announced that it would require "the adoption of broadcast flag technology in television receivers and related equipment by [July] 2005." A broadcast flag is a signal imbedded in digital content that can interact with digital devices that have been engineered to recognize it. The signal influences the device's performance, thus allowing content providers to limit the public's use of their content, in particular, redistribution of content via the Internet. Affected digital devices include not only digital televisions, but also VCRs, DVD players, and personal computers. All such devices manufactured after June 2005 will have to recognize the broadcast flag and follow FCC rules for content protection. The decision was a disappointment to the library community who urged the FCC not to adopt a broadcast flag rule last December.

Initial brief of Public Knowledge, ARL, and others, October 4, 2004 [PDF]

Reply brief of Petitioners, December 2, 2004 [PDF]

Statements and Letters

On December 9, 2002, ARL joined other library associations in submitting comments to the FCC on the promulgation of a broadcast flag rule. According to the comments, "any broadcast flag rule could effectively limit the public's access to information, and impair its ability to use content in new and innovative ways. . . . Libraries function today because of important general exceptions and library specific exceptions in the copyright law that control the use of content. It is imperative that such limiting principles be maintained in any regulation of the digital information environment."

ARL joined nine other consumer, civil liberties, and library groups in statement that claims the FCC exceeded authority in issuing a "broadcast flag" requirement for over-the-air digital television, October 2004. See the May 2005 Public Knowledge press release about this ruling.