A U.S. appeals court on May 6 threw out new federal rules requiring anti-piracy technology that would have limited how educators and other consumers could record and play their favorite television programs in the future.

The three-judge panel for the U.S. Circuit Court of Appeals for the District of Columbia determined that the Federal Communications Commission (FCC) had exceeded its authority when it announced it would require such technology in digital televisions and other consumer electronic devices sold after July 1.

“This opens up the future for consumers to have more wide-ranging video experiences,” said Art Brodsky, a spokesman for Washington, D.C.-based Public Knowledge, a consumer advocacy group. “They will be able to take advantage of new products and features that won’t be dictated to them by the entertainment industry.”

The controversial rules were challenged by consumer groups, including education and library associations. Their lawyers complained the FCC requirement would drive up the prices of digital television devices and prevent consumers from recording or distributing programs in ways permitted under copyright laws. For example, under the rules, educators might be prohibited from recording certain digital TV shows for viewing in their classrooms–or from rebroadcasting them online in distance-education classes.

The technology, known as the “broadcast flag,” would have been required after July 1 for televisions equipped to receive new digital signals, many personal computers, and VCR-type recording devices. It would permit entertainment companies to designate, or flag, programs to prevent viewers from copying shows or distributing them over the internet.

Emily Sheketoff, executive director of the American Library Association’s Washington, D.C., Office, called the ruling “a big victory” for schools, libraries, and consumers.

“The broadcast flag seriously undermined the rights allowed nonprofit educational institutions under the TEACH Act to distribute digital content over the internet for distance-learning purposes,” Sheketoff said. “It even imposed restrictions on how consumers are able to use digital content in their own homes. We are happy the court has restored the rights of libraries and consumers by ruling that the FCC does not have the right to mandate technological copy protections.”

Entertainment companies said the technology was needed to block viewers from recording high-quality, digital versions of television shows and films and distributing them free of charge online.

The FCC acknowledged it never had exercised the authority to impose regulations affecting television broadcasts after such programs are beamed into households, but it maintained this was permitted by Congress because lawmakers didn’t explicitly outlaw it.

“We categorically reject that suggestion,” the appeals panel said.

The appeals decision will launch an aggressive lobbying effort by entertainment companies in Washington to persuade lawmakers to require new technology to enforce copyright protections.

The May 6 ruling was no real surprise. During courtroom arguments, U.S. Circuit Judge Harry T. Edwards told the FCC it had “crossed the line” by requiring the new anti-piracy technology for next-generation television devices and rhetorically asked the FCC whether it also intended to regulate household appliances (see “Court weighs FCC TV-recording ban“).

“You’ve gone too far,” Edwards told the FCC’s lawyer back in February. “Are washing machines next?”


Federal Communications Commission

Public Knowledge

American Library Association