The FCC's Digital Flag Ruling

[edtyct]

Almost two years ago, the FCC mandated that any tuner or other device able to receive digital broadcasts must be able to read embedded flags protecting the content from unauthorized duplication and redistribution. You can imagine how much equipment would be affected by this ruling. The American Library Association and other public-interest groups challenged the FCC's jurisdiction in this matter, fearing loss of the right to fair use and dying to take the matter to court. Last month the ALA finally got a court date at DC's Federal Court of Appeals. The first problem was, however, that its complaint about fair use did not constitute clear grounds for legal action. The ALA had to come up with something else; it settled on the unjust financial burden that the FCC was foisting on hardware manufacturers. The second problem was that the ALA and its allies were not injured parties in this supposed dispute. The equipment producers had made their pact with the devil long before. Hence,the court rejected the ALA's case, though it also had little sympathy with the FCC's actions, suggesting that a legitimate plaintiff may well exist somewhere. The third problem is that even if a strong case against the FCC is feasible, unless someone takes up the gauntlet, it doesn't matter--all of which leads to the question, If a digital broadcast goes out over the air and no one hears it, did it make a sound? Or, What if they held a broadcast, and nobody came?

Ed