The process by which rulings by an administrative agency are attacked (or allowed) by the judicial system have always piqued my curiosity. Sometimes we see courts making decisions that just make sense and at other times, I cannot fathom the logic. The latest case that brought a smile to my face is a ruling by the US Court of Appeals, D.C. Circuit that says:
The insurmountable hurdle facing the FCC in this case is that the agency's general jurisdictional grant does not encompass the regulation of consumer electronics products that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission...
I had always questioned the FCC's ability to regulate the actual manufacture of items purchased by the general public. (I fail to understand the V-Chip that manufacturers were required to install into video devices like televisions, but that decision was made at a time that I hadn't put much thought into how administrative agencies regulate what we can or cannot do. Also, that whole issue would have been a hard one to debate, politically. Imagine a politician willing to stand up and say "I don't believe that parents should have built in controls over what their children may watch on tv..." You know it would have been spun that way had anyone fought the V-Chip bill [loudly].) The Court affirmed my belief that the FCC didn't have that right. If the court would have ruled that they did indeed have such powers, I was hoping for a mini rebellion from the people who pay attention to such things and typically fight on behalf of consumer rights.
My problem with the Broadcast Flag is two-fold: 1) I don't agree with the powers granted to agency regulators in the US. They are not elected bodies and yet are able to make law. Think about that - you have no control over those who write and pass the laws. Of course, said laws are shrouded behind the guise of being for the benefit of our health, safety and sanity, but the fact is that there is no direct accountability for those who pass the laws by those who must follow them. 2) I simply cannot accept the idea that a law would dictate a characteristic of a product that would prevent me from using it in a similar fashion I have used similar, yet less advanced pruducts - e.g. The VCR. While we have grown accustomed to our laws dictating the way things are built in regards to safety (airbags being mandated in cars, for example), this does not mean that such policy should be expanded to all types of products. It has long been held that consumers have a right to fair use of media we watch, record or purchase. The concept of fair use has been sold to us in the following form: as long as the media is kept soley for personal use, it is ok to transfer, reformat or generally do whatever we want with it. As digital reproduction has become easier and cheaper, media creators have worried about their rights. In my opinion, this has gone from a healthy concern to a type of paranoia. Just as it has become easier to reproduce, digital media, it has also become more feasible to track what we are doing with it. Even better, media companies have decided to fight the tide of easy piracy by simply lobbying to regulate what we are allowed to do; they have gone so far as to believe that our living rooms are fair game. I have noted before my distaste of gratuitous piracy. File sharing and trading copyrighted works has little negative moral implications these days. While I understand the desire to reach into the cookie jar (literally and figuratively), only so much makes sense. The point of this post, however, is that even though there are a lot of people out there doing illegal things, we don't need to heap onto the pile more ways to criminalize (legally) behavior. I still believe that I deserve rights to the things I purchase. I also should continue to be able to manipulate media obtained over the airwaves. The idea that there is a time limitation to my TiVo recordings is absurd. What is the difference between a digital and analog recording? I don't think anyone can come up with a logical difference.
The fact is that the broadcast flag is yet another attempt to build legal and not market driven controls over how we treat media. I'm glad our courts found a way to agree with me (even though they didn't know it).
