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Court Strikes Down Broadcast Flag

Last week, a federal court gave a surprising victory to opponents of the FCC's digital broadcast copyright regulation. The US Court of Appeals for the DC Circuit ruled that the FCC can't mandate consumer electronics manufacturers to support digital copyright protection in their products. The regulation, which the FCC enacted in November 2003, required all consumer electronics hardware to support the so-called "broadcast flag," which provides copyright protection, by July 1, 2005. The broadcast flag lets broadcasters limit how consumers can store and copy digital TV shows. In its ruling, the court said, "The FCC has no authority to regulate consumer electronics devices 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." Content providers, including CBS, had threatened to stop providing high-quality digital content if the FCC didn't adopt the regulation, and the new ruling will test how serious those threats are. Digital TV adoption is rapidly increasing as consumers buy new sets, and it's unclear whether content providers will be able to get away with withdrawing support for digital content. To reenact the regulation, the FCC will have to get legislative approval from Congress, according to the federal court. It's a welcome — most likely short — victory for free-use proponents.

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