Consumer groups launched their first battle against the broadcast flag this week as a panel of federal judges listened to oral arguments from both sides.
The groups--including the American Library Association, Public Knowledge and the Electronic Frontier Foundation (EFF)--filed the suit in the U.S. Court of Appeals, D.C., accusing the FCC of exceeding its authority in mandating the broadcast flag without permission from Congress.
Implementing the flag would require TV manufacturers creating sets that receive digital over-the-air signals to produce sets that read the flag. The deadline for putting the FCC-mandated digital signals into action is July 1.
"Consumers' ability to make and view digital copies will not be affected; the broadcast flag seeks only to prevent mass distribution of content over the Internet," the FCC said in an appeal briefing.
Also in the briefing the FCC determined that "preemptive action" is needed now "to forestall any potential harm to the viability of over-the-air television."
The flag contains code to prevent people from pirating TV shows and sending them over the Internet, but consumer groups say that it also prevents people from simply sharing content across devices in the home.
"The marketplace is going to create media fiefdoms," said Annalee Newitz media coordinator/policy analyst, (EFF), who called the flag an anti-consumer mandate.
Content recorded on a DVR for example, wouldn't be playable on an older device that isn't flag-compliant, bulldozing consumers into costly upgrades, according to Newtiz.
"It's understandable that you'd want to have some kind of copy protection to keep people from engaging in massive infringement, but this [sharing content between consumer devices] isn't that," she said.
For Newitz, the ultimate question is this, "Why does the FCC have the authority to mandate what kinds of devices to market?"
Which perhaps is why a federal circuit judge told FCC lawyers that they had "crossed a line."
