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Court ruling may negate FCC’s rulemaking on broadcast flag, consumer group contends

The Consumer Federation of America (CFA) said a new court ruling by the U.S. District Court in San Jose, Calif., has made the FCC’s rulemaking on the “broadcast flag” issue unsustainable.

“The (Dec. 17) ruling in the Sklyarov case (U.S. v. Elcomsoft) upholds the right of consumers to make copies of digital content they have legally obtained for use in legal ways, such as making back-ups or copies for use at a later time, to share with a family member, or to view on any device,” said Mark Cooper, CFA's director of research. “It establishes that companies have the right to manufacture and distribute hardware and software that supports these legal rights. This is an extremely important, proconsumer ruling that has far reaching consequences.”

An immediate impact of the ruling, Cooper said, is against the FCC’s proposal to require a broadcast flag in digital devices. “This proposal, which would make such legal copying difficult or impossible for average consumers to exercise their fair use rights, runs directly counter to the principles upheld in the court decision,” said Cooper.

The proposed rule would require equipment manufacturers to include a “flag reader” in every device that prevents or controls copying.

“Now that the courts have upheld the consumer’s fair use rights, there is absolutely no reason to continue with the flag rulemaking,” Cooper continued. “Imposing the flag will simply impose a double cost on consumers, without accomplishing copyright protection. Under the court ruling software developers can legally sell programs to consumers who want to exercise their rights.”

The FCC has not responded on the court's ruling.

The CFA's comments on the broadcast flag rulemaking are available at

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