Bye Bye, Broadcast Flag?

Wow, what a shocker. A U.S. Federal Appeals Court ruling earlier today has reportedly voided the FCC's Broadcast Flag requirement and July 1, 2005 deadline, claiming that the FCC had overstepped its boundaries and striking a blow for consumer fair-use rights advocates. Earlier Slashdot coverage, coincident with the conclusion of plaintiff and defendant arguments, forecasted that the court would sidestep the issue (in a maneuver reminiscent of the Supreme Court's dodge of the Pledge of Allegiance case) by claiming that the consumer and library groups that brought forth the lawsuit weren't valid claimants. I commend the court on its cojones.

Appeals (no surprise) are likely, and in such a case it's also unknown whether or not the FCC's draconian dictates will be allowed to proceed pending ultimate resolution. If such a scenario plays out, and if you want to be able to record your HDTV programs for future one-time viewing at a location and on equipment of your choosing, I strongly suggest you quickly visit the Electronic Frontier Foundation's cache of suggestions for acquiring and using broadcast flag-disregarding hardware and software. This gear is perfectly legal to obtain until July 1 and to use subsequent to that date, since the FCC's own order states that it can "remain functional under a flag regime, allowing consumers to continue their use without the need for new or additional equipment."

Unfortunately, neither today's ruling nor the EFF info will fix my living room setup; my Samsung SIR-T165 over-the-air HDTV tuner box is broadcast flag-ready and, its firmware is hardware-locked. You guessed it, to eliminate the possibility of flag-dodging rogue hacks. I'll never to be able to upgrade it to patch its numerous Firewire-based bugs (timer control of your D-VHS deck? Don't think so. Playback of D-Theater content through the supposedly 5C-compliant SIR-T165? Naaahhhhh). And more generally I wonder if today's ruling is too late and the damage has already been done. How many television stations who have already turned on broadcast flag will just leave it enabled, and how many consumers who've bought or firmware-upgraded to broadcast flag-aware gear will therefore have their fair use rights trod upon?

Finally, here's a qualifier. While I strongly support consumers' rights to time- and space- shift their television viewing pattterns (which, I'll point out, are the only scenarios allowed by the Betamax decision; archive-forever and share-copies-with-a-thousand-of-your-closest-Internet-friends are no-no's), I'm also mindful of content owners' concerns (it gets really painful straddling this fence after a while). Two weeks ago at NAB I attended a seminar on "piracy - mitigating the risk through content security" in which a number of disturbing factoids were tossed out at the crowd. Did you know, for example, that unsanctioned DVDs are twice as profitable as the most profitable drugs, thereby explaining why organized crime has moved in on the opportunity? And that broadcasts of Alias regularly appear on file-sharing networks within a few minutes of their East Coast conclusions, nearly two hours before the broadcast begins on the West Coast? Chew on those tidbits before you definitively choose sides. The shades of gray are here again.