Flag Foes Must Demonstrate Standing


D.C. Appeals Court Judge David B. Sentelle apparently meant it when he expressed concern during oral argument (Feb. 22) about whether the American Library Association, Public Knowledge and others had standing to sue the Federal Communications Commission over its adoption of the broadcast flag.

Sentelle said Tuesday he would dismiss the case for lack of juridiction. Fortunately for the petitioners, he was writing a dissent.

The majority of the three judge panel--Judges Harry T. Edwards and Judith Rogers--decided to give American Library Association (ALA) et.al. two weeks to justify their standing to challenge the flag, which would imbed a code in digital broadcasts to prevent them being widely copied and distributed.

To establish standing, they must identify a member of any of their groups whose redistribution of TV content, say a news broadcast for distant-learning purposes, would be demonstrably and directly harmed by the flag.

In order for an association to have standing, it must show that it is representing at least one person who would have standing if they were bringing the suit as an individual.

The groups failed to sufficiently establish standing in their original petition and oral arguments, assuming their standing was self-evident. The FCC did not challenge on that point, but the Motion Picture Association of America did.

The majority concluded Tuesday that the groups had reasonably assumed their standing was self-evident, even if that did not prove to be the case. Then, the judges effectively gave them the extra two weeks to justify themselves.

Sentelle saw the majority as improperly bending over backwards to provide a "roadmap" to standing.

MPAA and the FCC will have 10 days to file after ALA responds to the court's request.

Studios argue that they need the flag to prevent widespread digital piracy, the threat of which is making content providers reluctant to make their intellectual property available, which in turn is slowing the switch to digital broadcasting.

The flag plugs the so-called "digital hole," preventing peer-to-peer and internet sharing of digital content.

But Public Knowledege and other fair use advocates fear the flag will put undue limitations on copying devices including TiVos, digital VCRs, iPods, and cell phones.

“This is a crucial case that will determine how much control the government and Hollywood will have over current and future digital media devices,” Public Knowledge President Gigi Sohn told the court in its brief filed last October.