During a court hearing Tuesday, two of three federal appeals judges showed open hostility to a Federal Communications Commission rule that requires digital TVs and VCRs to be equipped to block illegal transmission of television shows and movies over the Internet.
If their acerbic questioning is any indication, the fate of the so-called "broadcast flag" now may depend on whether one of those judges decides that activists suing to eliminate the broadcast flag mandate have standing to bring the law suit.
"You crossed the line," Federal appeals Judge Harry Edwards told FCC lawyer Jacob Lewis during oral argument in the case. Judge David Sentelle appeared to agree that the FCC had no authority to mandate that TV equipment include flag technology.
But Edwards' vote to strike down the FCC is not guaranteed. Edwards also questioned whether the American Library Association and other groups challenging the rule face sufficient harm from the rule to fight in court.
The other member of the panel, Judge Judith Rogers, appeared to believe that opponents of the law did have standing to sue, but that the FCC acted within its authority. Oddly, Edwards could pair with her to grant activists' standing and then team with the other judge, David Sentelle, to strike down the law.
The FCC in 2003 required personal computers and digital storage devices be equipped to recognize a code, or flag, embedded in TV signals indicating to what extent programming may be transmitted over a computer network.
The code could indicate that unrestricted copying is permitted, one-time copying, or none at all.
The technology won't stop TV programs from being copied to a DVD or stored on a personal computer, but it would stop a user from sharing that file with another computer user.
Edwards and one of the other two judges appeared to agree with the critics and told FCC lawyer Jacob Lewis that the law does not give the agency specific authority to dictate how electronic devices must be made.
A ruling by the panel is expected in two or three months.
The caveat in oral arguments is that some judges play devil's advocate to test the strength of various points, so their decisions aren't guaranteed to track with the tenor of the questions.