nov05c.indd


Ber nadette Murphy W a s h i n g t o n  H o t l i n e  

Broadcast fl ag fight continues, peer­
to­peer under fi re 
ALA v. FCC is a case in the U.S. Court of 
Appeals for the D.C. Circuit in which librar­
ies and other public interest and consumer 
groups have successfully challenged the 
Federal Communications Commission (FCC). 
On May 9, 2005, the court ruled in our favor, 
striking down the FCC’s “broadcast fl ag” rule 
governing digital television content. 

Last year the FCC issued broadcast fl ag 
copyright protection rules that were to go into 
effect in July 2005. The order required that all 
digital electronic devices, such as television 
sets and personal computers, include code 
(known as the “broadcast flag”) that accom­
panies DTV signals to prevent redistribution 
of the digital content over the Internet. The 
FCC ruling marked another step toward giv­
ing content providers extensive control over 
what users can do with electronic content. 

The appeals court heard oral arguments 
in the case in February. On March 15, the 
court issued an order directing the library 
organizations to fi le affidavits by March 29 
to answer questions about the standing of 
the organizations to bring the suit. The court 
noted that though the FCC had not challenged 
the standing of our groups, the Motion Picture 
Association of America had done so, and the 
court needed additional information in order 
to resolve the issue. 

On March 29, ALA fi led affidavits from a 
number of individuals, including librarians 
at Vanderbilt University, North Carolina State 
University, University of California­Los Angeles, 
and American University, and an ALA member 
who teaches at the American University. In each 
instance they explained and illustrated how the 
broadcast flag would hamper their use of broad­
cast materials for teaching and scholarship. 

On May 6, 2005, the Court of Appeals is­
sued a unanimous decision striking down the 

Bernadette Murphy is communications specialist at ALA’s 
Washington Offi  ce, e-mail: bmurphy@alawash.org 

FCC’s rule. The court relied in large part on 
a declaration filed by Peggy Hoon, scholarly 
communication librarian at North Carolina 
State University (NCSU), who explained the 
adverse impact that the broadcast fl ag would 
have on distance education activities at NCSU. 
Almost immediately after the court’s decision 
was issued, the entertainment industry began 
promoting the introduction of legislation to 
overturn the court’s decision. ALA continues 
to work with congressional staff to educate 
them on the issues. 

MGM Studios, Inc. v. Grokster, Ltd. 
On June 27, 2005, the U.S. Supreme Court 
held in Metro-Goldwyn-Mayer Studios v. 
Grokster, Ltd. that the distributors of peer­
to­peer (P2P) file­sharing software could be 
liable for copyright infringements committed 
with their software. The court, in a unani­
mous ruling, declared that distributors of P2P 
systems may be held liable if they actively 
induce copyright infringement by users of 
those P2P systems. 

Importantly, the court strongly reaffi rmed 
its earlier ruling in Sony Corp of America 
v. Universal City Studios, which held that 
technologies could not be outlawed if they 
were capable of substantial noninfringing 
uses. The Supreme Court acknowledged 
the positive uses of P2P technology, stating 
that “[g]iven these benefits in security, cost, 
and efficiency, peer­to­peer networks are 
employed to store and distribute electronic 
files by universities, government agencies, 
corporation, and libraries….” The library 
associations, through their coalition, Library 
Copyright Alliance, welcomed this balanced 
decision that supports the interests of librar­
ies, while addressing issues of widespread 
copyright infringement. By focusing on con­
duct that induces infringement, rather than on 
the distribution of technology, the decision 
ensures the continued availability of new and 
evolving digital technologies to libraries and 
their patrons. 

C&RL News November 2005  738 

mailto:bmurphy@alawash.org