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This week, the public got a glimpse of the future of television.

On February 22, the District of Columbia Circuit for the U.S. Court of Appeals heard arguments in a lawsuit that seeks to stop the FCC-mandated broadcast flag technology from entering the marketplace on July 1, 2005.

The suit – brought by Public Knowledge, a digital rights advocacy group, the American Library Association, the Association of Research Libraries, the Electronic Frontier Foundation and the Medical Library Association – is part of a battle that is a year and a half in the making.

In November 2003, the FCC, under pressure from content owners such as the television networks and cable channels, declared that all consumer electronics devices sold after July 1, 2005 that could receive television signals would have to be able to read broadcast flags – a piece of code embedded in a digital television stream that would restrict how consumers could move their media

The mandate came after content owners voiced their concerns about the potential piracy that would come when television networks switched to digital streams, which they argued would be much easier to copy and swap across the Internet.

The digital rights consortium is arguing that the FCC is overstepping its bounds, in essence dictating consumer electronic product design without first receiving Congressional approval to do so, which is normally required in an effort this sweeping.

After the long, protracted battle leading up to the court case, the plaintiffs appears to catch a break when two of the three judges spoke out against adding a broadcast flag.  “Are washing machines next,” asks Judge Harry Edwards, according to multiple reports from inside the courtroom.

Edwards’s concern is shared by the plaintiffs and many other technology observers. If the FCC can mandate the use and implementation of this technology by fiat, the concern is thatHollywood or other entities could apply enough pressure to consumer electronics manufactures and begin to dictate product designs to a host of categories such as cell phones, video game consoles, and others.

“We’re very encouraged,” says Wendy Seltzer, an EFF attorney, speaking about the judges reaction in the court.

The broadcast flag issue has made strange bedfellows of the technology industry and the government. Typically, consumer electronics manufactures balk at any government effort to dictate design.

In this instance, the companies are in a bind – or at least they were when the initial plans were drafted in 2003.

Consumer electronics companies need the television content in order to sell the digital televisions and ancillary products and many content owners have threatened to not offer digital streams if the flag is not passed.

As such, the Consumer Electronics Association, a lobbying group for the industry, has come down in favor of the flag, alongside representatives of the content industry such as the Motion Picture Association of America

One source, who requested anonymity because of business relationships with the content owners, says their threats to not offer digital content is spurious now that digital sets have entered the marketplace and some digital programming is already available to the public.

“Are you kidding me,” says the executive. “They have no recourse. The cat’s out of the bag. Analog TVs are going away, regardless of what content owners want. No one’s launching analog TV factories in Mexico these days.”

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