Cigarettes and Copyrights
I have a title for my next article — so it is just about finished. The genius of courts is that they're not neutral or representative or anything else (or even more logical than other institutions), it's that they are not political — they're not institutionally ambitious — unlike the Mass Media Bureau of the FCC. So only courts can decide what the jurisdiction of an agency is.
We want certain decisions made by courts — like whether the FCC had jurisdiction to issue the broadcast flag rule. No court should defer to FCC's decision about its jurisdiction in this regard, particularly in the absence of any explicit statute, and particularly because FCC has said many times over the years that it has no jurisdiction over copyrights. The fact that FCC changed the title of its rule from “copy protection” to “content protection” at the very last moment speaks volumes. This is really about copyrights.
Just as in the FDA situation, courts need to be strong and hold their institutional own. More later.
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