The broadcast flag argument is coming up on February 22.  It's a crucial case.  Did the FCC have jurisdiction to enter the broadcast flag order in November 2003?  If it didn't, we'll need to go to Congress to discuss all this.

Like the Grokster case, the flag situation raises this question:  can one industry force another to constrain new general purpose technologies in the name of copyright protection?  Like the CALEA dispute (prompted by the demands of another great industry -- law enforcement), the flag represents an attempt to have high-tech innovators ask permission before innovating. 

The broadcast flag isn't really about broadcast or the waving of a patriotic flag.  It's about money and fear.  I have high hopes that the DC Circuit will see through the FCC's incredibly broad assertions about its jurisdiction. 

We're in for a long, tough battle in front of Congress -- everything may be up for grabs, including the immunity of online intermediaries enshrined in Section 230 of the 1996 telecom act.  Congress should act with self restraint.  But the first step is to get them involved, and the flag case will (should) be a step in the right direction.

Here's my paper about all this. It explores the application of complex systems theory to internet governance.