A “Broadcast Flag” for Radio?

by on September 1, 2004

Many in industry are already making a big stink about the potential copying of digital music played on either over-the-air or satellite radio stations. They fear the unrestricted play will result in unrestricted copying, and then massive redistribution of that music via P2P systems. As this AP story notes, there are already devices on the market to faciliate this.

The story also notes that the RIAA has told the FCC that “Digital audio broadcasting without content protection is the perfect storm facing the music industry,” and asked for new regulatory mandates to help them address this concern. Specifically, the RIAA would like the FCC to build on the “broadcast flag” regulatory model they imposed recently at the request of the television and movie industries. Thus, the RIAA wants “an audio protection flag” mandate that would require all consumer electronic devices to read a special string of code embedded in every digital audio transmission that signalled to the device that the music was copyrighted and could not be copied.

As I wrote in a newsletter last fall, I’m concenred about all this mandatory “flag” nonsense:

“Technology mandates are misguided because, well, they are mandatory! Policymakers should not lock industry or consumers into any static technological standard, even when it’s done in the name of protecting intellectual property. IP rights can still be enforced in other ways. For example, programmers could sue individual users who redistribute content on a widespread basis without permission or compensation for the creators. Instead of taking this more targeted approach to prosecuting the handful of users that cause the most serious problems, the broadcast flag proposal opens the door for the FCC to create an intrusive new regulatory apparatus for the Internet and computers in the future. The FCC would be hard-pressed to point to any language in the Communications Act of 1934 or the Telecommunications Act of 1996 that gives them the authority to regulate IP, the Internet, or computers in this manner, but statutory law long ago ceased to be much of constraint on this agency’s actions.

Finally, there are some troubling enforcement issues here worth considering. In the wake of the broadcast flag plan as well as the digital tuner mandate, the phrase “compliant devices” will become more common in this arena. If I build a personal computer that powers my home theater setup and it includes a noncompliant digital tuner or video card, have I broken the law? What if I sold a few of those devices on eBay? If the broadcast flag makes my current DVD players obsolete, can I tinker with them to make sure they’re still usable after July 1, 2005? What about the so-called “analog hole” problem of consumers simply using analog outputs to transfer files to computers, ignoring the broadcast flag altogether? And what happens when the broadcast flag gets hacked a few weeks after it debuts? Will the FCC invoke the Digital Millennium Copyright Act’s “anti-circumvention” provisions to go after certain consumers who take advantage of the hack? What’s the FCC’s enforcement plan if and when each of these scenarios develop?

So many questions. I guess we’ll have to wait for the next few FCC industrial policies to be promulgated to get our answers. One wonders if the Soviets ever spent this much time and attention planning a sector of their economy.”

[By the way, the folks at Public Knowledge have a page devoted to these issues worth checking out here.]

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