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Opinion: Say No to a Radio Broadcast ‘Flag’

Gigi B. Sohn says our right to record wanes as the music industry jumps on the content protection bandwagon

Gigi B. Sohn says our right to record wanes as the music industry jumps on the content protection bandwagon

Most people are familiar with the radio. Today’s radios have buttons for selecting stations, switching bands and controlling sound features. And if the big media companies have their way, radio manufacturers will have to add another button to future radios – the “buy button.”

For decades, consumers have been able to record music from their radios. We were recording entertainment content at home even before the advent of the VCR. But that time-honored tradition may be about to change. Just as Big Media is trying to crack down on our rights when digital TV becomes more widespread, they are also launching an assault on the rights of radio listeners. If you hear something you like, forget about your rights – recognized by the U.S. Supreme Court – to tape it off the air. If you want to record it, you will soon have to buy it.

Digital precursor

The push for regulated content protection of digital radio was prefigured by the content companies’ push for protection of digital television. Hollywood and its proxies were successful last year in persuading the FCC to impose content protection, even though consumers have traditionally been free to record content from over-the-air television broadcasts. The new regulations allow TV broadcasters to “flag” their digital TV signals, so that HDTV receivers and cable set-top boxes allow only limited recording.

Hollywood argued that the “broadcast flag” scheme is necessary to protect their copyrighted material, and that without those protections, the media companies wouldn’t put any good content over the air. It was a shakedown of the FCC in order to get mandatory copy protection, and the FCC gave in.

The agency is now engaged in a proceeding to work out the details of how the TV “broadcast flag” will be implemented, with the issues ranging from what technologies can be used to implement the flag, to geographical limitations on how digital material that is available for download can be used.

Hollywood’s success in obtaining copy-protection regulations for digital television encouraged the record companies to seek something even more extreme for digital radio.

Why did the FCC crater on the digital television issue? The main reason is that the commission didn’t want to leave any real or imagined roadblocks that might hinder the digital television transition. What’s important to remember is that the whole “broadcast flag” debate is taking place in the context of a larger public policy discussion. The FCC and Congress have ordered the broadcast industry to vacate the spectrum it now uses for analog transmissions (TV broadcasters also have spectrum they use for digital TV broadcasts). The resulting “recovered” spectrum will be auctioned off or reallocated for other uses.

As the FCC works out the details of its TV flag, the record companies have opened a new front for mandatory copy-protection technologies by suggesting an even stronger content-control regime for radio.

Industry see, industry do

At first it seemed as if the record companies’ pleas were falling on deaf ears. Participants at an informal discussion at the FCC in January made a strong case that there was no need for content controls, and at the time, the FCC staff seemed to agree. It was clear, for example, that protecting digital radio content wouldn’t result in “recovering” any analog spectrum, because radio broadcasters will use the same spectrum for digital radio that they’re currently using for analog broadcasting.

What’s more, it was unclear whether or not copying music from broadcasts would serve as a source of illicit music copies traded on the Internet. At the end of the meeting, Ken Ferree, the head of the Commission’s Media Bureau, said he didn’t see any need for the FCC to act on a radio broadcast flag. Nevertheless, on April 8, the commission issued a Notice of Inquiry to determine whether content controls on digital radio service are needed.

The fact that the FCC merely started an inquiry means it isn’t quite ready to propose rules to implement content controls – and it means there is an extra step to doing so. Still, the commission’s issuance of anything at all is disappointing, as the arguments presented by the recording industry at the January meeting of the FCC had all been thoroughly discredited. As the workshop held by commission staff clearly showed, there are neither pressing technological issues nor spectrum-related issues that require the commission’s immediate action to protect digital radio content.

Our view is there are no good reasons for the commission to move ahead with a “radio broadcast flag” or any form of copy protection for digital radio – the case simply hasn’t been made for such protection. Additionally, no one has outlined what the proposed rules relating to content protection for digital audio radio would be. Unlike the TV proceeding, there is no specific technological proposal to consider.

If, as we say, there is no evidence linking digital radio broadcasting with the sort of threats to the music industry that record companies are claiming will occur if digital audio radio is authorized, why is the music industry in such a fever to impose new content protections? It’s worth noting that the issue hasn’t even come up in the United Kingdom, where digital radio is already being offered.

Quite simply, the answer is that the music industry sees in digital radio an opportunity to do just what Hollywood has succeeded in doing with digital television: using the nervousness about a digital transition as an opportunity to impose controls over content use that have never before existed. And the record companies are seeking even more control over their offerings than the movie and television companies have sought over television, with studios willing to allow a small degree of home recording. But if the music industry has its way, you won’t even be able to record content at home without paying for the privilege.

In an important way the music and movie industries are seeking the same thing. We think the big music companies’ overreaction falls in line with the general efforts by the content industry to use digital technologies as a way of controlling what you see and hear – and extracting more rents from you every time you turn on your TV or radio. Such extreme control has never been part of the broadcasting tradition in the past, and we cannot accept the argument that it must become so in the future.

The digital revolution was supposed to be about liberating consumers and citizens. We can’t let it become an excuse for constraining consumers to spend every last cent.