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An iPod as a legislative force


By Scott Bradner


In late January the Senate Commerce committee held a hearing on proposals to give the FCC the authority to create regulations that would require electronic recording and playback equipment to obey copying and reproduction restrictions indicated by a "broadcast flag" imbedded in audio or video content.  These proposals are in front of Congress because the FCC's previous attempt to impose such a requirement was kicked out by the courts. (Broadcast flag: Protecting the past  Although the recording industry maintains that their proposals will not get in the way of consumers continuing to do what they most consumers, and current law, say are fine, testimony by their representative indicated that this is not quite the case.


The overturned FCC action only dealt with a broadcast flag for video content.  But since that action was overturned the recording industry has seen an opportunity to go much further and have proposed a similar function for audio broadcasts.  Their argument is that such a thing is made necessary by the advent of digital over the air broadcast radio stations and digital satellite radio.  In this proposal the broadcast flag, actually just a pattern of bits buried in the data stream, would tell the recording or playback electronics what limits the broadcaster had placed on recording or playback of the audio material. 


Mitch Bainwol, speaking for the RIAA, said that, under their proposal, a user could record something as they were listening to it so they could play it back at another time.  When questioned, he said that automatic recording (for example time-based) would not be permitted nor would playing back parts of the recording at different times. More than a little change from what people can legally do today.


Some of the Senators expressed quite a bit of skepticism about some of this type of details and other wondered about the whole idea.  One of the doubters was the Senator Stevens (R-Alaska) Committee Chair who personalized the discussion by noting that he had just received an iPod as a gift and wondered at the use limits the RIAA would put on the device playing back material he had recorded over the air. 


Senator Sununo (R-New Hampshire) went even further, he questioned the basic idea of government meddling in this area.  He noted that the proposals purported to encourage innovation then went on to note that "we have now an unprecedented wave of creativity and product and content development." He reminded the committee that "the history of government mandates is that it always, always restricts innovation" and wondered "why we would think that this <ITALone</ITAL> special time, we're going to impose a statutory government mandate on technology, and it will actually encourage innovation?"  (You can listen to a RealVideo clip of the hearing starting with Senator Sununo's comments at 


Senator Stevens noted as he closed the hearing that any one Senator in the committee could put proposed legislation on hold and urged the RIAA and others to work to bring forth a proposal that everyone could agree on, with a strong implication that the current proposal did not meet that criteria.


Senator Stevens's experience with his new iPod clearly sensitized him to the user end of this discussion and that may make a real difference in the outcome, and that is good news for us consumers and maybe not so good news for the RIAA.


disclaimer: Harvard makes, influences and observes history but so far is just watching in this case, so the above is my own view.