Oh Boy—The Audio Broadcast Flag Licensing Act of 2006
By Wes Phillips March 5, 2006 — No, you aren't reading an old newsdesk article that has inadvertently been published a second (or third) time. On March 2, congressional representative Mike Ferguson (R-NJ) introduced House Resolution 4861, "the audio broadcast licensing act of 2006." Ferguson's co-sponsors were Edolphus Towns (D-NY), Mary Bono (R-CA), Bart Gordon (D-TN), and Marsha Blackburn (R-TN).

Ferguson invoked piracy as the rationale behind his resolution. "With exciting new digital audio devices on the market today and more on the horizon, Congress needs to streamline the deployment of digital services and protect the intellectual property rights of creators." Under current law, the Federal Communications Commission (FCC) cannot mandate a broadcast flag without the specific authorization of Congress, as determined by a decision by the US Court of Appeals' DC Circuit last July. The decision stated: "The broadcast flag regulations exceed the agency's delegated authority under the statute. The FCC has no authority to regulate consumer electronic devices that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission."

Basically, the Recording Industry Association of America (RIAA) has its knickers in a twist over the possibility that citizens might compile "personal music librar[ies]" of their own, and then distribute "recorded songs over the Internet or on removable media." To prevent this, HR 4861 will require manufacturers of digital radios to prohibit "unauthorized copying"—a category that is broader than simple "illegal" copying. The RIAA recently proposed that making back-up copies of CDs, while common, is not "authorized" unless the copyright owner has specifically approved it.

The bill also proposes to "protect" what it deems "customary historic use," another coded reference that can also be interpreted as clamping down on innovations not yet conceived of. As we have noted before, this language would have banned time-shifting and, yes, ripping back-up copies of CDs on computers.

We think HR 4861 is ineffective and repressive. Ineffective because people will copy programming if they want to—whether by hacking any DRM scheme (and they can all be hacked) or by utilizing that unclosable analog hole. A determined copier can always place a microphone in front of a speaker and record anything "in the clear."

We call HR 4861 repressive because it removes fair use rights the consumer already enjoys.

Like prohibition and the war-on-some-drugs, it's an invitation to otherwise law-abiding citizens to choose which laws they will obey. Simply for the sake of argument, we will concede that there might be circumstances in which that makes sense, but in this case, we think it's indefensible.