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On June 21, Motion Picture Association of America (MPAA) chairman and CEO Dan Glickman testified before the Senate Judiciary Committee concerning Hollywood, Inc.'s favorite punching bag: "The Analog Hole: Can Congress Protect Copyright and Promote Innovation?"

The "analog hole" refers to content that has been protected by digital rights management (DRM). When broadcast as a digital signal, the DRM prevents copying; however, when the signal has been converted to analog, DRM is no longer active, which means it can be recorded, transported, or otherwise manipulated. "Plugging" the analog hole means adding some form of restriction that would prevent any copying.

Long-time readers of the Stereophile news page will remember that there have been several attempts to plug the so-called "analog hole," but the efforts have been rebuffed each time. How did this come up again? Because Senator Ted Stevens (R-AK) introduced a 125-page bill, "Communications, Consumer's Choice, and Broadband Deployment Act" (S.2686), that, hidden deep within its boilerplate, calls for the creation of a broadcast flag for over-the-air (OTA) TV transmissions and mandates the FCC to create something similar for digital radio.

Glickman's argument is essentially that entertainment companies invest prodigious amounts in providing entertainment, and that this is only possible when they are granted "a secure environment which protects this high-value content from rampant theft and redistribution."

"Indeed," Glickman asserted, "the honest consumer who does not attempt to violate her agreement with the movie distributor by making copies or redistributing the movie will have no reason to know that the analog hole has been closed."

That seems like a legitimate argument, but is it? It's obvious that record labels and movie studios benefit if they can keep their content locked down—and they should reap the rewards of their labor. Who would suffer if the analog hole was plugged?

Probably not "pirates," if by pirates you mean large-scale commercial interests intent on wholescale distribution of other people's property—criminals, in other words. As was shown this week when a reviewer was caught selling "screener" copies of movies in theatrical release, most real piracy is not coming from consumers—honest or otherwise—but from organizations intent on avoiding the rules the rest of us play by.

What restrictive management schemes do accomplish is to prevent honest consumers from performing simple tasks. That isn't a copyright issue, it's something consumers expect when they buy "high-value content." Can I watch my legitimately purchased HD DVD on my first-generation HDTV in true HD? Why not—I paid for both. Why can't I time-shift my favorite XM program to a timeslot when I'm not busy—don't I pay for the programming? And why can't my legitimately purchased downloads work on any MP3 player, not just the ones the music store I bought them from has a commercial relationship with? Plugging the analog hole will multiply these usability issues more than it will protect content providers from predators.

In each example above, the "high-value content" seems to have a lot less value than it represents itself as having. Restrictive digital rights management may prevent piracy (although not very well, apparently) but it definitely prevents what would appear to be legitimate use as well.

That's why we were gladdened to see that Senator John Sununu (R-NH) has filed an amendment to S.2686 that boots both TV and audio flags. There are rights issues at stake here, but it would be a crime to rush into legislation that disenfranchises the "honest consumer" it pays lip service to. Restrictions don't serve the consumer by creating options—they reduce them.

Sununu gets that. He's the guy who said, "The history of government mandates is that it always restricts innovation....Why would we think that this one special time, we're going to impose a statutory government mandate on technology, and it will actually encourage innovation?"