Did an iPod Scuttle the Flag?

As we reported last week, the Senate Commerce Committee (SCC) held hearings on January 24 exploring regulations to insert "Broadcast Flags" and "Audio Flags" into broadcast signals and audio recordings—markers that would prevent electronic devices from recording the flagged material. What we did not anticipate last week was that the hearings would trigger an outpouring of common sense.

John Sununu (R-NH), an MIT graduate, questioned the necessity of the restriction. He said that advocates of the restriction maintained that its absence would "stifle creativity." He demurred. "We have now an unprecedented wave of creativity and product and content development...new business models, and new methodologies for distributing this content. 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?"

A good question, but the question that really seemed to derail the legislation was dropped by Ted Stevens (R-AK), who had, as committee chairman, made introductory remarks strongly suggesting the need for the restrictions. While discussing the Audio Flag restrictions, Stevens said that he'd been given an iPod by his daughter. He asked if the Audio Flag would allow him to record shows off the radio to listen to on his iPod. As EFF's Deep Links put it so well, "With that simple question, the octogenarian Senator encapsulated arguments about place-shifting, interoperability, and fair use that would have taken whole federal dockets to explain a few years ago."

Sununu followed it with another zinger, asking if he could record a three-song block off the radio and listen to just one of them—which is known as "disaggregation." The answer was "no."

The meeting ended with no decisions having been made, but Stevens was obviously less enthusiastic about the proposal than he had been at the beginning of the session. He observed that bills frequently get stuck in committee if even one member has objections. It seems, thanks to his daughter, Senator Stevens might. And Senator Sununu definitely does. He said, "Maybe the sky really is falling this time, but it is worth suggesting a little bit of skepticism, a little bit of doubt as we entertain this."

We couldn't agree more.