This story appeared on Network World at

http://www.networkworld.com/columnists/2006/021306bradner.html

'Net Insider

An iPod as a legislative force

By Scott Bradner, Network World, 02/13/06

The Senate's Commerce committee last month heard proposals that would enable the FCC to require recording and playback equipment to obey copying and reproduction restrictions indicated by a "broadcast flag" imbedded in audio or video content.

These proposals were before Congress because the courts kicked out the FCC's previous attempt to impose such a requirement (see Broadcast flag: Protecting the past).

Although the recording industry maintains that its proposals will not get in the way of consumers continuing to do what they and current law say is fine, testimony by the industry's representative indicated that this is not quite the case. The overturned FCC action dealt only 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 has proposed a similar function for audio broadcasts. The industry's 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 (a pattern of bits buried in the data stream) would tell the electronic device what limits the broadcaster has placed on the recording or playback of the audio material. Mitch Bainwol, speaking for the Recording Industry Association of America (RIAA), said that, under its proposal, a user could record something while listening to it in order to play it back at another time. When questioned, he said that automatic (for example, time-based) recording would not be permitted, nor would playing back parts of the recording at different times. That's more than a little change from what people can legally do today.

Some of the senators expressed skepticism about parts of this, and others wondered about the whole idea. One of the doubters was Sen. Ted Stevens (R-Alaska), the committee chair, who personalized the discussion by noting that he had just received an iPod as a gift and wondered at limits the RIAA would put on the device playing back material he had recorded over the air.

Sen. John Sununu (R-N.H.) went further, questioning 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 one special time, we're going to impose a statutory government mandate on technology, and it will actually encourage innovation?" (Listen to a RealVideo clip of the hearing, starting with Sununu's comments)

Stevens noted as he closed the hearing that any one senator in the committee could put proposed legislation on hold. He 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 criterion.

Stevens' 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. That is good news for 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.