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May 24 , 2004 | The Recording Industry Association of America has discovered that digital radio broadcasts can be copied and redistributed over the Internet.

The horror.

And so the RIAA, the music business's trade and lobbying group, has asked the Federal Communications Commission to step in and impose an "audio broadcast flag" on certain forms of digital radio.

On April 15, the FCC bowed to the RIAA's request and initiated a notice of inquiry, typically a step leading to formal rule-making. The public may submit comments to the FCC between June 16 and July 16.

If this sounds familiar, it should. The entertainment industries, unable to get Congress to pass related legislation, did an end-run by lobbying mightily to get the Federal Communications Commission to impose a broadcast flag requirement to protect digital television signals from "indiscriminate retransmission" over the Internet. The FCC, which has been quietly transforming into the Federal Computer Commission, did just that last fall. The new rules for digital TV take effect in July 2005.

Taking a page from Hollywood, the recording industry has begun to push for a similar regime for digital radio, proposing an audio broadcast flag for inclusion in the digital radio transmissions of terrestrial AM and FM stations. The parameters of such a flag, or piece of software code, are still unclear. It would likely prevent users from sending copyrighted radio programs over the Internet. But it could also hamstring other legitimate uses by preventing a digital radio program from leaving the device on which it was recorded.

Want to record the digital broadcast of Terry Gross's "Fresh Air" on your PC and listen to it in your car? Or tape a cool new digital radio station you discovered and play it for friends at a party?

Your device may well tell you: I'm sorry, Dave, I'm afraid I can't do that.

Digital radio promises to replace the static and hiss of analog AM and FM signals with crackle-free CD-quality sound. The technology will also allow listeners to summon up song titles, artist names, traffic updates, weather forecasts, sports scores, Spanish language translations, and more on high-definition radio receivers. Digital radio receivers just went on sale in the United States earlier this year, and the nascent industry is just beginning to get off the ground. More than 280 radio stations in 100 U.S. markets have begun digital audio broadcasts or are in the process of converting from analog-only broadcasts.

In its notice of inquiry, the FCC staff wrote:

It appears likely that future digital audio broadcast receivers will include advanced features such as digital recorders capable of storing audio content and that digital audio broadcast transmissions are likely to include specific song identifications in the "metadata" within the digital data stream Using this data, it may be possible to have a recording device automatically search for and record a large amount of the music of an individual artist or group or find and record particular specified song titles to the extent the songs are broadcast locally. RIAA has stated that "digital audio receivers will be able to parse digital broadcasts on a song by song basis, thereby enabling listeners to copy the entire repertoire of individual artists with the push of a button and without even listening to a radio station's broadcast programming." It further states that "these devices could also permit listeners to transfer songs to other devices for serial copying and distribution over the Internet." RIAA expresses concern that the launch of digital audio broadcasting, in an unencrypted manner, will permit consumers to "exploit" recorded music in ways that "ignore the intellectual property interests" of the recording labels and artists and deprive them of legitimate compensation. Although no specific proposal for action has been submitted to the Commission, we are mindful that certain available options may be extremely difficult to implement later after a significant base of equipment has been deployed and consumer expectations have developed. Accordingly, we believe these issues warrant exploration at this time.

If the FCC adopts such a broadcast flag rule for digital radio, it would apply only to what's called "in-band on-channel digital radio content," that is, digital radio stations that broadcast over the airwaves -- as traditional AM and FM stations now do -- and not to satellite radio or Webcasters that stream digital radio over the Internet.

Cheryl Leanza, deputy director of Media Access Project, a public interest law firm in Washington, D.C., says the recording industry is afraid of the Napsterization of digital radio.

"In the analog world, you could tape songs off the radio, give the recording to your friends, and pretty much do anything you want with it," she says. "In the newer world, the technology sets the rules and determines how long you can save a recording, how you can use it, and whether you can share it with a friend.

"The problem is, the technology is so ham-handed that it gives all controls to the content creator and no discretion to listeners, users or subsequent creators. Fair use goes out the window, and we lose the purpose of copyright, which is to spread ideas and promote discourse. If the technology and the new rules eliminate these kinds of legitimate uses, then you will limit a fair amount of the creativity that we would otherwise get as a society."

Media Access Project is working with other organizations, such as Public Knowledge, Common Cause and the Center for Digital Democracy, to submit comments to the FCC during the public comment period.

J.D. Lasica is a veteran journalist who writes frequently about the impact of emerging technologies on our culture. He is currently working on a book about the clash between entertainment companies and technologists.

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