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The Clicker: Senators, iPods, and the possibility that the Audio Flag might not be all bad.

Ryan Block, @ryan

Every Thursday Stephen Speicher contributes The Clicker, a weekly opinion column on entertainment and technology:

In many ways it's a touching story: boondocks Senator from Alaska sees modern technology for the first time and, as a result, becomes a voice for the people. Throw in an adorable little granddaughter and we've got the makings of a Hollywood movie. However, before we begin the casting process (I see Philip Baker Hall as the Senator and Dakota Fanning for the granddaughter), we might want to look at this a little further.

On January 24th our nation's leaders returned to Washington D.C. and resumed the all-important business of keeping our streets, financial-well-being, soldiers digital content safe from, well… us. Disheartened by the Supreme Court throwing the big red challenge flag over the now-dead Broadcast Flag, lawmakers, the FCC (Federal Communications Commission), and the MPAA (Motion Picture Association of America) regrouped and this time they brought the Don, the RIAA (The Recording Industry Association of America). After all, throwing a DRM party without the RIAA is a little like an after-prom party without the homecoming queen. Also new this time around was the concept of the Audio Flag. Audio Flag? Yes, in addition to their renewed efforts to codify into law the [video] Broadcast Flag, the DRM party has also set their sights on digital radio. You see – just like digital television broadcasts are bit-perfect and ripe for piracy, so too are their audio counterparts.

It's here that the story takes an unusual turn. Ordinarily, these proceedings have a certain feel to them. A cynic might argue that this feel is the result of a cadre of old men whose pockets are well-lined with lobby-money talking endlessly while all-the-while being careful to say nothing. Not this time. This time the Honorable Ted Stevens' pocket was lined with an iPod, a gift from his granddaughter. Immune to the evils of DRM and protected by the seemingly-ubiquitous white ear buds, Stevens momentarily forget his surroundings and began asked probing questions. Stevens asked if this Audio Flag would prevent him from easily importing digital shows onto his iPod. The answer, yes, was a blow to the DRM movement.

While definitely true that an Audio Flag would restrict movement and add friction to the process, the question still remains: is the Audio Flag as bad as it seems?

Certainly we can all agree that the [video] Broadcast Flag was ill-conceived and a restriction likely to infringe on “Fair Use.” However, are all flags really created equal? Just for a moment look at the differences behind the two businesses. Unlike television, radio was never intended to be the sole method of product distribution. Music via the radio was, for all intents and purposes, advertising. The theory was that you would hear the song, and you would like the song. You would then desire to listen to it on your terms. To do so you would buy the song. Radio stations paid a nominal fee (in the form of ASCAP fees) to play the song. This fee would offset the casual listeners who enjoy the song (but not enough to purchase).

Fast forward to the world of digital radio and recordings nearly as good as the originals (or at least the low bit-rate renditions that 99% of the world are perfectly willing to fill their iPods with). Suddenly what used to be a stop-gap measure of the pre-teen crowd, taping the radio and forgoing the purchase, is now a feasible alternative for the masses. To make matters worse (or better, depending on to whom you are speaking) – digital radio sends all the important song information. This makes for easy archiving.

“Fair Use! Fair Use” cry the masses, but what does “Fair Use” really mean with respect to the radio? Surely it can't mean unlimited time-shifting, can it? Without the use of something like an Audio Flag, where do the lines get drawn? Time-shifting within the context of a stream is one thing, but it's an altogether different concept when applied to library-building. Combine a digital radio receiver and a computer and Voila – you've got the ability to slowly build a library of your ‘time-shifted' content. Why ever buy another song if the radio entitles you to “time-shifting?”

That's not to say that such a flag shouldn't be used sparingly. Original programming, news, talk-shows, etc. – these are all examples of content where flags could be detrimental to Fair Use. However, instead of dismissing Audio Flags out of hand let's investigate what exactly “ownership” means.

The CEA's (Consumer Electronics Association) President and CEO Gary Shapiro recently put out a press-release on the issue. In it he expressed concerns that such a flag would undermine innovation and rollback consumer rights. Maybe, just maybe, we should give a slight pause and wonder about the artists' rights in a world where the mere act of hearing a song on the radio entitles you to perpetual use of that song on your terms.

If you have comments or suggestions for future columns, drop me a line at

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