Today, Rep. Mike Ferguson (R-N.J.) introduced the "Audio Broadcast Flag Licensing Act of 2006," H.R. 4861, a House companion bill to the Senate's broadcast flag bill.

This bill would require that all future digital radios (both terrestrial, like HD Radio, and satellite, like XM and Sirius) "include prohibitions on unauthorized copying and redistribution of transmitted content." The FCC would be tasked with working out the details.

This is the culmination of months of lobbying by the RIAA to lock down the "record" button on your next radio. Despite the fact that, under existing copyright law, building and using digital radio recorders is clearly legal, thanks to the Audio Home Recording Act (a point we explained in detail before the FCC in 2004).

H.R. 4861 is chilling in at least three ways:

• If this becomes law, you would need a license from the FCC to build a radio receiver and be forced to incorporate DRM if your receiver has a record button. In other words, satisfying the Code of Federal Regulations would come before satisfying your customers.
• Notice that "unauthorized" copying and redistribution will be prohibited, rather than unlawful copying and redistribution. Translation: unless you get permission, it's forbidden, even if it would be a fair use or perfectly legal under the AHRA.
• The bill says that the restrictions "shall not be inconsistent with the customary use of broadcast content by consumers to the
  extent such use is consistent with the purposes of this act and other applicable law." As we've discussed before, this freezes fair use based on yesterday's "customary uses," rather than leaving room for tomorrow's innovators. Remember, time shifting with your VCR was not "customary" in 1976, nor was platform-shifting CDs to your iPod in 1997.

For a picture of what the RIAA considers permissible, take a look at the comments they filed with the FCC on this topic back in 2004. Here's the list of restrictions they asked for then:

• Receivers may only record or permit recording of covered content: (a) in direct and immediate response to a consumer pressing a record button; (b) based on a date and time preprogrammed by the consumer.
• Preprogrammed recordings shall be for a minimum period of 30 minutes in duration.
• A replay buffer may be used to initiate a recording of a previously broadcast transmission provided that the buffer does not exceed 30 minutes in duration.
• Each recording of covered content shall be stored and retrieved as a singe continuous session and may not be divided into recordings of individual songs on an automated or non-automated basis using ID information or audio characteristics.
• The application of these usage rules to covered content shall be stored and associated in a robust manner with any recordings of such covered content.
• ID information shall be recorded only in a manner that effectively limits its use to display during simultaneous audio playback.
• No recording device shall record covered content based on ID information.
• All recordings of covered content must employ robust encryption methods to bind and limit playback to the recording device.
• Playback of covered content shall be solely on a session basis and shall not be linked in any way to ID information.
• Playback of covered content shall be at normal speed (defined as within 10% of the speed at which the content was originally recorded). Playback may skip forward and backward at higher speeds within the recorded session without playing any sound provided that no skipping, either forward or backward, shall be permitted to the beginning or end of a song using ID information.

"RIAA believes that these rules appropriately balance the interests of users in recording material off-the-air while protecting the interests of the music industry...."

Neither I nor the Copyright Act agrees.