IBOC CONTENT PROTECTIONS CAN'T WAIT, RIAA TELLS FCC

For the first time, the RIAA proposed an elaborate series of remedies that would encrypt the IBOC signal and impose a so-called “audio protection flag” (APF). Contrary to those who argued such protections shouldn’t be enacted now for fear of slowing the transition to DAB, the RIAA urged the FCC to make them effective with the issuance of final IBOC rules and said the Commission is on solid jurisdictional ground to do so. Under either “trigger” method -- the APF or encryption -- the protection would be defined by “a specific set of usage rules” in an IBOC receiver under license from technology developer iBiquity Digital, RIAA said.

The usage rules would preserve consumers’ recording rights as they currently know them, RIAA said. They would permit users to record DAB content manually and blocks of time on a preprogrammed basis, it said. However, the rules would prevent the recording of the music’s “metadata” for programmed recording of songs and would prevent the Internet distribution of recorded songs, RIAA said. Although IBOC is a proprietary system licensed by iBiquity, and RIAA doesn’t know “its precise specifications,” it said iBiquity senior officials have gone on record as saying content protection could be accommodated easily in the system. Based on such assurances, RIAA said, FCC adoption of the proposal shouldn’t impede DAB’s deployment. Delaying such action will only “exacerbate the harm to the music industry” and diminish the available options later, it said.

The FCC has jurisdiction to impose IBOC content protections under Titles I and III of the Communications Act, RIAA said. It said those provisions give the Commission “expansive authority to prescribe the manner in which broadcast stations operate.” The Commission also has “ancillary jurisdiction” under Title I to adopt content protection rules and require that equipment manufacturers include in receivers “mechanisms to give effect to those rules,” RIAA said. That jurisdiction was the basis on which the FCC acted in the broadcast flag and plug-&-play proceedings, RIAA said.

The first round of comments this week in the FCC’s notice of inquiry on whether to establish IBOC content protections (CD June 17 p7) brought to the surface a debate reminiscent of the polarizing DAT fights of the early 1990s. CE makers and consumer groups contended if the FCC were to grant the recording industry’s bid for IBOC content protections, it would tip the balance unnecessarily away from consumers on fair use. Moreover, they said, the evidence is flimsy that DAB, if left unchecked, would create the potential harm the record labels feared.

The Recording Artists’ Coalition (RAC), representing such major stars as Bruce Springsteen and Billy Joel, said the FCC historically has adopted content protection rules reflecting congressional policy decisions in the copyright law. “While the Commission cannot amend the Copyright Law, it has the power to invoke primary and/or ancillary jurisdiction to ensure that the new DAB standard incorporates content protection rules designed to provide recording artists with real incentive to create,” the RAC said. To do nothing will doom the artist to “suffer the same disincentive in the digital radio age that they suffered in the analog radio age,” the RAC said. If left unchecked, the RAC said, “the potential for sophisticated interactivity makes DAB fundamentally a new format that will eventually allow users to access specific songs or songs by specific recording artists on a real-time or delayed basis, and then store that music on a myriad of different machines like a computer or a handheld device. The user will then be able to create an unlimited number of copies or further distribute the music via the Internet or a wireless system with relative simplicity.” DAB could be far more onerous than the existing unauthorized distribution of music over P2P file-sharing networks, the RAC argued; unlike unauthorized P2P distribution, which offers the “same type of interactivity and possibility for abuse” as DAB, IBOC “also offers anonymity and simplicity.” RAC said the combination “will be toxic for the future of music.”

The National Academy of Recording Arts & Sciences (NARAS) agreed, saying DAB had the potential “to allow recording artists to reach a wider audience,” but without content controls, the technology also “may have the ability to facilitate large-scale illegal copying which will further damage an industry already suffering from other forms of intellectual property theft.” It said future devices likely will be able to record digital files of select artists or genres automatically, “thereby reducing sales and potential royalties to the artists who created the works.”

The Home Recording Rights Coalition (HRRC) disagreed. It told the FCC that “except for speculation and extrapolation, there is nothing yet to indicate that manufacturers will make the sorts of devices that the RIAA fears, that consumers will buy them in large numbers or that if so they will be used only to negative effect.” If the recording industry believed there was “something organic” about any DAB piracy threat, “it was obliged to become active in this docket at its inception in 1999,” the HRRC said.

At least some of the IBOC products described by the recording industry as potential threats would fall under the scope of the 1992 Audio Home Recording Act (AHRA), the HRRC said. “Law and equity would require that the AHRA be recast in light of new impositions sought by the RIAA” before the FCC could act on the recording industry’s requests, the HRRC said: “This obviously is a job beyond the ken of the FCC.” Under the AHRA, it said, the FCC was given or delegated no authority to “change or construe” the law’s “statutory regime” as implemented by Congress, although the Commerce Dept. was, it said: “For the FCC to assert such power, nevertheless, would be a usurpation of congressional power and prerogative.”

A coalition of consumer groups said there’s “no evidence that radio broadcasts are a significant source of infringement… nor is there evidence that DAB poses any threat to the music industry distribution model.” Moreover, the coalition, which includes the Consumer Federation of America, Consumers Union and Public Knowledge, agreed that nothing in the Communications Act “gives the FCC explicit [authority] to implement copy controls.”

NPR said it would be premature for the FCC to consider “specific receiver-based mechanisms” to prevent the copying and distribution of copyrighted music. The burden of proof rests with the recording industry to demonstrate there’s a “concrete harm associated with DAB, and given the nascent state of the technology, we do not believe such a showing can be made at this time,” NPR said. NPR said there’s an existing “statutory mechanism” in place to compensate content owners for the use of digital recording devices. “At present, there is no reason to believe that this mechanism will be inadequate,” or that copyright infringement “will threaten the demise of free over-the-air broadcasting and trigger the Commission’s statutory authority over the matter,” NPR said.

The NAB also said the recording industry “has failed to demonstrate either a right to protection or to provide the protection it asserts as necessary.” As with the broadcast flag proceeding for DTV, it said, “achieving a broad industry consensus on the technical parameters of such a protection scheme would not be such a simple matter.” In light of that complexity, NAB asked that the content protection issue “not be permitted to slow down the permanent authorization and progress of digital radio.” Moreover, if the FCC were to insist on imposing a solution to suit the recording industry’s fears, it “should apply only to later-produced IBOC receivers on a schedule that would not disrupt the rollout of IBOC receivers,” the NAB said. To minimize such a disruption, it urged the Commission “to proceed on this topic on a track separate from its consideration of the permanent authorization of the digital radio service.”

IBOC developer iBiquity Digital told the FCC it believes that any Commission action to implement a digital audio content control regime for IBOC would be “premature and has a great potential to stifle consumer acceptance” of the technology. It said it agreed with the Commission that these issues are not appropriate subjects for a rulemaking at this stage of the DAB conversion process.

Meanwhile, BMI, though sympathetic to the recording industry’s call for IBOC content protections, told the FCC that “such regime should not derogate from the existing rights of copyright owners of musical works.” BMI said it believes the transition from analog to digital radio “should contain appropriate protections” for labels and artists. But any such protections adopted “must include provisions allowing performing rights organizations, such as BMI, the ability to continue monitoring digital audio transmissions through existing and future tracking techniques,” it told the Commission.