But lobbyists working to scuttle the audio-flag provision are nervous that Frist’s push to include it in the telecom overhaul belies a deeper will to get it across the finish line any way he can, including by adding the provision to must-pass measures at the end of the year.
The record labels’ campaign has urgency, since XM and Sirius already have rolled out devices that allow users to store music broadcast over their networks. According to the radio companies, the technology works like a more advanced method of tape-recording songs off a traditional radio broadcast. Users can store songs they’ve recorded and arrange them on a playlist, but they can’t transfer them onto a CD or upload them onto the Internet. For instance, they can record a block of songs — say, an hour of Coldplay — and later sort through which ones to save and which to trash. Once a listener’s subscription to the service ends, the songs are lost.
“Our concern is that consumers have had the right to record music off the radio for decades. This basically would overturn that for no good reason,” said Art Brodsky, communications director for the consumer group Public Knowledge.
Record labels say the new technology is anything but an update of established, legal radio recordings. In recent House testimony, the RIAA’s Bainwol said, “With these devices, you can tape without listening. That’s not old-fashioned listening to the radio. You’ve changed the fundamental nature of radio.”
Israelite said the technology allows users to record dozens of hours of music at a time, then sift through the results to keep desired songs. Since the device is portable, users can then tote their music library as they would with an Apple iPod.
The fight on Capitol Hill is playing out against the backdrop of a court challenge. Record companies backed by the RIAA have filed suit in federal court in New York claiming that XM’s device, called the Inno, violates copyright law.
The court case aside, several Congressional aides said they are skeptical that the record labels’ language will survive in the Senate telecom bill if it reaches the floor. They said free-market Republicans on the committee, such as Sen. John Sununu (R-N.H.), objected to the provision on the grounds it could stifle technological innovation.
Sununu had been set to offer an amendment to strike the provision during markup of the bill. He withdrew the amendment, however, and said he would bring up the issue on the floor.