One form of DRM technology that may be used to protect the content of digital audio transmissions from unauthorized distribution and reproduction is the “audio flag.” The flag has two primary aspects: a physical component and rules and standards that define how devices communicate with flagged content transmitted from digital audio sources. For instance, a satellite digital audio radio stream of a particular broadcast music program could contain an audio flag (the mechanism) that prohibits any reproduction or further dissemination of the broadcast (the standard). The audio flag, according to its proponents, would operate in a similar manner as the video broadcast flag that has been proposed for digital television transmissions.4 Functionally, the audio flag system would work by embedding a special signal within transmitted digital audio data, informing the receiving device of certain copyright restrictions on the use of the content by the listener — for example, limiting the number of copies of a recording that the user may make.
Those advocating the use of an audio flag for digital radio programming include musicians, songwriters, record labels, and other providers of audio content that could bebroadcast to the public through digital transmissions. The Copyright Act bestows several exclusive rights upon the creator of a work (or the individual having a legal interest in the work) that permit the copyright holder to control the use of the protected material. These statutory rights allow a copyright holder to do or to authorize, among other things, reproducing the work, distributing copies or phonorecords of the work, and publicly performing the work.5 Parties holding a copyright interest in content transmitted through digital radio services are interested in ensuring that such content is protected from unauthorized reproduction and distribution by the broadcast recipient; the audio flag, in their view, is an effective way to achieve this objective and enforce their rights.
The Audio Home Recording Act of 1992. The introduction of the Digital Audio Tape (DA T) by Sony and Philips in the mid-1980s prompted passage of the Audio Home Recording Act (AHRA) in 1992.8 A DAT recorder can record CD-quality sound onto a specialized digital cassette tape. Through the Recording Industry Association of America (RIAA), sound recording copyright holders turned to Congress for legislation in response to this technology, fearing that a consumer’s ability to make near-perfect digital copies of music would displace sales of sound recordings in the marketplace.9
The AHRA requires manufacturers of certain types of digital audio recording devices to incorporate into each device copyright protection technology — a form of DRM called the Serial Copying Management System (SCMS), which allows the copying of an original digital work, but prevents “serial copying” (making a copy from a copy). In exchange, the AHRA exempts consumers from copyright infringement liability for private, noncommercial home recordings of music for personal use. Manufacturers of audio equipment, sellers of digital recording devices, and marketers of blank recordable media are also protected from contributory infringement liability upon payment of a statutory royalty fee — royalties that are distributed to the music industry. Opponents of the audio flag contend that the AHRA created a “right” for consumers to make digital recordings, a practice that might be limited or even effectively revoked by audio flag mandates