Yesterday's Senate Commerce Committee hearing on the Broadcast Flag--and its younger, brattier, brother, the RIAA's proposed "Audio Flag"--swung a little wildly from its pre-ordained course.

It began with committee chairman Senator Stevens and Senator Inouye, his Democrat counterpart, declaring, as with all good anti-piracy measures, that Something Had To Be Done, and that Congress should pass the flag as soon as possible.

The agenda seemed set. In the face of it, those who objected to the Broadcast Flag--technologists, librarians, and civil libertarians--were forced to spend much of their Congressional time requesting narrow exceptions that might lessen its damage.

Then two things happened...

The first was the appearance of Senator John Sununu, the Republican Junior Senator for New Hampshire. Sununu, an MIT grad, interrupted to ask the question so far unconsidered by his colleagues: Do we need this mandate at all?

He pointed out that "we have a whole history of similar technological innovation that has shown us that the market can respond with its own protection to the needs of the artists." And he concluded with one of the most damning depictions of the ahistorical nature of the flag (clip from Congressional RealVideo) you'll hear on the Hill:

"The suggestion is that if we don't do this, it will stifle creativity. Well...we have now an unprecedented wave of creativity and product and content business models, and new methodologies for distributing this content. The history of government mandates is that it always restricts innovation...why would we think that this one special time, we're going to impose a statutory government mandate on technology, and it will actually encourage innovation?"

The second revelation, dropped into the later discussion of the RIAA's audio flag, was that Senator Stevens' daughter bought him an iPod.

This is unhappy news for the RIAA. Once again, their representative was forced to burst into praises of MP3 players (a technology his organization attempted to sue out of existence in 1998).

And when Stevens asked whether with the audio flag in place he would be able to record from the radio and put the shows onto his iPod: that's when the RIAA's Mitch Bainwol really began to sweat.

With that simple question, the octogenarian Senator encapsulated arguments about place-shifting, interoperability, and fair use that would have taken whole federal dockets to explain a few years ago.

Even more damning was Senator Sununu's follow-up question, in which he asked if, post-flag, the Senator might record three songs from the radio today, and listen to only one of them again tomorrow. Of course, under the RIAA's proposed controls, you may not: this is "disaggregation" in their language. This flag, which was sold to Congress to impede piracy, appeared to be designed primarily to control and inconvenience law-abiding, ripping, mixing, modern-day Senators.

The committee ended with Stevens noting that the committee had a lot of work, and while this was a very important issue, bills could get stuck after the objections of just one committee member if there were holes.

As the hearing showed, the holes in these flags are large, and its complex consequences are dawning on both houses.

And God help the broadcast flag-makers if someone buys Senator Stevens a video iPod.

(More details, including a report on a sterling defense of DRM's ability to find terrorists, at Ars Technica.)

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