Two bills are now in Congress that would control how future digital radios can be developed and used.

Aoccording to the EFF:

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.