Silence Is Golden

Gagging Net radio for fun and profit.


Interstate 81 snakes along the Blue Ridge in Virginia, far from major population centers, yet choked with tractor-trailer traffic grinding against the frequent steep grades. The route cuts through some of the nation's most historic countryside. The Civil War was a relative late comer to the Shenandoah Valley, the bountiful basin shaped by the Revolutionary War, and the French and Indian War before it. Towns like Winchester trace back to a log fort on hill, near a stream, circa 1750. I-81 is a basically overgrown, but vital farm-to-market-and-back track for the entire East Coast.

The region's relative isolation is balanced by a techie overlay, incubated by the large universities in Virginia Tech in Blacksburg and James Madison in Harrisonburg. There are Net-savvy tinkers and entrepreneurs in those rolling hills. In nearby Waynesboro in June 2006 I81.fm—a Net radio station clearinghouse for the region—was born.

And next week, absent an 11th hour compromise on the licensing fees Net radio operators must pay, I81.fm, serving 35,000 listeners a day, will die.

"This will force us into bankruptcy, no question about it," station partner Donnie Mowbray told The Daily News Record of Harrisonburg last week.

The paper also reported that plans by the campus station of James Madison, along with that of Eastern Mennonite University which started Virginia's first public radio station in 1955, to stream broadcasts online have been put on hold indefinitely due to the royalty rate changes.

As tempting as it might to blame this outcome on some technical public policy breakdown—or on a positively loathsome Congress, languishing with a 14 percent approval rating—one cannot.

Net radio went from a medium glowing with promise at the turn of the century to a historical footnote in less than a decade in. Not the stuff of accident. Nor is this predicament exactly new. The broad outline of what would happen were essentially non-profit stations forced to pay performance royalties not based on their revenue, but one their listener base, was clear five years ago.

Yet a ready-made, grassroots, nationwide, broadcasting network has been unable to gain any traction on the issue and stay the execution. How is that? It began with a lie over 15 years ago.

At the first stirrings of CDs and DAT—digital audio tape for those under 40, not in the music biz, or who may have blinked—the content providers heralded a new digital age, one with clear benefits to consumers. No more scratchy LPs or bird-nests of cassettes gone wrong. Crisp, clear digital sound.

But a menace lurked. The digital "perfect copy." Digital audio held the potential to allow perfect, bit-for-bit reproductions of copyrighted material. This meant that slackers, hackers, petty thieves, dreaded pirates, and now perhaps even Mennonites, could duplicate music at will, with no loss in fidelity. Forever.

This future seemed plausible, likely even. Until it became clear that digital audio was not the same as perfect audio. That's obvious now with just one listen of a compressed 128-bit iPod file.

Turns out digital is not perfect. Digital can be crap. And a perfect digital copy of perfect crap is still crap.

But that was not widely understood in October 1992, when President George Bush signed the Audio Home Recording Act, which taxed digital audio equipment and media in order to "pay back" copyright holders for their added risk in this brave new digital era. Next, the World Intellectual Property Organization debates of the mid-90s advanced the idea that the United State had to "normalize" its copyright rules to the rest of world. A world that, interestingly enough, lacked either fair use or a First Amendment. The bit was flipping.

This in turn birthed the Digital Millennium Copyright Act of 1998, the proximate cause of Net radio's demise, albeit routed through an amazingly facile U.S. Copyright office. The Copyright Office has sided with current copyright holders in every meaningful decision on digital audio, dashing hopes that it would serve as a of bulwark against the immense lobbying power the copyright holders hold over Congress.

Make no mistake, the death of Net radio is merely a means to an end—the end being the rollback of any notion of fair use of copyrighted digital content. The goal is nothing less than a licensing regime for all digital music that recognizes no ownership rights, fair or otherwise. In its place will be a digital licensing fee tacked on to every broadband customer's bill, right alongside the other mysterious fees and taxes that serve the political status quo.

It may take another 10 or 12 years for this to happen, but its application is a mere technical extrapolation of current policy. If Net radio operators who make no money from their operations can be charged performance licensing fees, all broadband users can be as well.

And it will be no accident. And no mistake. Especially the silence that greets those who do not pay.

Reason contributor Jeff Taylor writes from Charlotte, North Carolina.

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