BOB GARFIELD: If copyright holders are worried that their CD-quality material will be pirated off HD radio, what can they do about it? Well, we just heard Phil Redo mention technology now in development to encode music with what's known as a "broadcast flag", digital encryption embedded in HD radios that would allow users to accumulate a library of downloaded songs but would prevent them from digitally transferring those songs to others. A bill endorsed by the Recording Industry Association of America has already been introduced in Congress to make broadcast flag technology mandatory for all HD and satellite radios. But the proposal has its critics. Gigi Sohn is from the Washington public interest group, Public Knowledge. Gigi, welcome to the show.

GIGI SOHN: Hi, Bob. Good to be here.

BOB GARFIELD: If the law says that nobody can redistribute a song, that they can use it for their personal use but can't profit by it, what does the presence of a broadcast flag do to me as a consumer that, apart from cheating, that I can't do otherwise?

GIGI SOHN: Well, the harm is that it impinges on legitimate consumer rights. There's a law called the Audio Home Recording Act which gives consumers the legal right to copy over-the-air radio as long as it's for non-commercial use. Copyright law is a balance between the right of a copyright holder to have exclusive monopoly for a period of time of their creative works, balanced against the consumer's rights to have access to that content to listen to for personal use.

BOB GARFIELD: Your organization previously sued the FCC regarding television broadcast flags. What was the decision there and what precedent was set?

GIGI SOHN: Our court case was premised on the notion that the FCC did not have the right, under the Communications Act, to essentially tell technology manufacturers how to build their devices. And the court agreed with us that the FCC did not have what they call jurisdiction under the Communications Act to make such a regulation. You know, copyright holders are using digital rights management or technological protection measures to protect their content. ITunes uses that to make sure that people don't send the songs hither and yon on peer-to-peer networks. We're perfectly comfortable with those kind of technologies that develop in the marketplace, but it's a wholly different story to have the government tell technology manufacturers, you must build your device this way to obey this copy protection mechanism.

BOB GARFIELD: It's kind of like the old VCR debate all over again. Hollywood thought, back in the day, that video pirates would kill them, but video rental and purchase became a blockbuster [CHUCKLES] new revenue channel. Is there any parallel revenue opportunity for the recording industry in HD broadcast radio or satellite radio or the like?

GIGI SOHN: Well, absolutely. This is a story that keeps repeating itself and repeating itself. The recording industry sued the precursor to the iPod. It was called the Rio MP3 Player. I mean, every time a new disruptive technology has come onto the market, the content industries have sought to preserve their current business model by suing that technology out of existence. And what happens? They'll end up making far more money using that technology, harnessing that technology, than they would have had they killed it. Let me give you an example from the video iPods. Fifteen million TV shows have been downloaded for iPod at $1.99 a piece. Now, these are shows you can get for free on TiVo and keep forever on your television set. Right? "Lost," "Desperate Housewives." So the notion that you can't compete with free has totally been proven false. Now, I know the recording industry can come up with ways and has come up with ways for people to buy, and people do buy. ITunes just sold their one-billionth song.

BOB GARFIELD: All right. Gigi, thank you very much.

GIGI SOHN: My pleasure.

BOB GARFIELD: Gigi Sohn is president of Public Knowledge, a public interest advocacy organization in Washington, DC. [MUSIC UP AND UNDER]

BROOKE GLADSTONE: Coming up, a listener shares her media moment with us and a New York gossip-monger squares off against a billionaire.

BOB GARFIELD: This is On the Media from NPR.