Congress returns for Part II of its lame duck session on Monday, and as Alex indicated, we will have our eyes and ears open for efforts to pass the broadcast flags or video franchising without net neutrality. A few weeks ago I suggested two possible, albeit unlikely appropriations vehicles for the audio flag, which is being pushed with desperation by RIAA chief Mitch Bainwol, whose former boss, Senate Majority Leader Bill Frist (R-TN) is about to leave the Senate.
Now, a third possible vehicle has come to our attention, and it is one that we and our broadcast, satellite radio and consumer electronics industry colleagues will now be keeping our eye on. According to various reports, there is a push to pass a “tax extenders” package of expired (or soon to be expired) tax cuts and credits, including the federal research and development tax credit that expired last year. We don't have any specific information as of yet as to whether the RIAA will indeed try to include the audio flag in this package, but unlike the appropriations bills, which are very nearly complete, this bill will start out anew, which means that anything can happen.
It was seven years ago that the RIAA infamously got four words placed in the Satellite Home Viewer Improvement Act that changed the definition of a “work for hire” such that musicians would no longer be able to obtain their master recordings from a record company after 35 years. Done in the dead of night, it caused such an uproar among artists that it was repealed the following year. But regardless of the ultimate outcome, it demonstrates that the RIAA is ready, willing and able to engage in similar conduct with regard to the audio flag.