The DMCA Stranglehold

With the urgent need of music and comedy lovers' action concerning the Internet Radio Equality Bill (HR 2060), right now, it may seem like another mountain to climb to even bring up the need for change in the rules of Internet broadcasting. Before you read further, please visit SaveNetRadio.org to see the current situation, and for help and suggestions when calling your Congressional Representative.

By Dianne Lockhart

MONTE VISTA, CO-Many people do not know that Internet Radio has been in a chokehold, programming-wise, for years. Here's why. The designers of the Digital Millenium Copyright Act put constraints on Internet radio that regular over-the-air AM and FM stations were excused from. Many people now believe that the motivation behind this is from the Recording Industry Association of America (RIAA), representing the big major labels, to keep Independent artists from overtaking the music industry and their control of the industry. Internet broadcasters are slapped with ludicrous arbitrary rules, such as:

• NO PLAYING REQUESTS WITHIN AN HOUR: Your program must not be part of an "interactive service." For your purposes, this means that you cannot perform sound recordings within one hour of a request by a listener or at a time designated by the listener.
• LIMIT THE EXPOSURE AN ARTIST CAN HAVE--NO SPOTLIGHT ARTISTS: In any three-hour period, you should not intentionally program more than three songs (and not more than two songs in a row) from the same recording; you should not intentionally program more than four songs (and not more than three songs in a row) from the same recording artist or anthology/box set.
• PROGRAM CONSTRAINTS: Continuous looped programs may not be less than three hours long.
• MORE PROGRAM CONSTRAINTS: Rebroadcasts of programs may be performed at scheduled times as follows: Programs of less than one-hour: no more than three times in a two-week period; Programs longer than one hour: no more than four times in any two-week period.
• NO ANNOUNCING THE NAME OF A SONG BEFORE IT PLAYS: You should not publish advance program guides or use other means to pre-announce when particular sound recordings will be played.

These rules were initiated under the auspices (false information) that Internet radio poses a risk for illegal recording because of the quality of the sound. They later admitted that the quality of Internet broadcasts were not equal to "master" recordings, but it was too late- they had already passed the law. There are a lot of fed-up broadcasters who are sick and tired of the RIAA's control of the music industry, and, specifically, the career choices of Independent Artists, and Internet radio. We thought we'd share with you, by his permission, the opinion of the effects of the DMCA on Internet Radio, and possible solutions, below, by a fellow broadcaster at Live365.com. Even more ludicrous than the small sampling of the DMCA rules, above, is the system for collecting royalties- the government gave permission to SoundExchange (and no other competing company) to collect royalties on artists' works without their permission, and without their knowledge. Additionally, many of the artists they have collected money on for airplay will never see a dime of it, because they don't air enough to be included in the count or sampling. And what if the artists doesn't know money has been collected for him or her? SoundExchange, with the government's blessing, gets to keep it for themselves, after a certain amount of time. In the meanwhile, they are trying to raise royalty rates (through the Copyright Royalty Board, CRB) so high that Internet broadcasters will go bankrupt or just cease to exist (thereby choking off a major source of airplay for independent artists who can't get airplay on AM and FM stations.) The RIAA/Major labels benefit, by destroying the competition.

From an Internet broadcaster (username dismuke):

I actually have a problem with the very notion of a compulsory license - though I agree completely with what you describe as its benefits and that HR 2060 and NOT the DMCA should be our object of focus right now.

My problem with the compulsory license is that it is a rather pathetic and grotesquely unfair way of protecting intellectual property rights. The fact of the matter is that not all owners of intellectual property have similar interests in the marketplace. Indeed, as we have seen, the marketplace interests of the vast majority of intellectual property owners - i.e. the independents - are very much at odds with interests of the RIAA labels. In a free marketplace, everyone is able to battle it out and everything is ultimately decided by what the customers have to say. Under a compulsory license, everything is pretty much determined in advance by a governmental body and the one who wins is usually the one with the largest amount of political pull.

This is exactly what we have seen with the CRB which has set rates at a level that favors the interests of the lowest common denominator recordings of the RIAA labels by basically making it too expensive for broadcasters to stream less famous artists and niche genres and thus depriving them of the valuable Internet radio exposure they have come to depend on. In other words, the CRB basically has set itself up as the agency that exists to protect the interests of the RIAA by keeping emerging competitors from gaining access to the marketplace.

One of the cardinal rights of ownership is the ability to charge whatever price one wishes and is able to voluntarily get. If you make pencils and want to sell them for $100 each and someone is dumb enough to buy them - go for it. Likewise, if a copyright owner wishes to charge $100 per song per listener or to not license his recordings at all - well, that is a major part of ownership and he should have every right to do so. And likewise, we have every right to treat them the same way we would someone who offered to sell us a ten cent pencil for $100.

In reality, however, people do not charge $100 for ordinary pencils. And, unless there happens to be a temporary shortage of certain raw materials, nobody goes around complaining that pencil prices are outrageous and pencil manufacturers are not at each others throats over what price pencils should sell for. The marketplace takes care of that. It ought to do the same thing with regard to what price, if any, broadcasters pay for royalties.

Here is basically what I propose in place of compulsory licensing:

When a sound recording is copyrighted, the automatic default will be that NO license is required for public performance. Copyright holders who are eager for exposure and publicity might consider this to be their very best option - and it certainly will give broadcasters a HUGE incentive to play their material.

Copyright owners who do not wish to allow free public performance of their material have the option of specifying which Performance Rights Organization (PRO) they wish to license their material through - or they have the option of requiring that any license must be granted by the copyright holder exclusively.

Note that I say "which PRO." The notion that SoundExchange should be a monopoly is absurd. If the RIAA wishes to license all of its material through SoundExchange for outrageous rates - then it should be able to do so. But it does NOT have the right to demand that all other copyright holders be forced to either do the same or else give the material away for free. Copyright holders who wish to charge rates that are more reasonable have every right in the world to form their own PRO for such a purpose.

What I also propose is that every sound recording sold carry a notice of the licensing requirements. For example: "Public performance license granted" "Public performance license through SoundExchange" or Public performance through SoundExchange Competitor X or "Must contact copyright holder for public performance license." The Library of Congress would also maintain a database of all recordings under Federal copyright where broadcasters could quickly and easily check the status and licensing requirements of any recording.

Under my proposed system, if the RIAA wished to charge outrageous rates for its material, it would be very easy for broadcasters to identify such recordings and refuse to buy them or include them in their playlists. And it would be very easy for broadcasters to identify those copyright owners who DO want airplay and are willing to either give it away for free or else charge reasonable rates.

Such a system would protect the rights and interests of ALL copyright holders. It also would enable the RIAA to get what it claims to want - the high prices it claims its recordings are worth.

But the fact of the matter is, if such a proposal was put forth, the RIAA would fight it tooth and nail. A free marketplace is the LAST thing they want - because they know they cannot survive in one.

SoundExchange and the RIAA is lying through its teeth when it says that Internet radio airplay does not have value. Who gets airplay and who doesn't is the only thing this royalty battle is about. The RIAA wants to make sure that only the mass market products of the Big Four get Internet airplay - which is why it has tried to use the SoundExchange monopoly to price everyone else out.

If a free market were to come about and the RIAA charged the sort of rates that they have pushed through the CRB - well, Internet stations would have little choice but to pull RIAA recordings and play only those which are more affordable or, at the very least, severely restrict the number of RIAA recordings which are played. What that would do, of course, is give greater airplay and more exposure to those recordings that are not so overpriced. This, of course, would only hasten the RIAA's demise as the extra exposure would enable audiences to discover artists that they most likely would not have otherwise and the RIAA's market share will decline even faster. Their only hope of being competitive in the market for Internet radio airplay would be to lower their prices to rates that make it attractive for stations to play them. The only reason they could get away with charging high prices would be if a recording is a huge hit - but if they don't get airplay on Internet radio, which will very soon replace FM as the medium where musical trends are set, they will not have any huge hits that anyone would be willing to pay high prices for. They will have priced themselves and not their competitors out of the market.

If the RIAA wants to price recordings out of the market for airplay, it should be free to do so - but only with its OWN recordings and not everybody else's. If the RIAA does not wish to participate in Internet radio - well it shouldn't have to. It can stand on the sidelines and become even more obsolete as Internet radio becomes more and more important in people's daily lives and in our culture. But it does NOT have a right to determine the conditions and terms that its emerging competitors must operate under in order for them to participate in the many wonderful things that Internet radio has to offer. Quite frankly, we need a system where the RIAA has to play by the same rules that everybody else does and where it has absolutely no more status or privilege in the eyes of the law and the government than does any other copyright owner.

The notion of a "willing buyer and a willing seller" being determined by a GOVERNMENT PANEL is absurd. Despite the pseudo-free market verbiage, such is NOT a free market approach. A system where the GOVERNMENT determines what prices ought and ought not to be is the premise of communism/socialism and not a free market. I am actually all for prices being set by "willing buyers and willing sellers" - provided that all parties are actually willing. Perhaps certain broadcasters would be willing to pay .0019 cents to stream some recordings - but no broadcaster in his right mind would be willing to play such a price for all recordings as the vast majority simply are not worth that much in terms of attracting audiences. And perhaps the RIAA labels are willing to sell performance rights to their mega hit recordings for .0019 - but no independent artists or niche genre artist in his right mind would be willing to charge that much for airplay for the exact same reason that pencil makers do not charge $100 for an ordinary pencil. If we are going to have a "willing buyer/willing seller" strandard then it actually needs to be decided by willing buyers and willing sellers - i.e. by a free market and NOT by the RIAA on grounds that it has political pull. And webcasters and independent copyright owners should not have to be forced to spend the time, money and energy to go out and acquire their own political pull in order defend themselves from the RIAA political schemes.

The problem with the compulsory license is that it is a "one size fits all" proposition for both copyright holders and broadcasters. As a consequence, the results will never be to everyone's satisfaction: either one side or the other or both will always feel that they are being screwed. In a free market, each player makes his own decision as to what he wants to charge and to pay - and if it does not work out, then only he is to blame. Under a free market, the only party that loses is the RIAA because it is no longer able to use its political pull in order to keep a flood of emerging competitors in check. It will be forced to compete in a marketplace where it has no special advantage over anybody else and is no longer needed or even particularly wanted anymore by either artists, customers or broadcasters. Establish a genuinely free market and the RIAA is toast because, quite frankly, it no longer has anything to offer that other players in the marketplace cannot do better and much more efficiently.