Small Webcasters sue giant record labels
In the Silicon Valley Business Journal.
(Thanks, Paul.)
The suit, filed by San Jose attorney Perry Narancic on behalf of the nonprofit alliance, also names RIAA members Universal Music Group Inc., Warner Music Group Inc., Bertelsmann Music Group Inc., Sony Music Entertainment Inc. and Capitol-EMI Music Inc., which together sell eight out of 10 recordings in the United States.Webcaster Alliance's allegations stem from a 2002 agreement between RIAA and Santa Clara-based Internet portal Yahoo over royalty payments for music transmitted over the Internet. The alliance says the agreement could harm distribution of independent music that competes with RIAA material.
"The RIAA agenda is patently clear," says Ann Gabriel, president of Webcaster Alliance. "We have watched the RIAA's actions which have the effect of wiping out an entire industry of independent Webcasters who represent freedom of choice and diversity for Internet radio listeners. It is time for the RIAA to be held accountable for years of manipulating an entire industry in order to stifle the growth of independent music and control Internet content and distribution channels."
Here is the full text of the article in case the link goes bad:
http://www.bizjournals.com/sanjose/stories/2003/08/25/daily52.html
Small Webcasters sue giant record labels
Webcaster Alliance Inc., which says it represents a number of very small Webcasters, has filed an antitrust lawsuit against the Recording Industry Association of America Inc., saying the trade group's actions could drive small Internet audio streams out of business.
The suit, filed by San Jose attorney Perry Narancic on behalf of the nonprofit alliance, also names RIAA members Universal Music Group Inc., Warner Music Group Inc., Bertelsmann Music Group Inc., Sony Music Entertainment Inc. and Capitol-EMI Music Inc., which together sell eight out of 10 recordings in the United States.
Webcaster Alliance's allegations stem from a 2002 agreement between RIAA and Santa Clara-based Internet portal Yahoo over royalty payments for music transmitted over the Internet. The alliance says the agreement could harm distribution of independent music that competes with RIAA material.
"The RIAA agenda is patently clear," says Ann Gabriel, president of Webcaster Alliance. "We have watched the RIAA's actions which have the effect of wiping out an entire industry of independent Webcasters who represent freedom of choice and diversity for Internet radio listeners. It is time for the RIAA to be held accountable for years of manipulating an entire industry in order to stifle the growth of independent music and control Internet content and distribution channels."
The RIAA says the federal suit is groundless.
A group of non-commercial webcasters including American Council on
Education (ACE), Collegiate Broadcasters, Inc. (CBI), Intercolegiate
Broadcasting System (IBS), Harvard Radio Broadcasting (WHRB) and National
Religious Broadcasters Music License Committee (NRBMLC) reached an
agreement over the weekend with the RIAA/SoundExchange on rates and terms
for webcasting.
IBS Announcement
A low fixed price agreement has been reached that also provides for no reporting/recordkeeping for participating IBS Member radio stations/webcasters. The period covered by the agreement is October 1998 through December 31, 2004...
Here's a PDF of the agreement.
Here are the rate specs from the "rates and terms" that were published today:
(1) $200 for the period beginning on October 28, 1998, and ending on
December 31, 1999 (which shall be treated as one year for purposes of
these Rates and Terms);(2) $250 for each of the years 2000 through 2003; and
(3) $500 for 2004, except in the case of an NEE that is, or is affiliated
with, an educational institution with fewer than 10,000 enrolled students,
in which case the minimum fee shall be $250.(b) Other Noncommercial Webcasters Transmitting a Single Channel. Except
as provided in Section 3(c) and subject to Section 4, each Noncommercial
Webcaster that is not an NEE shall pay nonrefundable minimum annual fees
as set forth below for all or any portion of a year in which it made or
makes any digital audio transmissions of sound recordings under the
section 114 statutory license (whether a Broadcaster Simulcast, an
Internet-only transmission or otherwise):(1) $200 for the period beginning on October 28, 1998, and ending on
December 31, 1999 (which shall be treated as one year for purposes of
these Rates and Terms);(2) $250 for 2000;
(3) $300 for 2001, except in the case of a Noncommercial Webcaster
substantially all of the programming of which is reasonably classified as
news, talk, sports or business programming, in which case the minimum fee
shall be $250;(4) $350 for 2002, except in the case of a Noncommercial Webcaster
substantially all of the programming of which is reasonably classified as
news, talk, sports or business programming, in which case the minimum fee
shall be $250;(5) $400 for 2003, except in the case of a Noncommercial Webcaster
substantially all of the programming of which is reasonably classified as
news, talk, sports or business programming, in which case the minimum fee
shall be $250; and(6) $500 for 2004, except in the case of a Noncommercial Webcaster
substantially all of the programming of which is reasonably classified as
news, talk, sports or business programming, in which case the minimum fee
shall be $250.(c) Noncommercial Webcasters Transmitting Multiple Channels.
Notwithstanding Section 3(a) or (b) as applicable, the nonrefundable
minimum annual fee shall be $500 for each year (as identified in Section
3(a)(1) through (3) or 3(b)(1) through (6)) for any Noncommercial
Webcaster that made or makes digital audio transmissions of sound
recordings on more than one channel or station of programming; provided
that -(1) if the digital audio transmissions of sound recordings over any
channels or stations in excess of one consist only of "Incidental
Performances" (as defined in Section 9(f)), the nonrefundable minimum
annual fee shall be as provided in Section 3(a) or (b) as applicable;(2) if substantially all of the programming of all of a Noncommercial
Webcaster's channels and stations is reasonably classified as news, talk,
sports or business programming, the minimum fee shall be $250;
Here is the text of the document in case the link goes bad:
Rates and Terms Available to Certain Noncommercial Webcasters
1. General
(a) Availability of Rates and Terms. The rates and terms set forth herein
(the "Rates and Terms") cover the making of public performances of sound
recordings by means of digital audio transmissions under the statutory
license of 17 U.S.C. 114 by "Noncommercial Webcasters" (as defined in
Section 9(e) hereof), and the reproduction of ephemeral recordings used
solely to facilitate such transmissions under the statutory license of 17
U.S.C. 112(e), during the period beginning on October 28, 1998, and ending
on December 31, 2004. A Noncommercial Webcaster may elect to be subject to
these Rates and Terms, in their entirety, by complying with the procedure
set forth in Section 2 hereof.
(b) Relationship to Other Provisions. Subject to Section 7, any
Noncommercial Webcaster relying upon the statutory licenses set forth in
17 U.S.C. 112 and 114 under these Rates and Terms shall comply with the
requirements of 17 U.S.C. 112 and 114, these Rates and Terms and other
governing provisions established by the Copyright Office. Any terms
determined in accordance with 17 U.S.C. 112 and 114 and applicable to the
collection and distribution by SoundExchange of payments under 17 U.S.C.
112 and 114 from commercial eligible nonsubscription transmission services
(e.g. terms relating to distribution of royalties by SoundExchange,
deductions from distributions, unclaimed funds, possible designation of
successors to SoundExchange in the event of its dissolution, retention of
records, verification, and confidentiality of payment information) shall
apply to payments under these Rates and Terms except to the extent
inconsistent with these Rates and Terms.
(c) Relationship to Other Agreements. These Rates and Terms are without
prejudice to, and subject to, any voluntary agreements that a
Noncommercial Webcaster may have entered into with any sound recording
copyright owner. Should there be any voluntarily negotiated rates and
terms arrived at between copyright owners and webcasters that are adopted
by the Librarian of Congress during 2003 as rates and terms for eligible
nonsubscription transmission services following publication of such rates
and terms in the Federal Register pursuant to 37 C.F.R. Sec. 251.63(b),
any Noncommercial Webcaster that qualifies for such rates may, by written
notice to SoundExchange, elect, for 2004, to pay royalties under the rates
and terms adopted by the Librarian in lieu of the rates and terms
applicable hereunder; provided that if a Noncommercial Webcaster does so,
it shall at the time its first 2004 payment is due under the terms adopted
by the Librarian, pay any additional amount that would have been due under
the rates and terms adopted by the Librarian for the period beginning on
October 28, 1998, and ending on December 31, 2003, in excess of the
royalties previously paid by the Noncommercial Webcaster for that period
under these Rates and Terms.
(d) CARP Proceedings. A Noncommercial Webcaster that elects to be subject
to these Rates and Terms agrees that it has elected these terms in lieu of
participating in a copyright arbitration royalty panel ("CARP") proceeding
to set rates for the 2003-2004 period and in lieu of any different rates
and terms that may be determined through such a CARP proceeding. Thus,
once a Noncommercial Webcaster has elected these Rates and Terms, it shall
refrain from participating in any such CARP proceeding and can opt out of
these Rates and Terms only as provided in Section 1(c).
2. Election for Treatment as a Noncommercial Webcaster
(a) Election Process. A Noncommercial Webcaster that wishes to elect to be
subject to these Rates and Terms in lieu of any other royalty rates and
terms that otherwise might apply under 17 U.S.C. 112 and 114 for the
period beginning on October 28, 1998, and ending on December 31, 2004,
shall submit to SoundExchange a completed and signed election form
(available on the SoundExchange Web site at http://www.soundexchange.com)
by no later than the date 30 days after publication of these Rates and
Terms in the Federal Register. Notwithstanding the preceding sentence-
(1) if a Noncommercial Webcaster has not previously made digital audio
transmissions of sound recordings under the section 114 statutory license,
the Noncommercial Webcaster may make its election by no later than the
first date on which it would be obligated under these Rates and Terms to
make a royalty payment for the use of sound recordings under the section
112 or 114 statutory license; and
(2) an "NEE" (as defined in Section 9(d)) may make its election by no
later than October 15, 2003.
(b) Effect of Election or Nonelection. A Noncommercial Webcaster that
fails to make a timely election shall pay royalties as otherwise provided
under 17 U.S.C. 112 and 114 (the "Statutory Rate"). Subject to Section
1(c), if a Noncommercial Webcaster timely elects to be covered by these
Rates and Terms, the Noncommercial Webcaster shall thereafter be obligated
to pay royalties under and comply with the provisions of these Rates and
Terms through December 31, 2004, provided that such Noncommercial
Webcaster continues to meet the conditions for eligibility as a
Noncommercial Webcaster, as set forth in 17 U.S.C. 114(f)(5)(E)(i) (as
added by the Small Webcaster Settlement Act of 2002).
(c) Proof of Eligibility. A Noncommercial Webcaster that makes an election
pursuant to Section 2(a) shall make available to SoundExchange, within 30
days after SoundExchange's written request at any time during the 3 years
following such election, sufficient evidence to support its eligibility as
a Noncommercial Webcaster and, if applicable, as an NEE. Any proof of
eligibility provided hereunder shall be provided with a certification
signed by the chief executive officer of the Noncommercial Webcaster, or
other person with similar management authority over the Noncommercial
Webcaster, certifying that the information provided is accurate and the
person signing is authorized to act on behalf of the Noncommercial
Webcaster.
3. Minimum Annual Fees
(a) NEEs Transmitting a Single Channel. Except as provided in Section 3(c)
and subject to Section 4, each NEE shall pay nonrefundable minimum annual
fees as set forth below for all or any portion of a year in which it made
or makes any digital audio transmissions of sound recordings under the
section 114 statutory license (whether a "Broadcaster Simulcast" (as
defined in Section 9(b)), an Internet-only transmission or otherwise):
(1) $200 for the period beginning on October 28, 1998, and ending on
December 31, 1999 (which shall be treated as one year for purposes of
these Rates and Terms);
(2) $250 for each of the years 2000 through 2003; and
(3) $500 for 2004, except in the case of an NEE that is, or is affiliated
with, an educational institution with fewer than 10,000 enrolled students,
in which case the minimum fee shall be $250.
(b) Other Noncommercial Webcasters Transmitting a Single Channel. Except
as provided in Section 3(c) and subject to Section 4, each Noncommercial
Webcaster that is not an NEE shall pay nonrefundable minimum annual fees
as set forth below for all or any portion of a year in which it made or
makes any digital audio transmissions of sound recordings under the
section 114 statutory license (whether a Broadcaster Simulcast, an
Internet-only transmission or otherwise):
(1) $200 for the period beginning on October 28, 1998, and ending on
December 31, 1999 (which shall be treated as one year for purposes of
these Rates and Terms);
(2) $250 for 2000;
(3) $300 for 2001, except in the case of a Noncommercial Webcaster
substantially all of the programming of which is reasonably classified as
news, talk, sports or business programming, in which case the minimum fee
shall be $250;
(4) $350 for 2002, except in the case of a Noncommercial Webcaster
substantially all of the programming of which is reasonably classified as
news, talk, sports or business programming, in which case the minimum fee
shall be $250;
(5) $400 for 2003, except in the case of a Noncommercial Webcaster
substantially all of the programming of which is reasonably classified as
news, talk, sports or business programming, in which case the minimum fee
shall be $250; and
(6) $500 for 2004, except in the case of a Noncommercial Webcaster
substantially all of the programming of which is reasonably classified as
news, talk, sports or business programming, in which case the minimum fee
shall be $250.
(c) Noncommercial Webcasters Transmitting Multiple Channels.
Notwithstanding Section 3(a) or (b) as applicable, the nonrefundable
minimum annual fee shall be $500 for each year (as identified in Section
3(a)(1) through (3) or 3(b)(1) through (6)) for any Noncommercial
Webcaster that made or makes digital audio transmissions of sound
recordings on more than one channel or station of programming; provided
that -
(1) if the digital audio transmissions of sound recordings over any
channels or stations in excess of one consist only of "Incidental
Performances" (as defined in Section 9(f)), the nonrefundable minimum
annual fee shall be as provided in Section 3(a) or (b) as applicable;
(2) if substantially all of the programming of all of a Noncommercial
Webcaster's channels and stations is reasonably classified as news, talk,
sports or business programming, the minimum fee shall be $250;
(3) if a Noncommercial Webcaster that owns or operates multiple
over-the-air terrestrial AM or FM radio stations offers more than one
Internet channel or station on which substantially all of the programming
consists of Broadcaster Simulcasts, then -
(A) a nonrefundable minimum annual fee otherwise determined in accordance
with this Section 3(c) shall extend to only three such Internet channels
or stations offering Broadcaster Simulcasts, as well as associated
Internet-only channels (subject to Section 5);
(B) additional nonrefundable minimum annual fees shall be payable under
this Section 3(c) for additional groups of up to three Internet channels
or stations offering Broadcaster Simulcasts, as well as associated
Internet-only channels (subject to Section 5);
(C) each such group of up to three such Internet channels or stations, as
well as associated Internet-only channels (subject to Section 5), shall be
treated as a separate Noncommercial Webcaster for purposes of Sections
3(c)(2), 4 and 5;
(D) all such channels or stations offering Broadcaster Simulcasts in a
group shall be treated as a single channel or station for purposes of
Section 5;
(E) any additional channels or stations considered with the group for
purposes of Section 5 shall also be considered with the group for purposes
of Section 4; and
(F) accordingly, the Noncommercial Webcaster may offer two additional
Internet-only channels or stations with each group of up to three channels
or stations offering Broadcaster Simulcasts without triggering payments
under Section 5(b), but all of such channels or stations (up to a total of
five) shall be considered together for purposes of determining whether the
Noncommercial Webcaster exceeds the 146,000 Aggregate Tuning Hour
threshold in Section 4; and
(4) for purposes of determining the number of channels or stations of
programming offered by a Noncommercial Webcaster, an "archived program"
(as defined in 17 U.S.C. 114(j)(2)) that complies with the conditions in
17 U.S.C. 114(d)(2)(C)(iii)(I) and (II) shall not be considered a separate
channel or station of programming except in the case of a Noncommercial
Webcaster that exclusively makes digital audio transmissions of archived
programming.
(d) Payment in Lieu of Providing Reports of Use. All Noncommercial
Webcasters' payments of nonrefundable minimum annual fees for each of 2003
and 2004 shall be accompanied by an additional payment of $50 in 2003 and
$25 in 2004 in lieu of the provision of reports of use of sound
recordings, as described in Section 7.
4. Usage Fees for 2004
(a) In General. Subject to Section 5, the nonrefundable minimum annual fee
payable under Section 3 for 2004 shall constitute full payment for digital
audio transmissions totaling not more than 146,000 "Aggregate Tuning
Hours" (as defined in Section 9(a)) per month. If, in any month during
2004, a Noncommercial Webcaster makes digital audio transmissions of sound
recordings under the section 114 statutory license in excess of 146,000
Aggregate Tuning Hours, the Noncommercial Webcaster shall pay additional
royalties for those digital audio transmissions in excess of 146,000
Aggregate Tuning Hours at the following rates, subject to an election as
provided in Section 4(b):
(1) $0.0002176 (.02176¢) per "Performance" (as defined in Section 9(f));
or
(2) $.00251 (.251¢) per "Aggregate Tuning Hour," except in the case of
channels or stations where substantially all of the programming is
reasonably classified as news, talk, sports or business programming, in
which case the royalty rate shall be $.0002 (.02¢) per Aggregate Tuning
Hour.
For the avoidance of doubt, a Noncommercial Webcaster shall calculate its
Aggregate Tuning Hours of digital audio transmissions each month and shall
pay any additional royalties owed for such month as provided above in this
Section 4(a), but the Noncommercial Webcaster shall not owe any additional
royalties for any subsequent months until such time as the Noncommercial
Webcaster again exceeds the 146,000 Aggregate Tuning Hour threshold during
a given month.
(b) Election of Per Performance or Aggregate Tuning Hour Rate. The first
time a Noncommercial Webcaster is required to pay additional royalties
under Section 4(a), the Noncommercial Webcaster shall elect to pay based
on the per performance royalty set forth in Section 4(a)(1) or the
aggregate tuning hour royalty set forth in Section 4(a)(2) for all
additional royalties under Section 4(a) incurred during the remainder of
2004, if any. Thus, for example, a Noncommercial Webcaster may not in one
month when its digital audio transmissions exceed 146,000 Aggregate Tuning
Hours calculate its additional royalties based on the per performance
royalty and in another month when its digital audio transmissions exceed
146,000 Aggregate Tuning Hours calculate its additional royalties based on
the aggregate tuning hour royalty.
(c) Reporting. For 2004, each Noncommercial Webcaster making digital audio
transmissions in excess of 146,000 Aggregate Tuning Hours in any month
shall report its Aggregate Tuning Hours of digital audio transmissions to
SoundExchange in its monthly statement of account under Section 6(d). Each
Noncommercial Webcaster having a statutory license in 2004 and not making
digital audio transmissions in excess of 146,000 Aggregate Tuning Hours in
any month shall so certify in the statement of account accompanying its
first payment in 2005, if any.
5. Fees for More Than Three Channels of Programming
Subject to Section 3(c)(3), if in any year (as identified in Section
3(a)(1) through (3) or 3(b)(1) through (6)), a Noncommercial Webcaster
made or makes digital audio transmissions of sound recordings on more than
three channels or stations of programming, then -
(a) the Noncommercial Webcaster shall by written notice to SoundExchange
at the time of its first payment for the year or its inception of its
first channel or station in excess of three, whichever is later, designate
three channels or stations for which the nonrefundable minimum annual fee
payable under Section 3, and in 2004, any additional royalty payment under
Section 4, shall constitute full payment; and
(b) the Noncommercial Webcaster shall pay royalties for all its digital
audio transmissions of sound recordings under the section 114 statutory
license over its other channels and stations at the Statutory Rate for
digital audio transmissions made by commercial eligible nonsubscription
transmission services at such time, provided that -
(1) the Noncommercial Webcaster shall not be required to make any minimum
payment that otherwise applies to commercial eligible nonsubscription
transmission services;
(2) the nonrefundable minimum annual fee payable under Section 3 shall not
be creditable toward such payments for its other channels and stations;
(3) such payments for its other channels and stations shall be due at the
times provided in Section 6 (rather than any different times otherwise
applicable to commercial eligible nonsubscription transmission services),
except that if the Statutory Rate for digital audio transmissions made by
commercial eligible nonsubscription transmission services has not then
been determined, such payments for its other channels and stations shall
be due 45 days following the month in which the Statutory Rate is
determined; and
(4) the Noncommercial Webcaster shall comply with other terms relating to
royalty payments that otherwise apply to commercial eligible
nonsubscription transmission services (e.g. terms concerning any election
among payment options).
For the avoidance of doubt, by operation of Section 3(c)(3), when a
Noncommercial Webcaster that owns or operates multiple over-the-air
terrestrial AM or FM radio stations offers more than one Internet channel
or station on which substantially all of the programming consists of
Broadcaster Simulcasts: (i) such Broadcaster Simulcasts shall in no event
be subject to the Statutory Rate for digital audio transmissions made by
commercial eligible nonsubscription transmission services, and (ii) only
programming offered on Internet-only channels or stations in excess of two
that may be associated with a group of up to three channels or stations
offering Broadcaster Simulcasts may be subject to that Statutory Rate as
provided in this Section.
6. Payment of Royalties in General
(a) Timing of Minimum Payments. Payments of nonrefundable minimum annual
fees under Section 3 for the period beginning on October 28, 1998, and
ending on December 31, 2003, shall be due by October 15, 2003.
Nonrefundable minimum annual fees for 2004 shall be due by January 31,
2004. Notwithstanding the foregoing provisions of this Section 6(a), when
a Noncommercial Webcaster has not previously made digital audio
transmissions of sound recordings under the section 114 statutory license,
the Noncommercial Webcaster may make its first payment of nonrefundable
minimum annual fees within 45 days following the month in which the
Noncommercial Webcaster commences digital audio transmissions of sound
recordings under the section 114 statutory license.
(b) Timing of Other Payments. Any payments due under Section 4 or 5 shall
be due 45 days following the month in which the liability accrues.
(c) Credit. Any payments of section 112 or 114 statutory license royalties
made by a Noncommercial Webcaster to SoundExchange prior to its election
under Section 2 shall be creditable to the payments due under Sections 3
through 5 of these Rates and Terms.
(d) Remittance. Payments of all amounts due under these Rates and Terms
shall be made to SoundExchange and shall under no circumstances be
refundable. Payments shall be accompanied by a statement of account in the
form made available on the SoundExchange Web site located at
http://www.soundexchange.com.
(e) Ephemeral Recordings. The royalty payable under 17 U.S.C. 112(e) for
any reproduction of a phonorecord made during the period beginning on
October 28, 1998, and ending on December 31, 2004, and used solely by a
Noncommercial Webcaster to facilitate transmissions for which it pays
royalties as and when provided in these Rates and Terms shall be deemed to
be included within, and to comprise 8.8% percent of, the Noncommercial
Webcaster's royalty payments under these Rates and Terms.
(f) Continuing Obligation to Pay. If Statutory Rates and terms for
Noncommercial Webcasters for the period beginning January 1, 2005 have not
been established by December 31, 2004, then Noncommercial Webcasters shall
continue to make payments at the 2004 rates under these Rates and Terms
until such successor rates and terms are established. Such interim
royalties shall be subject to retroactive adjustment based on the final
successor rates. Any overpayment shall be fully creditable to future
payments, and any underpayment shall be paid within thirty days after
establishment of the successor rates and terms, except as may otherwise be
provided in the successor terms.
(g) Late Payments. A Noncommercial Webcaster shall pay a late fee of
0.75% per month, or the highest lawful rate, whichever is lower, for any
payment received by SoundExchange after the due date. Late fees shall
accrue from the due date until payment is received by SoundExchange.
7. Notice and Recordkeeping
(a) Data for Distributions. Noncommercial Webcasters electing these Rates
and Terms shall not be required to provide reports of use of sound
recordings for 2003 and 2004, even if the Librarian of Congress issues
regulations otherwise requiring such reports by Noncommercial Webcasters.
The payments required by Section 3(d) are intended to facilitate
SoundExchange's ability to collect or otherwise acquire substitute data on
which to base distributions to copyright owners and performers of payments
made by Noncommercial Webcasters, although SoundExchange shall be under no
obligation to spend such payments in any particular way or to collect or
otherwise acquire any particular data by any particular means.
SoundExchange may base its distributions to copyright owners and
performers of payments made by Noncommercial Webcasters on any data or
methodology determined by its board.
(b) Future Reporting. The Noncommercial Webcasters shall designate a task
force of not less than five members that shall be obligated to use
reasonable efforts to work with SoundExchange to determine data fields and
report formats and recommend policies, procedures and systems for the
delivery of electronic reports of use of sound recordings to SoundExchange
sufficient to permit SoundExchange, beginning in 2005, to distribute the
royalties paid by Noncommercial Webcasters to those copyright owners and
performers whose sound recordings are used by Noncommercial Webcasters
based on data reported by or on behalf of Noncommercial Webcasters. In the
absence of agreement among the Noncommercial Webcasters concerning the
membership of such task force, each Noncommercial Webcaster shall be
obligated to use reasonable efforts to do the foregoing.
8. Default
A Noncommercial Webcaster shall comply with all the requirements of these
Rates and Terms. If it fails to do so, SoundExchange may give written
notice to the Noncommercial Webcaster that, unless the breach is remedied
within thirty days from the date of notice and not repeated, the
Noncommercial Webcaster's authorization to make public performances and
ephemeral reproductions under these Rates and Terms will be automatically
terminated. Such termination renders any public performances and ephemeral
reproductions as to which the breach relates actionable as acts of
infringement under 17 U.S.C. 501 and fully subject to the remedies
provided by 17 U.S.C. 502-506 and 509.
9. Definitions
As used in these Rates and Terms, the following terms shall have the
following meanings:
(a) The term "Aggregate Tuning Hours" means the total hours of programming
that a Noncommercial Webcaster has transmitted during the relevant period
to all listeners within the United States over the relevant channels or
stations, and from any archived programs, that provide audio programming
consisting, in whole or in part, of eligible nonsubscription
transmissions, less the actual running time of any sound recordings for
which the Noncommercial Webcaster has obtained direct licenses apart from
17 U.S.C. 114(d)(2) or which do not require a license under United States
copyright law. By way of example, if a Noncommercial Webcaster transmitted
one hour of programming to 10 simultaneous listeners, the Noncommercial
Webcaster's Aggregate Tuning Hours would equal 10. If three minutes of
that hour consisted of transmission of a directly licensed recording, the
Noncommercial Webcaster's Aggregate Tuning Hours would equal 9 hours and
30 minutes. As an additional example, if one listener listened to a
Noncommercial Webcaster for 10 hours (and none of the recordings
transmitted during that time was directly licensed), the Noncommercial
Webcaster's Aggregate Tuning Hours would equal 10.
(b) A "Broadcaster Simulcast" is a simultaneous Internet transmission or
retransmission of an over-the-air terrestrial AM or FM radio broadcast,
including one with previously broadcast programming substituted for
programming for which requisite licenses or clearances to transmit over
the Internet have not been obtained and one with substitute
advertisements, where such Internet transmission or retransmission is made
by a Noncommercial Webcaster that owns or operates the over-the-air radio
station making the AM or FM broadcast.
(c) An "Incidental Performance" is a Performance that both:
(1) makes no more than incidental use of sound recordings including, but
not limited to, brief musical transitions in and out of commercials or
program segments, brief performances during news, talk, sports and
business programming, brief background performances during disk jockey
announcements, brief performances during commercials of sixty seconds or
less in duration, or brief performances during sporting or other public
events; and
(2) other than ambient music that is background at a public event, does
not contain an entire sound recording and does not feature a particular
sound recording of more than thirty seconds (as a sound recording used as
a theme song is featured).
(d) An "NEE" or "Noncommercial Educational Entity" is a Noncommercial
Webcaster that is directly operated by, or is affiliated with and
officially sanctioned by, and the digital audio transmission operations of
which are, during the course of the year, staffed substantially by
students enrolled at, a domestically accredited primary or secondary
school, college, university or other post-secondary degree-granting
educational institution, but that is not a "public broadcasting entity"
(as defined in 17 U.S.C. 118(g)) qualified to receive funding from the
Corporation for Public Broadcasting pursuant to the criteria set forth in
47 U.S.C. 396.
(e) The term "Noncommercial Webcaster" shall have the meaning given in 17
U.S.C. 114(f)(5)(E)(i) (as added by the Small Webcaster Settlement Act of
2002).
(f) A "Performance" is each instance in which any portion of a sound
recording is publicly performed to a listener by means of a digital audio
transmission or retransmission (e.g., the delivery of any portion of a
single track from a compact disc to one listener) but excluding the
following:
(1) a performance of a sound recording that does not require a license
(e.g., the sound recording is not copyrighted);
(2) a performance of a sound recording for which the Noncommercial
Webcaster has previously obtained a license from the copyright owner of
such sound recording; and
(3) an Incidental Performance.
Small Webcaster Settlement Act of 2002
Of course what does it all really mean? Can't tell you that yet. Working on it....
The 'Marybeth' that I'm singing to in my James and Marybeth song is finally getting some media attention.
See why what she thinks is so important guys?
I wonder if she's heard my song...
She Holds the Cards in Copyright Fight
By for the LA Times
Peters believes that many "fair-use" practices consumers take for granted, such as taping a TV program or copying a magazine article, need to be reevaluated in the digital age because the economic harm to copyright owners is far greater. For instance, she agrees with court rulings that Napster-style song swapping over the Internet is illegal."Some of the activities you tolerate in a non-digital world are because of the inefficiency of making the copy, how the copy is degraded, and the difficulty in sending copies to someone beyond yourself," Peters said. "All of those things go away in a digital environment."
As Congress has deferred some of the stickiest questions to the Copyright Office, Peters finds herself in the uncomfortable position of having to set many of the ground rules for the digital age and, in some ways, pick the winners.
...Peters says she strives to be fair and consider all viewpoints but is limited by statutes set by Congress.Some would like to see Peters become more active in negotiating a truce in the copyright battle. But she said that is not her role, unless Congress asks.
"We've offered on more than one occasion to take on an assignment from Congress to try to get the parties together to see if they could come up with some guidelines for uses under the fair-use doctrine," Peters said. "Nobody took us up on it."
Here's the full text of the article in case the link goes bad:
http://www.latimes.com/business/la-fi-copy19oct19,0,5760167.story?coll=la%2Dheadlines%2Dbusiness%2Dmanual
She Holds the Cards in Copyright Fight
* An official in an obscure agency will help define 'fair use' in the digital age.
Los Angeles Times - latimes.com
By Edmund Sanders, Times Staff Writer
WASHINGTON -- The Library of Congress, home to about 18 million books, many dating back to the mid-19th century, might be the last place you'd expect to find somebody at the center of one of the hottest debates of the digital era.
But Marybeth Peters, who for 38 years has labored away in the U.S. Copyright Office, an obscure arm of the library, is serving as referee in the battle between entertainment firms that are trying to control the copying and piracy of their content, and technology companies and consumers eager to explore new conveniences offered by the Internet.
On Sunday, Internet radio stations were scheduled to start paying music royalties to record labels, threatening an untold number of small Webcasters that couldn't afford the controversial fee imposed by the Library of Congress. Record companies Friday agreed to defer most of the royalties they're owed, temporarily defusing that issue.
But Internet radio is just one of many areas of debate in which Copyright Register Peters and her office will play a big role. As the federal government's top expert on copyright law, she will have a significant influence on how people can download music, tape TV programs and copy or sell e-books.
Her agency recently declared that consumers -- who are free to sell books and CDs that they have legally acquired -- should have no such rights when it comes to e-books or digital music.
And the Copyright Office has denied virtually every request by librarians, educators and consumers seeking exceptions to the Digital Millennium Copyright Act. The law makes it a crime to bypass copy-protection devices in CDs, DVDs and other digital products, even to make a legally permissible copy.
Peters believes that many "fair-use" practices consumers take for granted, such as taping a TV program or copying a magazine article, need to be reevaluated in the digital age because the economic harm to copyright owners is far greater. For instance, she agrees with court rulings that Napster-style song swapping over the Internet is illegal.
"Some of the activities you tolerate in a non-digital world are because of the inefficiency of making the copy, how the copy is degraded, and the difficulty in sending copies to someone beyond yourself," Peters said. "All of those things go away in a digital environment."
As Congress has deferred some of the stickiest questions to the Copyright Office, Peters finds herself in the uncomfortable position of having to set many of the ground rules for the digital age and, in some ways, pick the winners.
"They are more at the center of controversies over money than ever before," said Ralph Oman, former head of the Copyright Office.
Peters and her staff are housed in a dimly lighted building originally designed to hold stacks of books. Old-fashioned shelves of card catalog trays, holding the listings of millions of books in the Library of Congress, fill the rooms.
The Copyright Office was founded in 1870 to expedite the restocking of the Library of Congress after most of its books were burned in the War of 1812. Each year, the office registers about half a million new books, plays, poems, motion pictures, photographs, sculptures and software.
Peters, 63, a former high school teacher who started as a music examiner at the Copyright Office, worked her way up after attending George Washington University Law School at night. She concedes that the Copyright Office is struggling to keep pace with the new rule-making duties.
"Congress keeps giving us things to do, and some of them have taken over our lives," Peters said.
In the mid-1990s -- against the wishes of many in Peters' office, she said -- Congress gave the agency responsibility for resolving disputes over royalties and compulsory licenses, such as how much satellite TV providers must pay broadcasters or how much Web radio stations should pay music companies.
In 1998, lawmakers surprised the Copyright Office by giving it regulatory authority every three years to make exceptions to the Digital Millennium Copyright Act's anti-circumvention law for those who can show they are being unfairly harmed.
Peters was amazed by the public reaction to her agency's new job. In 2000, protesters picketed outside the Library of Congress to push for broader exemptions to the DMCA.
The Copyright Office is now dealing with the next anti-circumvention proceeding, which is expected to be especially contentious. The proceeding is likely be completed by next year.
Some worry that the Copyright Office is too closely aligned with the interests of copyright owners. "The Copyright Office has acted like the tool of large business concerns for a couple of decades now," said William Goldsmith, owner of a Web-based radio station in Paradise, Calif.
The royalty fees, he says, would force him to pay $5,000 a month in royalties, though he collects only $4,000 in revenue.
Many also point to a "revolving door" between the Copyright Office and the entertainment industry.
Breaking with tradition, Peters hired several advisors from the copyright industry. Two came from a New York law firm that represented movie studios and publishers, including Steven Spielberg, Doubleday and adult magazine publisher Larry Flynt.
Peters denies any bias on her staff, noting the difficulties in finding qualified experts on a government salary -- which tops out at about $138,000.
"It used to be that people worked here their whole life, people like me," she said. "I don't think that's healthy."
But Peters concedes that she tends to side most often with creators and copyright owners.
"My heart is more with the individual author," she said. "If you look away from the person who really is the genius, the spark, then I think you lose sight about what copyright is all about."
Such views have sparked criticism from librarians, digital rights groups and academics who say the Copyright Office has lost sight of the consumer and is too preoccupied with the commercial values of corporate copyright owners.
Though Peters' support for the rights of creators sometimes aligns her with entertainment and media giants, she points to numerous battles she waged against industry interests.
She sided with freelance writers against the New York Times in a Supreme Court battle over reproduction rights of articles loaded into electronic databases.
She opposed music companies that wanted to levy royalties twice on streaming or downloading music, arguing that charging for the temporary copies made during the process amounted to double-dipping.
But critics say her recent decisions and recommendations on digital issues threaten to restrict consumers and make it easier for entertainment companies to charge for activities that are currently free, such as taping a song or movie for personal use.
Peters says she strives to be fair and consider all viewpoints but is limited by statutes set by Congress.
Some would like to see Peters become more active in negotiating a truce in the copyright battle. But she said that is not her role, unless Congress asks.
"We've offered on more than one occasion to take on an assignment from Congress to try to get the parties together to see if they could come up with some guidelines for uses under the fair-use doctrine," Peters said. "Nobody took us up on it."
Courtesy of The Onion:
RIAA Sues Radio Stations For Giving Away Free Music
Here is the complete text of the article in case the link goes bad:
http://www.theonion.com/onion3836/riaa_sues_radio_stations.html
VOLUME 38 ISSUE 36 AMERICA'S FINEST NEWS SOURCE 2 OCTOBER 2002
Front Page News Previous Issue Archives
MEDIA
RIAA Sues Radio Stations For Giving Away Free Music
LOS ANGELES—The Recording Industry Association of America filed a $7.1 billion lawsuit against the nation's radio stations Monday, accusing them of freely distributing copyrighted music.
Above: RIAA president Hilary Rosen and attorney Russell Frackman answer questions in a Los Angeles courthouse.
Above: RIAA president Hilary Rosen and attorney Russell Frackman answer questions in a Los Angeles courthouse.
"It's criminal," RIAA president Hilary Rosen said. "Anyone at any time can simply turn on a radio and hear a copyrighted song. Making matters worse, these radio stations often play the best, catchiest song off the album over and over until people get sick of it. Where is the incentive for people to go out and buy the album?"
According to Rosen, the radio stations acquire copies of RIAA artists' CDs and then broadcast them using a special transmitter, making it possible for anyone with a compatible radio-wave receiver to listen to the songs.
"These radio stations are extremely popular," Rosen said. "They flagrantly string our songs together in 'uninterrupted music blocks' of up to 70 minutes in length, broadcasting nearly one CD's worth of product without a break, and they actually have the gall to allow businesses to advertise between songs. It's bad enough that they're giving away our music for free, but they're actually making a profit off this scheme."
RIAA attorney Russell Frackman said the lawsuit is intended to protect the artists.
"If this radio trend continues, it will severely damage a musician's ability to earn a living off his music," Frackman said. "[Metallica drummer] Lars Ulrich stopped in the other day wondering why his last royalty check was so small, and I didn't know what to say. How do you tell a man who's devoted his whole life to his music that someone is able to just give it away for free? That pirates are taking away his right to support himself with his craft?"
For the record companies and the RIAA, one of the most disturbing aspects of the radio-station broadcasts is that anyone with a receiver and an analog tape recorder can record the music and play it back at will.
"I've heard reports that children as young as 8 tape radio broadcasts for their own personal use," Rosen said. "They listen to a channel that has a limited rotation of only the most popular songs—commonly called 'Top 40' stations—then hit the 'record' button when they hear the opening strains of the song they want. And how much are they paying for these songs? A big fat zip."
Above: One of the hundreds of radio stations being sued for distributing copyrighted music.
Above: One of the hundreds of radio stations being sued for distributing copyrighted music.
Continued Rosen: "According to our research, there is one of these Top 40 stations in every major city in the country. This has to be stopped before the music industry's entire economic infrastructure collapses."
Especially distressing to the RIAA are radio stations' "all-request hours," when listeners call in to ask radio announcers, or "disc jockeys," to play a certain song.
"What's the point of putting out a new Ja Rule or Sum 41 album if people can just call up and hear any song off the album that they want?" Frackman asked. "In some instances, these stations actually have the nerve to let the caller 'dedicate' his act of thievery to a friend or lover. Could you imagine a bank letting somebody rob its vaults and then allowing the thief to thank his girlfriend Tricia and the whole gang down at Bumpy's?"
Defenders of radio-based music distribution insist that the relatively poor sound quality of radio broadcasts negates the record companies' charges.
"Radio doesn't have the same sound quality as a CD," said Paul "Cubby" Bryant, music director of New York radio station Z100, one of the nation's largest distributors of free music and a defendant in the suit. "Real music lovers will still buy CDs. If anything, we're exposing people to music they might not otherwise hear. These record companies should be thanking us, not suing us."
Outraged by the RIAA suit, many radio listeners are threatening to boycott the record companies.
"All these companies care about is profits," said Amy Legrand, 21, an avid Jacksonville, FL, radio user who surreptitiously records up to 10 songs a day off the radio. "Top 40 radio is taking the power out of the hands of the Ahmet Erteguns of the world and bringing it back to the people of Clear Channel and Infinity Broadcasting. It's about time somebody finally stood up to those record-company fascists."
I've created a little site with links to the text of the Bill and more information about how you can let your Reps know NOW how much you care:
Save Internet Radio - Vote Yes On the Internet Radio Fairness Act
Here's the letter I'm faxing out.
I'll have a little site up with more information, like my peace site soon, but I wanted to get this out as soon as possible so you can start sending your own letters to your representatives.
Thanks!
September 29, 2002
Your rep here
FAX Here - Fax it to their Washington Number
Re: Vote Yes on The Internet Radio Fairness Act HR 5469
Dear Representative X:
Please vote "Yes" on the Internet Radio Fairness Act (HR 5469), a bill that will be voted on October 1 by the House of Representatives.
On October 20 a new copyright royalty will have to be paid by all Internet radio services -- even those owned by non-commercial, non-profit and academic organizations (we're talking College and Public Owned/Operated Community Radio Stations!).
Hundreds of small Internet radio services have already shut down as a result of these impending fees and many hundreds more services that cannot afford the royalty and will shut down when the payment comes due, unless HR 5469 can save the day on October 1st.
I hope you will not let CARP's unrealistic pricing structure destroy the incredible range of freely available artistic and cultural diversity that has been made possible by the existence of Internet Webcasting.
Please don't let it all be destroyed overnight.
Vote Yes on the Internet Radio Fairness Act (HR 5469).
Sincerely,
Your Name
Address
City/State/Zip (zip very important)
Phone number good too!
I know I just asked you to send a letter to try and stop this war, but it turns out that an Internet Radio Bill was introduced last week (HR 5469) that is basically the legislation we've been waiting for to be introduced, has been!
This six month freeze and call for new rates is basically what I was asking for in the song I wrote to James H. Billington and Marybeth Peters.
This thing gets voted on early this week -- making it really important that you fax a letter out to your Representative by Monday morning at the latest!
Thanks for checking it out and spreading the word:
The Rifle Shot
Contact your U.S. Rep NOW! .
Meanwhile, college webcasting continues to hang in the balance.
See CNN's: Net radio fees threaten college webcasts -
New royalty rates too steep for most school stations
For college stations and other nonprofit webcasters, the fees work out to two cents per listener per 100 songs, plus an 8.8 percent surcharge to cover temporary copies of music needed for streaming.So a station playing 12 songs an hour around the clock would owe $23 per listener each year. Averaging 21 simultaneous listeners keeps the station at the $500 annual minimum. Beyond that, the station has to pay extra.
Here's the complete text of the article in case the link goes bad:
http://europe.cnn.com/2002/TECH/internet/08/28/college.webcasting.ap/index.html
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Net radio fees threaten college webcasts
New royalty rates too steep for most school stations
August 28, 2002 Posted: 1531 GMT
Rachel Bradley, manager of San Diego State University's KCR radio station, fears an end to her station's online broadcasting after fees were imposed by Congress.
------------------------------------------------------------------------
------------------------------------------------------------------------
SAN DIEGO, California (AP) -- The signal from San Diego State University's KCR station is so weak it can barely be heard on campus -- if at all. Yet for the past six years its eclectic programming has reached the entire world.
"The Internet has been a vital part of our broadcasting," said Rachel Bradley, 23, a graduate student and the station's general manager. "It seems to be our lifeline to be an actual, viable radio station."
KCR and many other college stations fear they'll have to give up their newfound "antenna" by year's end because of new webcasting fees.
For listeners, this could mean being cut off from most of the nation's 1,300 college radio stations, which operate on small budgets and play music not heard on commercial radio.
In June, the U.S. Copyright Office issued rates for royalties that webcasters must pay music labels and musicians for sound recordings. The minimum is $500 a year but fees are retroactive to 1998, and many college station's simply can't afford the assessments of at least $2,000.
"Within days I was receiving e-mails from radio stations saying, 'We're going down. You can add another station to your list,'" said Will Robedee, vice chairman of Collegiate Broadcasters Inc.
Stations that have already halted or suspended webcasting include University of California-Los Angeles Radio, KBVR at Oregon State University and New York University's WNYU.
"We didn't want to be liable for any of these huge fees that would cripple us or threaten our existence," said Gabriel Mousesyan, an economics major and general manager of WNYU, which killed its four-year-old webcast in April.
Down to the penny
For college stations and other nonprofit webcasters, the fees work out to two cents per listener per 100 songs, plus an 8.8 percent surcharge to cover temporary copies of music needed for streaming.
So a station playing 12 songs an hour around the clock would owe $23 per listener each year. Averaging 21 simultaneous listeners keeps the station at the $500 annual minimum. Beyond that, the station has to pay extra.
New online royalty rates have strained the budgets of many college stations, such as Gabriel Mousesyan's WNYU, putting the webcasts' future in doubt.
WNYU averaged about 100 listeners, which could result in retroactive fees of more than $9,000. John Simson, executive director of SoundExchange -- a collector and distributor of royalty revenue -- said he would be surprised if more than a few college stations exceeded the minimum.
Robedee, who also acts as the general manager for KTRU at Rice University, said the station averages just under 20 listeners at any one time.
However, KTRU's audience has been doubling every 10 months as use of the high-speed Internet connections needed to listen to Webcasts increases.
Because most college radio stations are classified as noncommercial, they cannot run ads to offset the additional costs. San Diego's KCR operates on a $3,500 annual budget -- a budget it spends down to the penny.
KTRU has a budget of $5,000.
Should stations change their status to commercial, their royalties would more than triple. Commercial broadcasters pay seven cents per 100 songs per listener, and they, too, have been complaining and, in some cases, shutting down.
Webcasters and over-the-air radio stations already pay composers and music publishers royalties for the music they play, based typically on a percentage of their revenues.
Traditional radio broadcasters have been exempt from paying separate royalties to music labels and musicians after successfully arguing they already were promoting the music.
But the music industry succeeded in persuading Congress in 1998 to require such fees from webcasters, and the U.S. Copyright Office set the rates after years of hearings.
Copyright compensation
The Recording Industry Association of America says the fees are needed to compensate copyright holders. The music industry is looking to the Internet as a source of supplemental income so it will not have to live and die by the sale of CDs, Simson said.
"The Internet has been a vital part of our broadcasting. ... It seems to be our lifeline to be an actual, viable radio station."
— Rachel Bradley,
KCR general manager
He added that there is no evidence to support broadcaster assertions that webcasting has promotional value. He said artists and copyright holders lose money every time their music is played for free.
Wayne Coyne -- singer, songwriter and guitarist for The Flaming Lips, a college radio favorite -- agrees the promotional value is marginal. But he does not believe college stations should be charged.
"I have faith that people love to shop," Coyne said.
Simson said he is willing to work on a separate deal with college stations. He denied the new fees were intended to curtail webcasting and said the RIAA and SoundExchange wanted the new medium to continue.
"This is a great new revenue stream," Simson said.
College broadcasters also fear yet-to-be-released record-keeping requirements; the Copyright Office is expected to rule soon on what information broadcasters must report about every song they play.
Stations say if the royalties do not shut them down, the administrative costs associated with the reporting requirements will.
"We are a nonprofit radio station on a college campus, so your options for funding are very limited," Bradley said. "How many bake sales can you do, and how many bowling fund-raisers can you have to offset the costs?"
Copyright 2002 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
Wow this thing is as short as these things get!
Here's the Bill itself, for your perusal (and a quick read at only 5 center-margined double-spaced pages):
H.R. 5285: Internet Radio Fairness Act.
Fresh off the presses and ready for you to fax your reps in (let's say) 15 seconds.
(Maybe 30 seconds if you have to look up your zipcode.)
I think we can all agree that the future of Internet Webcasting is worth 30 seconds.
Thanks!
Contact your Representative and Senators to SAVE INTERNET RADIO!
The list keeps growing and growing.
Let's think of a way that we can demonstrate the value of keeping these college stations open. Keep those URLs coming!
Latest additions:
Radio K - University of Minnesota, KUOM -- (http://radiok.org/)
Foothill College, KFJC-FM -- (http://www.kfjc.org)
Santa Monica College, Los Angeles, KCRW --(http://www.kcrw.org)
Just Updated August 18th!
Show your support for these college stations sticking it out!
This list started with an excerpted from the Chronicle of Higher Education article below -- and then added to when people email me with new stations.
Let's keep this list growing people!
College radio stations that have continued Webcasting despite CARP's proposed fees and reporting requirements:
George Washington University -- WRGW-AM (http://www.gwradio.com)
Hobart and William Smith Colleges -- WEOS-FM (http://www.weos.org)
Middlebury College -- WRMC-FM (http://wrmc.middlebury.edu/wrmc)
Savannah College of Art and Design -- Scadradio (http://www.scadradio.org)
University of Louisiana at Monroe -- KXUL-FM (http://www.kxul.com)
University of Texas at Austin -- KVRX-FM (http://www.kvrx.org)
Radio K - University of Minnesota, KUOM -- (http://radiok.org/)
Foothill College, KFJC-FM -- (http://www.kfjc.org/)
Santa Monica College, Los Angeles, KCRW --(http://www.kcrw.org/)
This is all so sad and so unnecessary.
See the article in the Chronicle of Higher Eduacation:
Radio Silence: Fees Force College Stations to Stop Webcasting.
The fees are the result of a provision in the Digital
Millennium Copyright Act of 1998 that states that
the recording industry and artists should be
compensated for music played over the Internet.
After months of tense negotiations and arbitration
run by the U.S. Copyright Office, Mr. Billington
decided in June what fees Webcasters will pay to
the record industry. The average college station
offering Webcasts -- a licensed noncommercial
college station that simultaneously plays its
over-the-air broadcasts online -- would pay
two-hundredths of a cent per listener per song
for every song it plays.
text of entire article in case the link goes bad:
http://chronicle.com/free/v48/i49/49a03301.htm
From the issue dated August 16, 2002
Radio Silence
Fees force college stations to stop Webcasting
By DAN CARNEVALE
Almost all American college radio stations have listeners who call in to make
ALSO SEE:
Paying for Webcasts
Who's Out and Who's In
Colloquy Live: Join a live, online discussion with Will Robedee, vice chairman of Collegiate Broadcasters Inc. and general manager of KTRU-FM, Rice University's radio station, about new fees for Webcasting by college radio stations, on Thursday, August 15, at 1 p.m., U.S. Eastern time.
song requests. But few have people calling in from Israel.
At the University of Akron, however, WZIP-FM reached a worldwide audience by transmitting its music over the Internet at the same time it broadcast a traditional radio signal locally. At its peak, the station's Webcasts of hip-hop and dance music attracted up to 300 online listeners an hour in places as distant as the Middle East and Australia. Song requests from Jerusalem and Sydney were common.
But in March, WZIP ended its Webcasts. Station officials estimated that WZIP would have to pay more than $10,000 a year under a new royalty-fee plan that was then being considered by James H. Billington, the librarian of Congress. Mr. Billington oversees the U.S. Copyright Office.
"It absolutely broke our hearts to pull the plug," says Thomas G. Beck, general manager of the station.
In anticipation of the fees, which were finally announced earlier this summer, dozens of college radio stations stopped transmitting music over the Internet. They joined hundreds of commercial and noncommercial stations that shut down their Webcasts to avoid both racking up hundreds or thousands of dollars in fees and meeting expensive new record-keeping requirements.
The fees are the result of a provision in the Digital Millennium Copyright Act of 1998 that states that the recording industry and artists should be compensated for music played over the Internet. After months of tense negotiations and arbitration run by the U.S. Copyright Office, Mr. Billington decided in June what fees Webcasters will pay to the record industry. The average college station offering Webcasts -- a licensed noncommercial college station that simultaneously plays its over-the-air broadcasts online -- would pay two-hundredths of a cent per listener per song for every song it plays.
The rates are scheduled to be renewed every two years. The next round of negotiations could begin as early as this fall.
'A Tremendous Amount'
Although the rates are discussed in hundredths of a penny, Mr. Beck says multiplying them by hundreds of thousands of songs played, and by hundreds of listeners, could mean thousands of dollars in fees for stations. "It looks like nothing, but it adds up to a tremendous amount," he says.
So far, few college radio stations have attracted hundreds of online listeners -- most Webcasts pull in an audience of a couple dozen at most. But officials at college stations say the new fees discourage success. If a Webcast becomes too popular, the station soon wouldn't be able to afford to stay in business.
Many radio stations, both Webcasting and traditional, argue that the fees are unreasonably high. They say a flat rate of about $200 per year would be fair for all parties.
Broadcasters say they are even more afraid of a proposal, made by an arbitration panel from the Copyright Office, to require Webcasters to track detailed information about every song they play.
Under that proposal, radio and online stations would have to report each song's title, the artist or group that performed it, the album title, the record label, the catalog number, the International Standard Recording Code (which identifies each track of a compact disk), and the date and time of transmission. For each song, the station also has to keep track of how many listeners were online at the time the song was playing.
Software to collect that sort of information isn't on the market, station officials say. Even if it were, they add, collecting the information would be prohibitively expensive.
Mr. Billington has yet to rule on the panel's record-keeping recommendation, and Copyright Office officials say it may be weeks before he does.
Some of the Webcasters that shut down, like one at the University of California at Los Angeles, were online only. Other stations have continued to play music online, gambling that the courts or Congress will intervene to make the fees and record-keeping rules more radio-friendly. But the recording industry has argued that the fees are already too low and that they don't adequately compensate the companies that produce the music people want to hear.
One group of college radio stations has filed a lawsuit in an appeals court, asserting that smaller stations were unable to participate in the negotiations that helped determine the fees.
And some members of Congress have introduced legislation that might help lower the rates that smaller stations would have to pay to play music online.
In the meantime, students and faculty advisers at college stations are pulling out their calculators to tally what it would cost to continue making Webcasts under the new fees and how much they owe for Webcasting over the past four years.
A Unique Requirement
The fees and proposed record-keeping requirements are unique to online transmissions. Radio stations don't pay fees to the record industry for traditional broadcasts -- the assumption is that the record companies benefit from publicity that leads listeners to buy CD's. But the stations do pay a flat rate, usually around $500 a year, to the songwriters through organizations that support composers, authors, and publishers.
Will Robedee, vice chairman of Collegiate Broadcasters Inc., a trade group for campus radio stations, says broadcasters shouldn't have to pay the record industry and the performers because the record labels depend on radio to drum up sales.
He says the fees for Webcasting are especially far out of line. "It's higher than the broadcast fees for a lower quality and a smaller audience," says Mr. Robedee, who is also general manager of Rice University's radio station, KTRU-FM. He is leading a lobbying effort to get Congress to change the fees and other requirements in the Digital Millennium Copyright Act.
Another college radio station, San Jose State University's KSJS-FM, plays a mix of music that's not usually heard on commercial stations, including classic jazz, death metal, and techno. But KSJS shut down its Webcast of music in January to avoid having to pay fees and keep intricate records.
"As soon as I saw the suggested rates, I thought, 'I don't even want to play this game anymore,'" says Nick Martinez, general manager at the station. "It's not worth it."
The station's traditional broadcasts reach an audience of about 25,000 a week.
The Webcasts attracted only a handful of listeners. "It wasn't any more than 10 to 15 listeners an hour," Mr. Martinez says. "And 99 times out of 100, it was the parents of the DJ's wanting to listen to their son or daughter."
But Amanda Collins, a spokeswoman for the Recording Industry Association of America, says stations could one day make lots of money from playing music online. "Webcasting is in its earliest stage of development," she says. "The fact that they're using our members' works to create a business, that means our members should be compensated."
Ms. Collins says the recording industry is willing to continue negotiating with college stations to reach a conclusion that satisfies both sides. "We're hearing the concerns that the college radio stations are raising, and we're prepared to work with them," she says.
Keeping Track of Listeners
For stations with only a few online listeners, as well as for stations with larger numbers, the proposed record-keeping requirements are at least as daunting as the fees, says Mr. Beck, of the University of Ak-ron. First the station would have to create a database of all the required information about each piece of music. Then it would have to determine how many people are listening to the Webcasts as the songs are playing.
He says no software is available that can handle all of that, meaning his staff members would have to do the work. "That is damn near an impossibility," Mr. Beck says. "We're an all-volunteer staff."
Some stations decided early on to stay out of the Webcasting business, sensing that the copyright law's provisions foretold burdensome rules. A community radio station operated by the University of Virginia, WTJU-FM, considered transmitting its broadcasts online, but decided against it. "We never Webcast, but a lot of it had to do with the financial situation," says Chuck Taylor, general manager of the station. "As a small station, we really could not afford to take that risk."
The station is a member of the Corporation for Public Broadcasting, which negotiated its own fee rate with the recording industry and which covers the Webcasting fees for its member stations. The rate is kept confidential.
But the record-keeping requirements would have been too expensive for the station. Like many radio stations, WTJU currently keeps records the old-fashioned way -- DJ's scribble the names of songs and artists into a logbook.
The books don't include even half the information that's proposed for the new record-keeping requirements, and all of that information would have to be converted to digital form. It would take a full-time employee to handle the work, Mr. Taylor says.
Besides the fees and the record-keeping, the Digital Millennium Copyright Act restricts the number of tracks from one CD or by one artist that can be broadcast online. Webcasters cannot play more than two songs consecutively from one CD, or more than three songs consecutively from a boxed set. Nor can they play more than three songs from one disk or more than four songs from a boxed set within a three-hour period.
That hurts many college radio stations, which often offer a different type of programming than commercial stations.
For example, a college station might broadcast a special on Miles Davis, but the program would be prohibited online if it involved playing too many songs from a single album.
"If you've listened to community or college radio, that's pretty much what we do," Mr. Taylor says. Now Webcasters' options are running out. The Intercollegiate Broadcasting System, a trade group representing about 800 college stations, and the Harvard Radio Broadcasting Company filed a lawsuit in July against the librarian of Congress in the U.S. Court of Appeals for the District of Columbia. The suit asks that Mr. Billington's decision on fees be thrown out.
Going to Court
The stations argue that the fees are especially detrimental to smaller stations. They also say that small stations were left out of the arbitration proceedings because the cost of participating was so high. Under U.S. Copyright Office rules, members of copyright-arbitration panels pick up the cost of the process -- which in this instance meant that each panel member paid about $300,000 to participate, an amount that the stations say skewed the panel's membership in favor of the record industry and large broadcasters.
Whether Congress will take any action remains to be seen. The Senate Judiciary Committee held a hearing on Webcasting in May. A Senate staff member says the committee may meet again now that the fees have been decided.
Some college-station managers are looking for help from a bill introduced in the House of Representatives in July. The bill's sponsors are Rep. Jay Inslee, a Washington Democrat, Rep. Rick Boucher, a Virginia Democrat, and George R. Nethercutt Jr., a Washington Republican.
As written, the legislation would exempt small businesses from having to pay the royalty fees until the next round of negotiations with the Copyright Office. It would also exempt small businesses from having to pay arbitration costs for future proceedings with the office. Mr. Robedee, of the Collegiate Broadcasters Inc., says he'll ask the lawmakers to amend the bill to include colleges in the exemptions.
Joel Willer, general manager of KXUL-FM, the radio station at the University of Louisiana at Monroe, is working with Mr. Robedee to lobby Congress for changes to the Digital Millennium Copyright Act. Mr. Willer, whose station has continued its Webcasts (http://www.kxul.com), says is difficult to gauge whether members of Congress are merely sympathetic to their needs or if they will actually take action.
"They nod politely," he says. "But if they're really going to do something, it's difficult to get that sense."
Mr. Martinez, of the San Jose State radio station, says he is hopeful that the regulations will be changed so his station can resume Webcasting.
"It's college radio," Mr. Martinez says. "Have fun, play music, and leave it at that."
PAYING FOR WEBCASTS
The following are the Webcasting fees and related rules set by James H. Billington, the librarian of Congress:
* Noncommercial radio stations -- including college stations -- that have simultaneous Internet transmissions must pay two-hundredths of a cent per listener per song for every song they play. Commercial radio stations that offer simultaneous Internet transmission will pay seven-hundredths of a cent per song for each online listener.
* Noncommercial stations that broadcast exclusively online must pay seven-hundredths of a cent per song per listener. Noncommercial radio stations that play music online from an archived broadcast -- permitting listeners to hear music on demand instead of what's playing live -- must pay two-hundredths of a cent per listener per song.
* All radio stations that play music online will be required to pay a minimum fee of $500 per year. All of the fees, which begin on September 1, are retroactive to October 1998, when the Digital Millennium Copyright Act went into effect. The first payments are due October 20.
* To determine how much the retroactive fees will be, Webcasters will estimate the number of listeners they had during the past four years. To calculate the fees, the number of listeners is multiplied by 12 songs an hour for traditional radio stations, and by 15 songs an hour for Internet-only stations.
* The income from the fees will be split three ways: Half goes to the record label, 45 percent goes to the featured artist, and 5 percent goes to non-featured artists.
Here are some examples of how much college stations would have to pay under the regulations:
* A radio station that Webcasts 15 songs an hour, 365 days a year, 24 hours a day and attracts 200 online listeners an hour would pay the recording industry $5,256 per year.
* A radio station that Webcasts 15 songs an hour, nine months every year, 18 hours a day and attracts 10 online listeners an hour would rack up fees of $146, but the station would pay the minimum $500 per year.
* An online-only station that Webcasts 15 songs an hour, 365 days a year, 24 hours a day and attracts 100 online listeners an hour would pay the recording industry $9,198 per year.
SOURCE: U.S. Copyright Office
WHO'S OUT AND WHO'S IN
The following are some of the college-affiliated radio and online stations that have ceased Webcasting because of the fees and reporting requirements associated with the Digital Millennium Copyright Act:
Arkansas Tech University -- KXRJ-FM
Azusa Pacific University -- KAPU-FM
Bellevue Community College -- KBCS-FM
Cayuga County Community College -- WDWN-FM
Central Michigan University -- WMHW-FM
Clemson University -- WSBF-FM
Colby College -- WMHB-FM
Emerson College -- WERS-FM
Georgetown College (Ky.) -- WRVG-FM
Houston Community College-Southwest College -- http://swc2.hccs.cc.tx.us/iradio
New York University -- WNYU-FM
Oakland University (Mich.) -- WXOU-FM
Ohio Northern University -- WONB-FM
Oregon State University -- KBVR-FM
San Diego City College -- KSDS-FM
San Jose State University -- KSJS-FM
Swarthmore College -- WSRN-FM
Texas A&M University at Commerce -- KETR-FM
Texas A&M University at Kingsville -- KTAI-FM
University of Akron Main Campus -- WZIP-FM
University of California at Los Angeles -- http://uclaradio.com
University of Massachusetts at Amherst -- WMUA-FM
University of Pittsburgh Main Campus -- WPTS-FM
University of Richmond -- WDCE-FM
University of Southern Colorado -- KTSC-FM
University of Tennessee at Knoxville -- WUTK-FM
University of Wisconsin at Madison -- WSUM-FM
University of Wisconsin at Whitewater -- WSUW-FM
Virginia Tech -- WUVT-FM
William Jewell College -- KWJC-FM
Some college radio stations have continued Webcasting despite the fees and proposed reporting requirements:
George Washington University -- WRGW-AM (http://www.gwradio.com)
Hobart and William Smith Colleges -- WEOS-FM (http://www.weos.org)
Middlebury College -- WRMC-FM (http://wrmc.middlebury.edu/wrmc)
Savannah College of Art and Design -- http://www.scadradio.org
University of Louisiana at Monroe -- KXUL-FM (http://www.kxul.com)
University of Texas at Austin -- KVRX-FM (http://www.kvrx.org)
SOURCES: Save Our Streams; Chronicle reporting
http://chronicle.com
Section: Information Technology
Page: A33
Okay, maybe not the very first -- I'm sure that I've actually written letters to politicians before at some time or another (at least I'd like to think I have), but I didn't keep track of any of those letters and seem to have no specific recollections of them. So the experiences obviously didn't leave much of an impact on me (or them either, most likely :-)
Next step: to create a few customized versions of the Save Internet Radio Letter and make them available for people to print out and FAX easily.
These letters will be "customized" both in terms of who they are addressed to and what they contain (the save internet radio letter was admittedly a little out-of-date).
In particular, I'm thinking about adding support in the letter for the recently-introduced Internet Radio Fairness Act.)
I'll link to them from here for the California folks, for starters, and then maybe I'll try to do a state or two a day.
Feel free to jump in and help me put this table together guys! The idea is to have a "quick and easy fax table" for all fifty states with customized letters quickly available when something comes up and we need to let our Reps know about how we feel quickly...
text in case the link goes bad:
http://thomas.loc.gov/cgi-bin/query/z?c107:H.R.5285:
GPO's PDF version of this bill References to this bill in the Congressional Record Link to the Bill Summary & Status file. Full Display - 5,566 bytes.[Help]
Internet Radio Fairness Act (Introduced in House)
HR 5285 IH
107th CONGRESS
2d Session
H. R. 5285
To amend title 17, United States Code, with respect to royalty fees for webcasting, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JULY 26, 2002
Mr. INSLEE (for himself, Mr. NETHERCUTT, Mr. BOUCHER, Mr. MANZULLO, Mr. MORAN of Virginia, Mrs. MINK of Hawaii, Mr. LARSEN of Washington, Mr. KUCINICH, Mr. KLECZKA, Mr. LEACH, Ms. LOFGREN, Ms. BROWN of Florida, Mr. DICKS, and Mr. SMITH of Washington) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To amend title 17, United States Code, with respect to royalty fees for webcasting, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Internet Radio Fairness Act'.
SEC. 2. APPLICABILITY OF ROYALTY RATES TO SMALL BUSINESS CONCERNS.
(a) INAPPLICABILITY OF DETERMINATION OF JULY 8, 2002- The determination by the Librarian of Congress of rates and terms for the digital performance of sound recordings and ephemeral recordings of July 8, 2002, pursuant to section 112(e) and section 114(f)(2)(B) of title 17, United States Code, shall not apply to transmissions and ephemeral recordings by small entities.
(b) FUTURE PROCEEDINGS- The first determination of terms and rates of royalty payments that is made pursuant to section 114(f)(2)(B) of title 17, United States Code, after the enactment of this Act shall apply to transmissions (to which such section applies) that are made by small business concerns during the period beginning on the date of the enactment of the Digital Millennium Copyright Act and ending on the date provided for in that determination.
(c) VOLUNTARY NEGOTIATIONS- Nothing in this section shall affect the participation of small entities in voluntary negotiation proceedings under section 114(f)(2)(A) and (C)(i) of title 17, United States Code.
SEC. 3. STANDARD FOR DETERMINING RATES.
Section 114(f)(2)(B) of title 17, United States Code, is amended--
(1) by striking `Such rates and terms shall distinguish' and all that follows through `capital investment, cost, and risk.'; and
(2) by inserting after `as the parties may agree.' the following: `The copyright arbitration royalty panel shall establish rates and terms in accordance with the objectives set forth in section 801(b)(1).'.
SEC. 4. COSTS OF PROCEEDINGS; REGULATING FLEXIBILITY.
(a) COSTS OF PROCEEDINGS- Section 802(c) of title 17, United States Code, is amended--
(1) by inserting after `In ratemaking proceedings, the parties to the proceedings' the following: `, except for small entities that are parties to ratemaking proceedings under section 114(f)(2)(B),'; and
(2) by adding at the end the following: `In this subsection, the term `small entity' means a small business, small organization, or small governmental jurisdiction, as those terms are defined in section 601 of title 5.'.
(b) REGULATING FLEXIBILITY- Section 701(e) of title 17, United States Code, is amended by inserting before the period `and to the provisions of chapter 6 of title 5'.
SEC. 5. ELIMINATION OF CERTAIN STATUTORY LICENSES FOR EPHEMERAL RECORDINGS.
(a) ELIMINATION OF STATUTORY LICENSE- Section 112(a) of title 17, United States Code, is amended by adding at the end the following:
`(3) Notwithstanding the provisions of section 106 and paragraph (1) of this subsection, and except in the case of a motion picture or other audiovisual work, it is not an infringement of copyright for a transmitting organization entitled to transmit to the public a performance or display of a work, under a license, including a statutory license under section 114(f), or transfer of the copyright or for a transmitting organization that is a broadcast radio station licensed as such by the Federal Communications Commission and that makes a broadcast transmission of a sound recording in a digital format on a nonsubscription basis, to make one or more copies or phonorecords of that work, if--
`(A) each copy or phonorecord is retained and used solely by the transmitting organization that made it; and
`(B) each copy or phonorecord is used solely for the purpose of making the transmitting organization's own transmissions or for purposes of archival preservation or security.'.
(b) CONFORMING AMENDMENTS- Section 112(e) of title 17, United States Code, is amended--
(1) by striking in paragraph (1) `or under a statutory license in accordance with section 114(f)'; and
(2) by striking in paragraph (1)(B) `a statutory license in accordance with section 114(f) or'.
(c) EFFECTIVE DATE- The amendments made by subsection (a) take effect on January 1, 2003.
SEC. 6. DEFINITION.
In this Act, the term `small entity' means a small business, small organization, or small governmental jurisdiction, as those terms are defined in section 601 of title 5, United States Code.
Cory mentioned something about Radio Paradise Open Sourcing their software, but I can't find any other specifics about it...
P.S. -- Donate $5 or $10 to Radioparadise.com -- You'll Feel Better.
(Thanks, Cam -- and feel free to speak the truth about the Shrub -- some of us will be glad you did.)
Doc Searls has written a brilliant piece on the last month or so of developments surrounding the complex CARP and "Crazy Tech Legislation" (like the Berman Bill) Battles on Capitol Hill.
This thing is so loaded with important content, I know I'll be going over it in more detail over the course of the day, but I didn't want to hold up pointing it out to you:
Hollywood Steps Up Its Assault on the Net While Webcasting Death March Claims KPIG.
A really cool weblog added me to its blog roll recently. It made me feel good to be noticed by my allies-at-large:
Copyfight: Intellectual Property Law, Politics and Technology on the Net.
Here's a CNET editorial that helps explains why the clock is ticking for Independent Webcasters:
But the days of independent radio on the Net could be numbered, say some experts. A recently established royalty fee payable to record companies may price many small content providers out of the market, leaving some with no choice but to shut down.
But the days of independent radio on the Net could be numbered, say some experts. A recently established royalty fee payable to record companies may price many small content providers out of the market, leaving some with no choice but to shut down.
At issue are the royalties Webcasters have to pay for the right to stream songs. Royalties can be broken down into two categories: those paid for the song as it is written by the composer, and those paid for the song as it is interpreted by the recording artist. Terrestrial radio stations are mostly exempt from paying the latter, since they are considered promoters of new music. The Recording Industry Association of America, an organization representing several major record labels, contends that Net radio services are different--since there are ways for listeners to digitally reproduce the music--and should therefore pay the sound recording fees.
In 1998, Congress passed the Digital Millennium Copyright Act, giving record companies the right to collect royalties from Webcasters for the music they play. On June 20 of this year, the U.S. Copyright Office set the rates payable for Webcasters at 70 cents per song heard by 1,000 people. If this decision stands, the first royalties are due in November, and payment of royalties from past years (to 1998) is due in October. Although it is half the rate recommended by a government arbitration panel in February, Webcasters still claim that they will be driven out of business. This is despite the fact that Cary Sherman, president of the RIAA, recently stated that the rate still "does not reflect the fair market value of the music."
I've written and recorded a new song asking the Librarian of Congress (James H. Billington) and the Register of Copyrights (Marybeth Peters) to reconsider the recent CARP rulings regarding the rates and terms for webcasters (and to also please protect our rights against the detrimental effects of the Digital Millennium Copyright Act, since it does not contain adequate fair use provisions).
What does this all mean to the average person? Well, the average person will be greatly affected in the long run in terms of what kind of programming options will be made available in the future.
Less overhead in compulsory licensing fees means that more webcasters can afford to operate, and that means more channels and more selection from a larger, more diverse content base. It seems like this is a very important time in our history to have as many different voices being heard as possible.
All that I'm asking is for James and Marybeth to either reopen the CARP process afresh, or postpone it all together for another few years in order to enable webcasting services to flourish (much in the same way that cable television was allowed to develop in the 1980s).
So so sad when I listen to my radio
So sick and tired of what I'm watching on tv
There's so much more that I could see and learn and know about my future
James and Marybeth, can you help bring this to me?
I just want a chance to try it twice
I just want a chance to roll the dice
I just want a chance to get it right
I just want the right to stay and fight
I just want the right to search and find
I just want the right to my piece of mind
I just want the chance to know what's mine
I just want the chance to know
oh how I hope you're listening
because the clock is ticking
James and Marybeth, can you find a place for me?
James and Marybeth, can you help me to be free?
Newsweek's Steven Levy explains how the CARP rates will probably mean the end of independent webcasting:
Labels to Net Radio: Die Now
You’d think the record companies would love Internet tunes—instead they’re trying to kill them.
The record industry, with the help of Congress and the Copyright Office, may indeed make a shakeout inevitable. But I doubt that Jim Atkinson and his fellow independent Webcasters find the prospect of their extinction terribly desirable. Nor do the 77 million Americans who have at one time tuned in to Web radio and perhaps found something not featured on the lobotomized playlists of broadcast radio. If enough of those outraged listeners stream their objections to legislators, maybe Internet radio can be saved.
Radio stations appeal Internet royalty decision
Radio stations have asked a federal appeals court to rule that they do not have to pay musicians and recording companies when they play music on the Internet because they do not pay royalties for regular, over-the-air broadcasts.
In a motion filed late Monday, a group of radio stations said a federal court in Philadelphia and the U.S. Copyright Office had misinterpreted the law when they said that radio stations had to to pay musicians and recording companies when they "stream" their songs over the Internet.
Here's a summary of the Librarian's determination and the full text of the regulations adopted by the Librarian (http://www.copyright.gov/carp/webcasting_rates_final.html).
To subscribe to the U.S. Copyright Offices Newsletter, fill out the form at:
http://www.loc.gov/copyright/newsnet/subchange.html.
The Register's recommendation and the Librarian's order will be available to the public next week.
********************************************************** * CALENDAR *July 1: Expected effective date of Copyright Office fee changes (67 FR 38003)
July 1: Beginning of 60-day period when, in the absence of a license agreement, a party with a significant interest in establishing reasonable terms and rates for certain statutory licenses may file a petition to initiate a rate setting proceeding (67 FR 4472)
October 7: Initiation date should arbitration proceedings be necessary in adjustment of rates and terms for noncommercial educational broadcasting compulsory license
I just came a cross an unusually understandable CARP Fact Sheet over on the Future of Music Coalition website.
Here's a Christian Science Monitor piece by James Turner on the countdown to James H. Billington's pending decision on the CARP webcasting rates:
Why Internet radio may fade.
The Librarian of Congress is usually not considered a magnet for controversy.
But on June 20th, the eyes of Internet broadcasters and music industry insiders will focus on James H. Billington as he decides what royalties Internet radio stations will pay to record labels.
Depending on how the rates are set, some insiders believe the announcement could put some Web broadcasters out of business.
The issue of Internet-radio royalties was first raised when Congress passed the Digital Millennium Copyright Act (DMCA) in 1998. This law, intended to strengthen the copyright protections of digital media such as software and CDs, also required the recording industry to negotiate with Internet broadcasters to determine how much artists should be paid when their music is played on an Internet radio station.
The sides failed to reach an agreement, so Congress directed Mr. Billington to form a panel to set the rates.
The Librarian of Congress and Register of Copyrights aren't buying into the CARP Panel determinations. Check out my O'Reilly Weblog on the subject.
Brian Zisk explains the nuts and bolts of the RIAA's plan to make webcasting too expensive for anyone but the majors (and all in the name of record keeping and compulsory license fees).
CNET Expert Sound-Off - The law that could kill Webcasting
One proposed reporting requirement that particularly infuriates Webcasters is the need for each and every Webcaster to waste huge amounts of resources entering loads of data already known by the copyright holders. No one disputes the need to submit information uniquely identifying each song since reporting is needed to ensure that copyright holders are compensated when their music is Webcast. The DMCA itself requires that only three data fields be displayed to the listener: the title of the sound recording, the album title, and the name of the featured recording artist. These basic pieces of information also seem to satisfy songwriting organizations such as ASCAP and BMI. Now, let's take a look at what the copyright office wants Webcasters to submit for each and every song that they play--information that in most cases the RIAA's SoundExchange database already has or that is totally irrelevant to the reason for the reporting requirements, ostensibly to ensure that copyright owners receive reasonable notice of the use of their sound recordings. The copyright office's list or requirements reads as follows:
A) The name of the service
B) The channel of the program (AM/FM stations use station ID)
C) The type of program (archived/looped/live)
D) Date of transmission
E) Time of transmission
F) Time zone of origination of transmission
G) Numeric designation of the place of the sound recording within the program
H) Duration of transmission (to nearest second)
I) Sound-recording title
J) The ISRC code of the recording
K) The release year of the album per copyright notice, and in the case of compilation albums, the release year of the album and copyright date of the track
L) Featured recording artist
M) Retail album title
N) The recording label
O) The UPC code of the retail album
P) The catalog number
Q) The copyright owner information
R) The musical genre of the channel or program (station format)
This is absurd! All that's reasonably needed is enough information to uniquely identify the track, when it was played, and how many people were listening.
Here's a little update on the webcasting compulsory licensing fee situation going on over at the U.S. Copyright Office.
The latest word is that the U.S. Copyright Office is calling for a "public roundtable discussion" on May 10th (more on this later...):
Check out John Borland's story for ZD Net:
Feds want to thrash out Webcasting.
The CARP (Copyright Abritration Royalty Panel) webcasting rates have just been released today.
These proceedings set the compulsory licensing fee rates for webcasting.
I'm just taking a look at these myself so stay tuned...
Looks like college radio stations may be the next in line to be Digital Millennium Copyright Act victims.
See the Salon article, Why college radio fears the DMCA, by By Mark L. Shahinian.
Under the terms of the 1998 Digital Millennium Copyright Act (DMCA), radio stations around the country are supposed to pay thousands of dollars in annual fees to broadcast streaming audio over the Web. Managers of college and community stations say while their commercial counterparts may be able to pay the fees, their stations don't have the cash and will shut down their webcasts.
The 1998 law came up on Capitol Hill Thursday, as members of the House Subcommittee on Courts, the Internet and Intellectual Property held an oversight hearing on how temporary copies stored on computers should be counted when calculating copyright fees.
The hearing, said congressional staffers, was an early skirmish in a battle to defang the DMCA and transfer power from record companies back to broadcasters.
Webcasting was once touted as an example of the Internet's leveling power -- it allows small local stations to reach Internet users all over the world. And college stations, which run tight budgets and eclectic playlists, fit the webcast bill perfectly. But record companies don't like webcasting, with its potential for copying and distributing unlimited digital copies of songs.
Under long-standing U.S. copyright law, broadcasters pay a coalition of songwriters' groups to air music over the Internet and the airwaves. But until the DMCA, performers and record companies did not have the rights to royalties when stations played their music. As part of the 1998 law, Congress allowed performers and record companies to start collecting fees on songs sent over the web, said Joel Willer, a mass communications professor at the University of Louisiana at Monroe. There are still no performer fees for regular airwave broadcasts.
But until now, the law has yet to be fully enforced. If it is, college radio on the Web will be in trouble.
I've written an article for CNET that details the current battle going on over in the U.S. Copyright Office over compulsory licenses for webcasts: Hot debate over the future of Webcasting.
Here are a few excerpts:
"After years of big-money litigation, bankruptcy, and polemics, Webcasters, artists, and labels are finally sitting down with the U.S. Copyright Office to hammer out the licenses under which music will be distributed on the Internet. But Webcasters and artists claim that the Recording Industry Association of America (RIAA), with its deep pockets and high-placed lobbyists, has hijacked the process and is setting up a world where the music industry fox guards the Internet henhouse..."
"The RIAA's petition proposed that SoundExchange would be able to deduct administrative costs from royalties--prior to paying them out to artists--without setting any limitations on these costs. Artists would be required to foot the bill for any independent audits, and SoundExchange would be allowed to absorb any revenue from unclaimed royalties after only three years, despite the fact that the process for copyright holders claiming such royalties hasn't even been decided yet. "
The gripes above are based on the RIAA's petition that it filed with the U.S. Copyright Office and the memorandum that goes with it.
