Wednesday, April 26, 2006


There is a hearing today before the Senate Judiciary Committee on a just introduced bill, S. 2644, called the PERFORM ACT, short for the Platform Equality and Remedies for Rights Holders in Music Act of 2006. Here is a link to the witnesses. There is no text of the bill in the Congressional Record, but hopefully copies will be available through the Committee. The Hollywood Reporter has a story about the bill and hearing in today's issue, at this link.

Without seeing the bill, I can't figure out how it deals with the issue, but the issue itself is easy enough to describe: satellite radio companies like Sirius and XM have marketed devices (like the S-50) that permit consumers to record, store, and archive digital radio programming. In archiving the programming, there are file dividers that permit consumers to separate out parts of the programming, like individual songs. These songs may then be retained and accessed, as on an iPod. Sirius reached a deal on its product, but XM has not. The legislation appears to be an effort to encourage XM to see the error in its ways.

Warner Music Group's charismatic, articulate, and visionary chairman/CEO is quoted in written testimony for today's hearing as using the famous walking, swimming, and quacking duck metaphor for what he regards as a download service. That may be a stretch, but the product's file separation ability is a very active step in encouraging consumers to make copies that would interfere with true downloads through iTunes. One could of course draft legislation limited to music and still permit other uses, but we will have to wait to see the actual bill to make any judgments about the scope of the legislation.


Anonymous said...

The bill is S. 2644, and the language is available from the Congressional Record (the bill should appear in Thomas in a few days). Among its provisions is one that would condition the statutory license for webcasting on the use of DRM-restricted formats, which would effectively would ban MP3 and Ogg streaming (discussed in more detail here).

William Patry said...

Thanks, Fred. I had gone through Thomas and came up empty-handed. I should point out that the link I gave to the hearing list also has an index with a click-through to witnesses' statements. The link to the statements may also be copied here:

William Patry said...

Brooks Boliek has this column in the May 2d Hollywood Reporter on the Senate hearing, but more importantly about whether one should consider the copying donw off of the devices in question a download or not. His views support Edgar Bronfman's, so I think it important to reproduce them, editing out extraneous matter:

"Don't take it personal but I'm likin' my Inno

By Brooks Boliek

WASHINGTON -- I'm going to a hearing at the Capitol. ...
To be the truly stylin' modern American male, I need one last accouterment to set the whole thing off.

I need a personal, digital music player. And I have one. Boy, do I have one.

I have XM's newest device, the Pioneer Inno. Not only is it one cool little toy, but it is the subject of the hearing. The little device, about the size of a cigarette pack and half as thick, marks the latest front in the battle over digital music delivery.

At the hearing, I was the most popular guy in the room,... because I was the guy with the Inno. It seemed I was only unpopular with the XM folks who didn't like what I'd written that morning.

Everyone wanted to know what the device was like. The usually nice folks at XM had given me the Inno to test two days before the hearing. Since I'd had it only a short while, I'd only been able to store a couple hundred songs on it -- all of them recorded out of the ether from XM's signal. XM argues that my recordings aren't downloads.

Unlike downloads to an iPod or other portable player, there are limits. I can't transfer my XM feeds to another device, burn them onto a CD or upload them on the Internet. The recordings die if I cancel my subscription. I can import other MP3 files onto the machine, but it doesn't work the other way. The signal cuts out sometimes, and sometimes there's static.

There are also DJs. I'm not sure that matters. In fact, I consider the DJs a plus. Without them I wouldn't have been introduced to the Brooklyn Cowboys.

Whatever XM wants to call the recordings, they still feel like downloads to me. XM and the record companies are fighting over just that. When is a digital recording a download, and when is it a performance?

XM pays the copyright holders millions for the rights to broadcast the music. The record companies contend that XM's rights end there. The record companies argue that for me to do what-XM-doesn't-call-a-download-but-feels-like-a-download-to-me, XM should pay the copyright holder another fee. ...

XM says that's hogwash. They claim that the [Inno] is just a digital version of recording off the FM radio, something that is protected by the law. From my brief time with the Inno, I know it's much more than that.

It's better than the old days when I stayed up past midnight in Birmingham so I could record Robin Trower off Captain Jack's radio show. ... I can also manipulate [the Inno] into playlists, and search ... by artist, category, channel or recording session. Best of all, I can take my [the Inno] with me.

If I were deciding what personal, portable digital player I was going to buy, which I am, the Inno is definitely in the running. Mostly because I like XM's service, but partly because I'm not paying 99 cents a song. Given the limits of [the Inno], I don't think I should pay 99 cents, either. ..."

Anonymous said...

"satellite radio companies like Sirius and XM have marketed devices (like the S-50) that permit consumers to record, store, and archive digital radio programming."

How is this ANY different than being able to record the audio to a tape recorder?

People have been recording the radio for decades. Why are they pretending like this is a new concep/technology.

Perhaps if they outlawed all radio stations, that would solve the problem of being able to record the content.

William Patry said...

The critical difference that has been perceived by those who wish to license the use is that in creating the satellite radio streams, file markers are created and for the purpose of being able to easily disaggregate files, store and archive them. While it is true that in analog radio there were DJs who would pre-announce that he or she was going to be playing in its entirety a new album "so get your tape decks ready," that was not a common event, and moreover could not easily be shared with thousands of others. Sometimes it is not that there is a fundamental difference in the nature of copying, but rather its vast scale that draws attention. The Xerox 914 was such an example. There were many machines for copying prior to its introduction, but the ease of use and its volume dwarfed anything that came before it.

Anonymous said...

I fully agree with XM. If something is transmitted to you and you can listen to it, there should be no reason why you can't record it. I thought that the record companies were initially against "digital" recordings because the quality would not deteriorate from copy to copy. XM is not CD quality to begin with and the music cannot be digitally transferred to other devices and will expire if the subscription expires. The music can obviously be re-digitized, and that is why the RIAA would like to outlaw D/A converters.

If it was up to the RIAA/MPAA, you would not be able to record anything at all. You would be in a PPV world. Even if you were able to rewind to watch something over, you'd pay by the second.

Look business has only one bottom line--make money. Anything that is done with content they produce is potentially a money-making activity for them. If they could get radio stations to pay them $1 for each song they play, or maybe $1 for every listener that listens, they would do it.

These people don't care about what their customers want, and have no morals whatsoever. They just want to make as much money as possible.

The only way to teach them a lesson is to not buy their products.