Repeat PERFORMance

The 110th Congress's first copyright initiatives came on January 11th, with two bills introduced in the Senate. S. 258, introduced by Senator Akaka and 20 other Senators is a bill "to clarify provisions relating to statutory copyright licenses for satellite carriers." The word "clarify" in such bills rarely carries with it its ordinary meaning of making an ambiguous provision clear, but rather has historically meant lowering royalty rates.

The other bill, S. 256, introduced by Senators Feinstein, Alexander, Biden, and Graham, is a repeat in an amended form of last Congress's PERFORM Act ("Platform Equality and Remedies for Rights-Holders in Music"). Interestingly, Senate Judiciary chair Patrick Leahy is not listed as a co-sponsor. Fred von Lohmann had a blog posting on the bill yesterday here and there have been many news stories about it. Senator Feinstein's introductory statement and a copy of the bill were published in the Congressional Record, pages S446-448, available through the Library of Congress's online Thomas service, www.loc.gov. (I tried creating a link, but links created through Thomas searches are apparently time limited),

This time, like last time, the bill goes beyond addressing specific issues raised by devices such as Sirius's Inno player, and ventures more generally into general DRM requirements, as well as rate setting. As Senator Feinstein stated, under the bill: "All companies covered by the government license created in section 114 of title 17 would be required to pay 'fair market value' for the use of music libraries rather than having different rate standards apply based on what medium is being used to transmit the music," even though I think some of these issues are before the Copyright Royalty Board.

Senator Feinstein also remarked: "The bill would also establish content protection. All companies would be required to use reasonably available, technologically feasible, and economically reasonable means to prevent music theft. " She noted "some have concerns that applying content protection to all providers is unfair. They argue that if there is no connection between the distributor of the music and the technology provider that allows for copying an manipulating of performances then they should not be required to protect the music that they broadcast. I general, I do not agree." She added though that under the bill one can automatically record particular stations at particular times and "then use the[] recording device to move these programs so that each program of the same genre would be back to back," but that one cannot target particular performers.

At the same time, Senator John Sununu's office is reported to have announced that he is working on a bill to ban the FCC from passing regulations mandating the broadcast flag. There also is a WIPO meeting on the proposed broadcast treaty. We are off to a fast start, and it is all pointing in the same direction.