Congress To Address Digital Music

camusflage writes: "MSNBC has an article that says Representatives Rick Boucher and Chris Cannon are set to introduce legislation that will attempt to control how copyright law treats digital music, and how royalties for it are paid. Among the things the legislation is said to address is what constitutes archival and incidental copying, in-store samples, and 'extending the mechanical compulsory license to Internet file-swapping.' The article goes on to say that the RIAA previously indicated openness to the licensing, while publishers and songwriters oppose it." See also ZDNet or Reuters (this link is the best summary of the bill). And if you've got the stomach to wade through copyright law, read the bill itself. Keep in mind that introducing a bill is a long long way from making any changes in the law, and even this bill doesn't necessarily solve all of the current problems with copyright law.

Comments

Re:Sort of off topic, but indicative of Congress

[nyet]

Fine. But you still haven't addressed why we need to LEGISLATE this particular topic. Breaking marriage vows is immoral, and wrong. But why a law? To what end? Do we really want to see more of this circus polluting our airwaves all week? I am sick of tired of pundit after pundit droning endlessly about Levy, Lewinsky et. al. It is ALL we see on the evening news because it tittilates the masses. If you have traveled as much as you say you have, you know that the U.S. is unique in its obsession with the sex lives of its politicians. Sure, the U.K. tabloids may drone on and on about the royal family's antics, but rarely does it monopolize EVERY single major news outlet for months and months on end.

People sleep around. Its wrong. If you think somebody who does it isn't fit to hold office, fine. Don't vote for them. But don't subject ME to the month long feeding frenzy that invariably involves these scandals. Politicians do MUCH worse on a daily basis, and we NEVER hear about it because we are too busy obsessing about some young thing in tight pants.

Re:Sort of off topic, but indicative of Congress

[bryan1945]

And obviously, you just don't want your wife/sig-other/boyfriend finding out what you are doing behind his/her back.

Re:HUH?

[nyet]

There is an enormous difference between thinking something is WRONG and thinking there needs to be legislation to make it illegal. This is the point I was making, not that breaking wedding vows was "ok"

Re:Sort of off topic, but indicative of Congress

[bryan1945]

The reason I think that this needs to be legislated is that in the rest of the world, you do this, you are fried. (In the commercial world, you sleep with your assistant, you're fired. In the academic world, you sleep with a student, you're fired.) In Congress, you sleep with a pony, you get a pay raise! (Obvious exageration). My problem is that government officials are not held to the same standard that regular business people are, and therefore we need a law to make them conform to society's norms.

For me, it's not about pics and scandals, it's about responsibility.ff

Re:Not nearly far enough

[GemFire]

This bill does not even start on what is required to bring copyright law to a level back in line with the requirements of the Constitution.

What we need is something equivalent to the Statute of Anne (England 1710) where copyright for authors originated and the Public Domain was created. Prior to that, publishers owned all published material (sound familiar?) and authors, if paid at all, received only a pittance.

Ever since then, publishers have been working to regain their power and now that they have it, we need to yank it out from under their feet, not ply them with half-measures that will probably not even make it out of the House without Industry approval.

Politicians who tell you that changes need to come gradually are trying to maintain the status quo. It is the gradual changes that got us where we are today, an extension here, an addition to the rights included there, need another extension, oops - now we need to cover music, time for another extension and, while we're all here, lets make it against the law to break any encryption we might like to put on our digital offerings.

It wasn't a gradual change that created the United States - nor was it gradual when the old, very corrupt, spoils system of government was replaced with the civil service. Nor when the government instituted environmental restrictions (after Love Canal.)

Gradual changes are what they do when they want to ease into something that ISN'T good for the people overall - just to see if anybody notices. If they don't, another little change is made, and another after that.

When government actually gets off its tail and does something good for the nation, they do it quickly (so that the people will re-elect them come the next election.) If the people are so incensed that the politicians have no doubt of their collective anger, change happens nearly overnight.

We need to all write to our Congressmen - tell them the Boucher/Cannon bill is a start, but it isn't enough - not even close.

Contradictions

[rkent]

Hm. Both the ZDNet and Reuters articles contradict the MSNBC one on at least one important points: MSNBC says that the RIAA is "open to the idea," but both other sources say that the RIAA "bashed" the proposal or "was sure to oppose [it]."

Personally, I can't see why they'd like it, except that it's not technically compulsory license. But the RIAA never seemed willing to settle for the "not worst" case before, they usually go whole hog. What's MSNBC smoking?

Re:Contradictions

[Sawbones]

Hm. Both the ZDNet and Reuters articles contradict the MSNBC one on at least one important points: MSNBC says that the RIAA is "open to the idea," but both other sources say that the RIAA "bashed" the proposal or "was sure to oppose [it]."

I think the idea they're open to is this:

This would mean there would be one royalty pool, eliminating the need for a Web-based service to negotiate with individual artists, labels, music publishers and songwriters.

It's hard to say why the songwriters would be opposed to it, but it's likely the RIAA was all for getting money and isn't so keen on being forced to license to everyone if they choose to license to one online service.

Not nearly far enough

[bnenning]

It looks like the proposed bill would exempt specific online music services from more odious portions of copyright law. That may be a good thing, but it does nothing to solve the fundamental problems of laws like the DMCA which allow the content industry to remove the customer's rights using technology, while criminalizing the customer's attempt to use technology to restore those rights.

Re:Not nearly far enough

[Anonymous Coward]

it does nothing to solve the fundamental problems of laws like the DMCA

Nor does it attempt to solve the fundamental problems of world hunger or erectile dysfunction. But so what? The law is aimed at furthering online music, which has nothing to do with the DMCA. Even if the DMCA were abolished completely, Napster & co. would still be in trouble for trafficking in music without the permission of the copyright holder.

The DMCA is pretty much orthogonal to this issue.

Re:Not nearly far enough

[Rimbo]

"The law is aimed at furthering online music, which has nothing to do with the DMCA."

Not true. Actually, the DMCA was approved specifically to give the RIAA companies certain protections to encourage them to go on-line with their content. Instead, they used it to go after current on-line providers. Inside.com had an article several months back covering a hearing where Orrin Hatch took the major labels to task for the way they were using the legislation.

Slashdot covered it here:
http://slashdot.org/articles/00/07/12/1829246.sh tm l

Re:Not nearly far enough

[Rimbo]

"This is true, but history has shown that it was little more than a pretext (one of many) used by legislators to pass the DMCA."

I think a more accurate characterization is that it was the pretext the RIAA used to sell the DMCA to the legislators, but it's the same result.

It's hard to tell how the RIAA will react

[Sawbones]

The Reuters write up mentions that should the major labels choose to not license their music at all, or do an entirely in house online distribution, then no compulsory licensing is required. I doubt they're too keen on being forced to license to the Napster(s) the fought so hard against, so the question remains will it kill any of the (admittedly vaporous) online services they've been working on or simply force them to do only in house distribution. Neither sounds particularly good since I don't make a habit of knowing which house publishes my favorite music. Still it'll be interesting to see how they try and spin either decision.

I understood it differently

[interiot]

According to an interview with a real lawyer (see shrinkwrap question), rights given to use by copyright law are simply the default rights. Even without DMCA or technological measures, it was my understanding that companies could simply say "by opening this package, you agree to...", and procede to place much stricter restrictions on you than copyright law does.

So it was my understanding that fair use can go out the window at any time, regardless of DMCA. Am I incorrect in my understanding?

Re:I understood it differently

[Fatal0E]

So it was my understanding that fair use can go out the window at any time, regardless of DMCA. Am I incorrect in my understanding?

You are incorrect. If they put a shrink wrap license on a CD saying you're not even allowed to listen to it it's the UCITA that gives shrink wrap (and click-through) licences their teeth, not the DMCA or any copyright law already on the books.

Re:I understood it differently

[rgmoore]

Yes, I think that you did misunderstand. The "first sale" doctrine says that a seller may not arbitrarily remove your rights to something that you've purchased. The specific case in which it was first mentioned was for a book that claimed to prevent purchasers from re-selling it for below a set price. The Supreme Court ruled that this was not allowable; once the buyer has paid for the book it is his to do with as he pleases. (Note that this refers to the physical book itself, and not the words therein, which are protected under copyright.)

Similarly there are some rights that a seller may not require you to waive as a condition of purchasing their product. In most states, for instance, there is an implied warrant of merchantability (i.e. that selling a product is a promise that it is actually fit for sale) that legally can't be signed away. Any contract or license that purports to do so is just trying to convince users not to try suing, and that portion of the license would be ruled invalid under the law if push came to shove.

IIRC, there is an implied licence with any software that the user has the right to do with it any steps required to use it on his computer, like copying it onto his hard-drive, modifying configuration files that come with the program, etc. AFAIK, though, the right of software companies to further constrain users is a legal gray area without enough case law to make it clear what is and isn't permissible. That's what UCITA is/was about. The software companies are unsure that their licenses would actually stand up in court, so they're trying to change the law to explicitly legalize their favorite licensing terms. This suggests that the current legal status of their licenses is dubious and requires explicit validation.

Re:I understood it differently

[interiot]

Even without UCITA, producers can put contracts on the outside of the shrink wrap, and indicate that breaking the shrink-wrap indicates agreement to be bound by the contract, no?

Re:I understood it differently

[interiot]

Yet NDAs are possible despite the existence of the first sale doctrine...?

Re:I understood it differently

[rgmoore]

I don't think that NDAs are generally part of a sales agreement. They're something that's required of people who are given privileged information by a manufacturer as part of an agreement to work with that manufacturer. No sale is involved. AFAIK, though, no reverse-engineering clauses as part of a sales contract have been rejected for physical goods, but their legality for software hasn't been tested.

Re:Who cares?

[Rimbo]

Or download free stuff from MP3.com.

It's not like the bands the RIAA push onto us are significantly better than most of the better artists on MP3.com, anyway.

Braindead...

[Saeger]

Under the bill, if a record company made its music available for download only through a service that it wholly owned -- for example, if AOL Time Warner's Warner Music label sold songs over AOL -- it would not be required to license songs to anyone else. But if a label entered a joint venture or partnership deal and licensed its music to that affiliated service, all unaffiliated services would have the right to license the same music under similar terms and conditions.

So that means if Spicoli has a pizza delivered to his classroom, he can either eat it all by himself, or, if he shares it with just one other person, the teacher will make him give everyone a slice? Tough choice.

...Napster would prefer an even stronger proposal to create a compulsory license that would force record labels to let any company sell any song at a price determined by the U.S. Copyright Office.

Smart. Real smart.

A good point, RIAA's lost already

[WillSeattle]

Or download free stuff from MP3.com.

It's not like the bands the RIAA push onto us are significantly better than most of the better artists on MP3.com, anyway.

This raises a very good point. If RIAA's music control fails, and the consumers route around the damage, buying CDs in the Bahamas for artists who are willing to list MP3 songs so we can try them out, it really doesn't matter what Congress tries to do.

In the end, the market has no soul, no love for RIAA and the corporate music scene. If they increase costs and try to closed source their music, open source music alternatives will become more attractive. If I'm into Techno and they try to charge me USD$20 for a CD of 10 songs, when I can get decent (if not better) quality Techno for USD$0 for tryout and USD$0 for one or two sample MP3 songs (full length), then I'll send them USD$10 for the 10 song CD. Cost to band - USD$7 for production, shipping, handling, MP3.com split. Profit to band - USD$3. Profit under RIAA USD$20 CD to band is USD$0.20 at most. If you're a techno band and you can sell 2 million CDs with USD$3 profit or choose to sell 1 million CDs via RIAA groups for USD$0.20 profit, which will you choose?

Right, you choose open source, cause you get more fans, more net dollars to band, and you also get the charts of where your CDs sell the most to plan tours with and can then email those fans and crash at their places.

The market wins, open source wins, RIAA loses.

Re:A good point, RIAA's lost already

[Rimbo]

You could just say, "Published music notation and tablatures."

Music's been "open source" for centuries, in that sense. Techno doesn't really go onto sheet music, but it's really on the borderline between music and random mechanical noise anyhow.

Re:A good point, RIAA's lost already

[Rimbo]

I actually happen to like techno. Although it's an exaggeration to say that it's not really music, it's easier to type than the real explanation.

Music is essentialy education. Listening to music trains you to hear things a certain way. As children, classical music seems boring and dull, because we don't yet have the knowledge of music to be able to understand what we're hearing, so it just sounds like a bunch of silly strings; but Barney and Sesame Street sound about right. As teenagers, we expand into popular music, and then into Jazz and alternative styles when we hit college. If we keep our minds open, eventually things like Schostakovich make sense to us. The music of our youth, the pop and Barney songs, now sound boring because they teach us nothing new.

My experience listening to techno is that although I hear new things, they are never developed. At all. Listening to classical music, I hear an idea expressed, and then that idea is developed and expanded upon. Techno is like someone just shouting a clever slogan over and over.

What's more is that the human element has been removed from most techno music. Outside of knob-twisting, there is very little expression or emotion. Even the repetition and electronics in Hip-Hop at least have a very strong human element in the vocalist's performance.

I also recognize that this repetition and mechanistic styling is a deliberate choice: If you're going to dance to it, the beat must be steady and constant. But latin dance forms maintain the steady beat while actually developing their themes; why can't electronic music do the same?

So this isn't an "I hate techno" thought. I love listening to the new sounds. But my mind never gets involved. When I'm writing code or paying my bills, it's fine. It's functional. But it is not art.

Wendy Carlos has an interview on her web page (and if you claim to be an electronic music lover and don't know who Wendy Carlos is, LEARN! -- www.wendycarlos.com) where she expresses a very similar sentiment, and does a good job of expressing this as well.

Music is ultimately a human endeavor. If you take the human out of it, it's not really music any more. Sure, it's creative, but that doesn't make it music.

I should also mention that there are exceptions. B.T., to name one example, does a lot to add a human element to his music, and his live performances in particular are stunning. But the overwhelming majority of electronic music today has not progressed in any significant intellectual or technological way in ten years.

So it's not an "I hate techno" thing. I like McDonald's, but face it -- the stuff they serve is crap, and everyone knows it. I like techno, but I'm not going to fool myself into believing it's some kind of high art form.

Re:A good point, RIAA's lost already

[characterZer0]

Too bad it doesn't work that way. Sure, discerning people like yourself may look at the options, and choose the best music at the best price. But your average music buyer purchases what the media and the RIAA says he or she should purchase. You actually think someone bought the latest [insert boy-band, rap artist, or navel-exposing silicone female with quasi-decent voice here] CD because he listened to different music and decided what songs were best?

Re:Who cares?

[Tackhead]

> If you want free music w/o the worry of copyrights move to Tailand / Singapore.

Or just download it from the comfort of your living room today.

Now, if you want to post copyrighted music without worry, then you might have to move...

The fundamental problem is that even if you have no interest in violating copyrights, but just want to talk about how someone might go about copy music, even for their own use, you might still want to consider moving... but that's another /. article.

At least it sounds like Boucher "gets it", and isn't going to completely kowtow to the RIAA party line. Props to him here. Madder props in reserve if he gets it passed in any form that still annoys RIAA.

We'll reserve our maddest props (and campaign donations) for when he introduces legislation to repeal the DMCA. But let's take it one step at a time.

just had an idea

[unformed]

isn't it a bit obvious there's a communication problem when the RIAA and the artists they represent vehemently oppose each others' beliefs?

should be a sign...

Re:just had an idea

[unformed]

If the populace could be convinced to buy their CDs from other outlets (direct, or online) and was not deluged with target marketed, formulated-to-sell crap (Brittney, Boy Bands, and Limp Bizket Sound-Alikes), there would be hope.

You're right, and that's what they're worried about. Napster made music available through other means. (Some) artists dislike Napster for good reason, because they're not making any money out of it. However, many well-known artists (ie: Courtney Love, Rage Against The Machine, etc) have no problem with Napster/music sharing, as well as a number of local bands. However, for them the issue is can they get compensated for their work. The RIAA understands that the internet is decentralized, low-cost, and that if online music distribution (as a profitable business) was to become a reality, there SOL; and that's why the RIAA is ferociously against reselling off the internet.

Though I'm sure this is all pointless since I'm pretty much preaching to the choir...

Same old same old

[sconeu]

Because Boucher is involved, there may be some hope, but the RIAA will buy enough congresscritters to make this bill take away what few fair use rights we have left.

When?

[Guppy06]

Is this before or after music trading is discussed before the House Un-American Activities Committee?

General question re Copyright

[AxelBoldt]

I have a general question: is the Copyright attached to the copy itself, or to the work, i.e. all copies?

In other words, would it be possible for me to write something, make a xerox, and then transfer the copyright of one copy to you, but keep the copyright of the other copy?

Re:General question re Copyright

[AxelBoldt]

Could I circumvent this "Copyright for all copies at once" by slightly modifying the copy before providing it to the publisher and selling its copyright? I still keep the original's copyright, no?

Re:Sort of off topic, but indicative of Congress

[bryan1945]

Uh, no, I would hesitate forever, 'cause I'm married and, at least to me, that actually means something. Unlike you and your booty-loving friends in Congress.

It used to be that a vow actually meant something.

Oh, one more thing.

[Rimbo]

Oh, one more thing.

"Have you any clue about the creative process involved in making techno music, or are you speaking purely from a biased-listener standpoint?"

You might want to listen to "Journey to Rivendell" or "Hyperactif" on my mp3.com page if you really want an answer to that question.

Pissed OFF

[banshee2000]

I'm really getting pissed off now!

I have paid for my music in several different format already and I'll be damned if I'm going to opt for another form of tax on music like this bill proposes.

• First of all I paid for music on singles ... does anyone remember 45s?
• Then I paid for the music on albums.
• Then I paid for it on cassettes (and even some on 8-tracks).
• Then I paid for the music on cd (that which is available on cd)
• and NOW they want me to pay a monthly user fee to download music from the Internet? Say $5. - $10./month to start???

Under the new copyright bill (MOCA) they offer EXCLUSIVE ORGANIZATIONS licenses? EXCUSE ALL HELL OUT OF ME but how is that "fair use" to the consumer? Sure it will start out as a minimal fee to pay once again for the music (surtaxes), but how long until these exclusive organizations start crying costs and steadily raise the subscription license fees ... make no mistake ... that's what's being proposed.

In addition. I have been collecting music sine the early 1960s and this proposed bill wants me to PROVE I own the music? They better be ready to get warrants to enter my home and get the proof because there's no way I kept 40+ years of receipts!

I think it's time to stop shafting consumers left right and center and start repealing garbage laws like the DMCA. MOCA should not even get off the ground .. it's that bogus. I own my music, and a great deal of it on several formats. I will do what I please with it because I have already paid enough damn royalties on it.

Next step ... watch the corporations start releasing music box sets for d/l including songs never previously released. What hogwash!

I pay for my computer, I pay for my modem, I pay for an internet hookup and I also pay for a IRC network service I chose to run. Now the gov't in all its wisdom expect me to PAY for online music to listen to or download??? DREAM ON dear politicians ... it isn't going to happen.

...because judgments are based on precedents

[Perianwyr Stormcrow]

Law cases refer specifically to titles and sections of law- if the titles and sections referred to are removed, the perspective in which the decision was made is lost.

Thus, it makes much more sense to retract the sections involved explicitly rather than removing them completely. Think of it in terms of backward compatibility. Current laws must be compatible with older decisions made under the same code, because what those decisions were originally based on is what case review is about.

HUH?

[nyet]

Are you saying such a bill is NEEDED? What you do in your bedroom is none of my goddamn business. You going to make cheating at Max Payne illegal too? How about lying? Should that be illegal? How many more freedoms are you willing to deny Americans in the name of your Puritanical psychosis?

It is people like you who make it impossible for the media to carry a meaningful story other than
"CHANDRA LEVY: STILL MISSING" and "CONDIT 2001: PENIS WATCH".

I could give a RATS ass about any of that crap, and yet that is ALL we see on the evening news, day in and day out, while more important issues get completely ignored. Do you read? Do you travel? Do you get outside? Do you speak other languages? Have you visited any country outside your own? Any STATE outside your own?

You do realize that mistresses and concubines have existed for thousands (probably tens of thousands) of years, and yet we Americans seem to be the only ones who bitch about it constantly. You are in dire need of a reality check. Look outside your window, buddy. The world is much larger than the tiny town you grew up in, you poor, deluded, sad, ignorant little man.

Re:No vision.

[GigsVT]

I think it's an intelligence thing. One needs to know when to design something ad hoc and when to design a whole new theoritical model.

Now, name one extremely intelligent person you know that has the social skills (read: manipulation via speech skills) to get into policial office. I can't think of one.

I really wonder about the fate of free webcasting.

[Perianwyr Stormcrow]

Free webcasting is probably the number one thing that the so-called "digital music revolution" (remember, friends- when someone says they're revolutionary, just think of them as a wheel spinning round and round in place, and you often have the right picture) has brought to me which I truly value.

This, more than anything else, is what music creators and marketers of all kinds should be standing behind, not trying to tax to death. Streamed mp3 has resulted in so many CD purchases that I've made, I can hardly count them. I've had my tastes opened to many new kinds of music...

But wait. I've spent most of that money on small-labeled music... such as Metropolis, Gashed, and the like.

I can't help liking the music I like. I can't help it that it's small-market. And I can't help it that until now I wouldn't have even discovered any of the acts which I now dote on without free, user-created webcasting. I honestly could care less what happens to large broadcasters- let them advertise and tax and fight forever. All of the webcasts I listen to, however, are generally money *losing* operations- they take no advertising and take no revenues whatsoever. They exist simply by enthusiasts for whoever wishes to hear their sound.

Do the larger webcasters consider the small ones to be competition? We shall see. I am most certainly wary of trusting any large corporation or entity until said groups make it certain that the interests of small webcasters are wedded to their agendas.

The sad thing is...

[IronChef]

Keep in mind that introducing a bill is a long long way from making any changes in the law, and even this bill doesn't necessarily solve all of the current problems with copyright law.

As soon as I read about ANY new legislation my first thought is, "god, how are they going to screw it up now?" I have lost so much confidence in the government that I really can't imagine a new law making anything BETTER. I just keep my eye on court cases, and hope things get struck down that way.

Theoretically, I suppose it is possible to fix a problem through legislation. But I'm a cynic and I have a hard time believing it!

Re:Who cares?

[Chris Johnson]

mp3.com _is_ RIAA now. They were bought up by Vivendi/Universal. You're not going to be finding 'indie' stuff there for much longer. They have already chased off the majority of the really successful acts (for instance, do a little googling to find out what they did to 'Analog Pussy'), and you should see their contract terms: _long_ ago they borrowed enough lawyers from Vivendi to make an Artist Agreement that can turn more ugly than you could believe in a matter of days.

Try Ampcast.com or besonic.com if you want non-RIAA. mp3.com is totally RIAA right down to the lawyers and the deal they offer artists, now. Did you know that if you earn a lot of money with them, they won't pay you?

Mechanical licensing

[aozilla]

Wait a second... Mechanical licensing refers to the (already enacted) compulsory license for the act of making a copy of the song, not the specific instance of the song. In other words, if I make a cover of "Baby One More Time", I can sell CDs of my cover by paying (probably Britney, through the Harry Fox Agency) under a compulsory mechanical license. I also believe this is what record companies pay to the artist. Generally the artist owns the rights to the song, and the record company owns the rights to the recording.

Mechanical licensing does not give you a compulsory license to copy an actual recording. This is most likely why the RIAA wants this, and the artists do not. It allows the owner of the recording to distribute over the internet without negotiating a license with the owner of the song.