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

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?

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.

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

[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.

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.

When?

[Guppy06]

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

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.