Tuesday, June 06, 2006

Bye-bye Fair-use? It's not just section 115 you have to worry about...

Ahh, lobbyists. One individual commented that the proposed bill in the article above is coming from Howard Berman. There is nothing to indicate that he is about to propose such a bill on his official house.gov web page, but he does make some comments on a similar subject (Section 114, as a matter of fact) on May 11th in the House.

It's your typical "The music industry is in trouble, piracy is killing them, let's make it harder for people to legally copy music." speech, but coming from a congressperson, it's disquieting.

Among other things, he says:

People are consuming more music than ever. Yet the music industry is in crisis. The total value for the music industry at retail declined from $14.5 billion in 1999 to $12.1 billion in 2004. In March 2005 alone, 243 million songs were downloaded from illicit peer-to-peer services (NPD Musicwatch).

Okay, so now he's sufficiently framed peer-to-peer services (illicit ones...that would be *all* of them that didn't charge money or track every transfer, if fair-use is not maintained) as the culprit...

Our Founding Fathers recognized that in order for America to be at the forefront of creativity they must support and incentivize musicians to pursue their art by providing necessary protection to these original works to produce a return on investment in those works.

Really? Is *that* what copyright is all about...controlling the legal right to copy a given work? Now I understand.

...we must remember that copyright owners cannot negotiate a fair market price for their works in the marketplace for digital radio, and cannot withhold access to their works as leverage in the marketplace to negotiate for necessary content protection on digital radio.

Umm, what? They can't? They seem to be able to do it with analog radio, and people have been taping recordings from AM and FM stations for years and years. Is he trying to say that "Copyright Owners" (the RIAA/MPAA and its members, I suppose) have a poor business model, or that changing an analog signal to digital somehow makes things horrible for them?

While I am encouraged by the many options, I am concerned that certain features of the new devices turn radio, or performance services, into distribution services. This increased functionality may cause the unintended consequence of bypassing the typical marketplace distribution channels by allowing the consumer to turn broadcasts into downloads. This utility enables consumers to create an unlicensed music library without paying the artist.

Now here's a tiny blip of truth working its way through to the surface. The interested parties Rep. Berman is speaking for are concerned that any digital distribution services they may offer will be preempted by people downloading everything digitally.

The problem with trying to make this argument with a straight face begins with audio cassette tapes, carries forward to Video Cassettes (Sony Betamax, anyone), and continues with recordable CD and DVD media. I suppose you could take it back father than that, if you count performance art, but I think the currently discussed issue is pre-recorded works.

If audio tape was fine, recordable CD's were fine, videotape was fine, and recordable DVD was fine, why the apparent change of heart? What has fundamentally changed to make a new broadcast medium so objectionable, when its predecessors were not?

The bill also requires that licensees use reasonably available technology to prevent copying of the transmission to prevent against third party ``stream-ripping''--the use of tools created by third parties that captures the stream, and then disaggregates the songs for storage in a manner that substitutes for a sale. However, any content protection system must allow for reasonable recording. Most notably the bill allows for all manual consumer recording to the extent such recording is consistent with fair use under Section 107 of the Copyright Act.

If I remember correctly, a well-spoken woman who is responsible for one of my favorite websites has talked about this before (last two paragraphs).

So, since the copyright holder's rights are subject to certain limitations, and repeated efforts to ignore those limitations have been problematic, change the law, I suppose.

Berman says over and over again that the bill "attempts to strike a balance" between protecting musicians (I'm sure he means copyright holders, since the musicians rarely retain copyright anymore) and supporting new technologies.

That's the wrong thing to balance against. You want the balance to be between the copyright holder and the listener...the person who purchased a copy of the music and the right to listen to it and make sure that they have a backup copy of the media. Nice try, though.

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