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05/06 Editorial: Stream an MP3, Go to Jail?!?


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(Every month, a new editorial is posted in Sound, Studio, and Stage. Your comments and feedback are encouraged!)

 

Stream an MP3, Go to Jail?

 

This is not a good day for technology, legislation, listeners, musicians, or the music industry.

 

S. 2644, "the PERFORM Act" ("Platform Equality and Remedies for Rights Holders in Music Act of 2006") has been sponsored by Dianne Feinstein (D-CA), Lindsey Graham (R-SC), and majority leader Bill Frist (R-TN). It's scary stuff that has several nasty provisions: It would essentially require that anyone streaming content (webcasters, satellite radio, TV, cable etc.) use some kind of DRM/protected format that would restrict the recording of broadcasts. The thinking is that entities like XM are "distribution" services, not "listening" services like radio. Well, they have a point there: I often record things off XM, run off zillions of CDs, and sell them on the streets of New York...NOT.

 

Currently, webcasters can transmit music under a statutory license that makes provisions for paying royalties, however, they are not allowed to help listeners record the webcasts. DRM is required only if the format has it; in other words, it can't be stripped out for re-broadcast. Fair enough.

 

But the new law would require that DRM be included that would prevent recording, except for "reasonable recording" (a throwback to the days of cassettes; basically, personal, non-commercial use if so permitted by the DRM). But it gets worse: "Reasonable recording" now means you couldn't choose the rsong you wanted to listen to and record, although you would have the right to change channels. Say what? Yes, the idea of "taping a song off the radio," as has been done for decades (and has also been protected by copyright law) would be off limits.

 

There are some allowed uses of recording based on "specific programs, time periods, or channels selected by the user" but not "specific sound recordings, albums, or artists." If you did record the music, you would be prohibited from taking cuts or transferring material to portable media devices unless they were part of a DRM-enabled network.

 

Haven't we been down this road before? Wasn't it established by Sony and the Betamax that time-shifting devices are okay? Whose rights am I trampling on by recording a broadcast of a particular artist on XM and listening to it after dinner instead of having to listen to it during dinner, when it airs and I might not want to hear it?

 

Again, let me emphasize that I am a strong supporter of intellectual property rights. I believe artists should be compensated for their work, and just as I believe in "buy the software you use," I believe in "buy the music you listen to." But let's face it, buying music is only half the issue: Being exposed to the music you'd like to buy is another. With AM and FM radio totally moribund as ways to expose new talent, all we're left with is the internet, satellite radio, and other innovative providers.

 

What's even worse (yes, it does get even worse) is that companies like XM and Live365 already pay much higher royalties than terrestrial radio, and hardware manufacturers pay extra licensing costs to enable recording features. Now, to be fair, consider that XM can deliver a song to you that you can record without paying the bucks you'd need to pay to, say, iTunes, which has negotiated a license fee. But iTunes offers convenience: If you want a particular song right now, you can get it. Who knows when XM or your favorite web station will play that song, or even if they'll play it at all? If you want to hear a favorite song whenever you want, you buy a copy. I suppose you could also just camp by a radio and hope they'll play it so you can record it...and no, XM is not the same quality as a CD. And my XM to go sure doesn't have a digital out: I have to record analog, from the headphone output.

 

Then again, the whole point of copyright is to allow the owners of said copyright to control the means of distribution, and if this is the way they want to control it, that's their right if they can get the law passed (and considering that the RIAA is a formidable lobby and senators/representatives are bought and sold by lobbyists, that's a very good possibility). Okay, do it your way. But ask yourself: Will this promote the music industry? Will it truly get more people to buy music? Will it expose listeners to new music and create a vital listening environment? Or will artists end up making less, except for a few blockbusters like a Beatles back catalog, because the music industry will continue its downward spiral due to a refusal to come with innovative ways to re-invent itself?

 

We'll see. I have a simpler solution: If they're really concerned about XM and Sirius being "distribution networks," just mandate that all players can have only analog outs. Just like cassette decks, which after all, did not kill the music industry.

 

In my opinion, S.2644 is a stupid, hastily contrived bill that puts a band-aid on a gaping wound. It may make the lobbyists feel they're getting their money's worth from campaign contributions, but far from saving the music industry from itself, it will be just another nail in the coffin of the music industry as we know it.

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i'm not really familiar with xm or even things like itunes, but i appreciate the editorial. dunno if it's the first, but it's the first time i've read it. so, thanks, anderton.

 

one thing though is the amount of red in the article. seems like it's almost half. kind of distracting, imho. (i ended up selecting the text so as to not be destracted by it.)

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I agree with object -- while I like different text styles to call out the opinion sections and so forth

 

That particular style is very very hard for me to read

 

Q : Is the bill entered in the Thomas system yet?

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An interesting editorial.

 

My desire to download songs is not to sell them or even listen to them on an iPod, it's mainly to learn songs so that I can do them in my classic rock cover band. I don't need excellent quality, I just need to be able to hear the lyrics and make out the notes.

 

I really don't want to shell out 17 bucks to buy a CD so I can learn one song.

 

I do tape record off the radio and then listen to see if there are any songs worth learning (usually not).

 

I also use tablature, chord and lyric websites, but you pretty much need to have a good idea of what the song sounds like in order to use the sites.

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Congress is about to give control of the Net over to the telcoms, so it all might not matter in the end after they screw it up and want to charge per minute for access.

 

 

Forced DRM? I suppose they'll enforce it by going after the independent ISP's that host the files, thereby eliminating our options?

 

Another aspect of allowing the government complete control over all media/information.

 

... and the Know Nothing Sheeple will pat them on the back and say "we feel so much safer!".

 

/ can one be a political luddite?

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Times have changed. To make a long story short, back in the 80s California proposed well-intentioned, but technically highly flawed, copy protection legislation. I was tipped off to this by a reader at EM (I was Editor at the time) and called one of the chairpersons. I explained what was going down, the guy's attitude was "wow, no one explained that part of things," and the bill was killed.

 

The entertainment industry is very powerful in California, and that's Feinstein's turf. As to the RIAA, I think they are so clueless it's unbelieveable. It's like there's a grocery store in town. A new grocery store opens up next to it with lower prices, girls in flashy uniforms, and giveaways. To compete, the older grocery store raises prices, reduces parking, and installs a metal detector that customers have to walk through...then wonders why everyone's at the other store.

 

I should point out that I DO believe artists should be compensated for their work. I DO believe that artists should have control over the disribution of their works. But I don't believe the methods that worked in 1976 are necessarily the best way to do business in 2006. One computer company with a tiny market share figured out an option that worked; can't the mighty Entertainment Industry do likewise?

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Eegads. With lawmakers on both sides of the spectrum making up garbage like that, our country is in for a world of accelleration in the hurt department. Then again, we get the government we deserve...

 

The thing that gets me about this is that it makes me wonder how the RIAA got to be such buddies with lawmakers on diametrically opposed sides.

Hopefully, this is just an act of desperation on the part of the RIAA that will end up nowhere.

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Originally posted by Anderton

But it gets worse: "Reasonable recording" now means you couldn't choose the rsong you wanted to listen to and record, although you would have the right to change channels. Say what? Yes, the idea of "taping a song off the radio," as has been done for decades (and has also been protected by copyright law) would be off limits.

 

what hasn't been done for decades is distribute technology to every kid that enables them to make perfect digital copies of broadcast music and then provide them with web-based distribution networks that make Tower Records look like a mom and pop shop.

 

[warning: unpopular view ahead...] Times have changed, really changed, as in easy-digital-distribution-of-recorded-music changed, and so must the law.

 

 

Originally posted by Anderton

Then again, the whole point of copyright is to allow the owners of said copyright to control the means of distribution,

 

As I understand it, the whole point of copyright, from the point of view of the framers of the original law, was to provide incentive for the creation of new work. Copyright law was and is for us!

 

At its base, copyright law was established in order to give rights to creators of new works that would encourage them to create new works. The thinking was that by enabling music creators to profit from their work, they would create more of it, thus enriching culture and filling people's lives with more new music. (and it's worked)

 

Originally posted by Anderton

and if this is the way they want to control it, that's their right if they can get the law passed

 

Revolutionary production and distribution technology change everything, turning existing copyright law into quaint relics. So the question is, what to do? How do you continue to provide financial incentives to society's creative producers so they are compensated for spending their time making wonderful music? To say "I do this because I love it" is a nice thought, but with copyright law in place and the opportunity for musicians to profit from the work, society enjoyed an explosion of music creation.

 

The trick, I guess, is to fully exploit all the new means of production and distribution that give unprecedented opportunities to talented people, without gutting financial incentive. If someone writes and produces a song that everyone wants to hear, they should be able to be paid just like anyone else who works hard and creates something that other people want.

 

 

Originally posted by Anderton

We'll see. I have a simpler solution: If they're really concerned about XM and Sirius being "distribution networks," just mandate that all players can have only analog outs. Just like cassette decks, which after all, did not kill the music industry.

 

The problems with that is that you have one industry telling another industry what type of equipment they can or cannot produce. I believe this very battle has been fought and lost in the courts.

 

As a result content creators cannot limit the holes hardware creators may punch into the back of their boxes. The next best thing (from the point of view of the content producers)... hobble the digitial stream so that what comes out of the hole does not flow into the rives and oceans of free digital internet distribution.

 

Originally posted by Anderton

In my opinion, S.2644 is a stupid, hastily contrived bill that puts a band-aid on a gaping wound. It may make the lobbyists feel they're getting their money's worth from campaign contributions, but far from saving the music industry from itself, it will be just another nail in the coffin of the music industry as we know it.

 

The sky is falling!!! The sky is falling!!!

 

I don't think this law is the final answer, but an intermediary step as the industry continues to transform itself. Just look at the confusion in France, with a bunch of old men writing ridiculous laws about iPods they probably have never even used and then backing down when their kids starting screaming at them over (no doubt fabulous dinners of fine French food) that they were chasing their beloved iTunes out of town.

 

This whole transformation of the music industry is absolutely wonderful and emancipating. I bet that we are only just starting to glimpse what the New Music Order will turn out to be. Copyright protections have proven to be invaluable to musicians and the development of the music industry in the 20th century. We are a far cry from the King's servants of yesteryear, and copyright law has a lot to do with that.

 

that copyright law is an old frumpy man trying to keep up with the sprightly innovation of youthful technology and the web is no surprise. but that doesn't mean that it's a bad thing. Laws like this are just a little huffing and puffing as the old man catches up, and when the music industry finally settles down as new technology matures, I think we musicians will be more than happy that the old man is still with us.

 

-peace, love, and blips

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Originally posted by Anderton

Again, let me emphasize that I am a strong supporter of intellectual property rights. I believe artists should be compensated for their work, and just as I believe in "buy the software you use," I believe in "buy the music you listen to."
But let's face it, buying music is only half the issue: Being exposed to the music you'd like to buy is another.
With AM and FM radio totally moribund as ways to expose new talent, all we're left with is the internet, satellite radio, and other innovative providers.

 

 

Exactly.

 

The copyright belongs to the creator of the work. That individual should have control over how freely something is distributed. A certain amount of freedom in distribution sows seeds for more sales.

 

I believe the model for albums being cash cows by selling a $17 product to people who want one song is over. Single songs rule.

 

Do the major music conglomerates not see that having a vital broadcast medium moves product? The content on radio seems to be strictly packaged formats. "New music? What's that?" The chance of being surprised by something on commercial radio (nevermind pleasantly surprised) is virtually nil.

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The RIAA continues to dig its own grave deeper and deeper. This law might be the little nudge they need to stumble into it...

 

The law infringes on my right to distribute my own IP in the way I see fit.

 

In a broader sense, only certain people will continue to consume music under these conditions. That will be those who think the music the mega-corporations are trying to shove down our throats is the best thing for all of us.

 

Maybe its time to give up on music and take up oil painting or something...

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>

 

Yes, but with the incentive being that you're protected and can control your work. It's exactly what you alluded to later, that people need to be compensated to have this kind of incentive.

 

>

 

For record companies, the sky IS falling. Sales are way, way down. Digital distribution hasn't been figured out yet. Companies have merged into a few "superpowers" that aren't doing all that well.

 

This is NOT the time to alienate consumers and make it MORE difficult and expensive for people to enjoy your music. Ask anyone who had a rootkit installed in their computer when they played a CD...or those who bought a DualDisc and found out it wouldn't work in their player.

 

If I buy a recording, I want to be able to play it, and I think I should have the right to play it in a portable player if I want without having to ask for permission. Protect music from piracy? Yes! Absolutely. But protect it from paying, legitimate consumers? Big, big mistake.

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Originally posted by Anderton

>


Yes, but with the incentive being that you're protected and can control your work. It's exactly what you alluded to later, that people need to be compensated to have this kind of incentive.

 

I guess I'm making a distinction between control and profit. U.S copyright law seems to be designed more for profit as an incentive whereas copyright law in France, for example, gives artists more control.

 

In the U.S., once you release an initial recording, you've pretty much relinquished control. Other people can record it, parody it, play it, change it, and there's not much you can do about it (except receive liscencing fees and royalties). If anything, U.S. copyright laws encourage derivative work.

 

I doubt that the 2 Live Crew case (cover of Roy Orbison's Pretty Woman) that bubbled up to the Supreme Court and expanded Fair Use would have gotten the same thumbs up in France. In France and other European countries, there's more of a culture of "once you create something it's your baby." In the U.S., copyright law seems to reflect a culture of "once you create something, it's your cash cow."

 

Originally posted by Anderton

If I buy a recording, I want to be able to play it, and I think I should have the right to play it in a portable player if I want without having to ask for permission. Protect music from piracy? Yes! Absolutely. But protect it from paying, legitimate consumers? Big, big mistake.

 

I couldn't agree with you more. And I think this is where the technology and the laws are simply out of step but will eventually catch up with each other. There's just so much technological innovation, it happens so quickly and is, itself, in a state of flux, that the law, by comparison, lumbers slowly in its wake. I mean, just turn on CSPAN and look at those guys!

 

For example, in the 2 Live Crew case, behind the scenes, the supreme court justice who wrote the decision wasn't able to operate the walkman he used to review the song without assistance. Legal reform and technological innovation are just two different animals.

 

But the law you're attacking is not about people who buy songs and can't play them where they want to. If I understand it correctly (and maybe I don't), it is about people carting songs around that they haven't paid for.

 

It is one thing to buy music and expect to play it wherever you want. But it's another thing to turn on the radio, and receive an endless stream of versatile digital copies, veritable CDs popping out of the radio and onto your shelf, that would canabalize any reason to ever buy the stuff again.

 

-plb

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>

 

As I understand it, it's about people not being able to take songs THEY OWN and transfer them to anything other than acceptable, protected networks. Otherwise I wouldn't be upset! As I said:

 

There are some allowed uses of recording based on "specific programs, time periods, or channels selected by the user" but not "specific sound recordings, albums, or artists." If you did record the music, you would be prohibited from taking cuts or transferring material to portable media devices unless they were part of a DRM-enabled network.

 

In other words, you would be allowed to record certain tunes, but if you did, you couldn't transfer them to, say, a Zen or iPod unless the DRM allowed it.

 

I also think the "record from XM" is a bit of a red herring. The quality is definitely not "CD quality" (whatever that means these days!!!!), and the only way to record it that I know of is through the headphone or speaker outs, which are also a bit fidelity-challenged.

 

Besides, I'm PAYING to listen to XM, and they're PAYING royalties. I'm not hacking the XM signal, like witha cable descrambler or something.

 

In other words, there's ALREADY a mechanism in place for compensation. Why not just re-negotiate that instead of creating a whole new mess?

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Originally posted by Anderton

As I understand it, it's about people not being able to take songs THEY OWN and transfer them to anything other than acceptable, protected networks.

 

I'm not sure that it's accurate that by contracting for XM service, one owns (a copy of) the programming

[certainly an issue to look at and not unique to this context - so I think itmay be a biggie]

 

In other words, you would be allowed to record certain tunes, but if you did, you couldn't transfer them to, say, a Zen or iPod unless the DRM allowed it.

 

Hmm, well, that *might* (dunno, we'd have to take a look at it in depth prob) constitute "space shifting" as per the 9th cir decision in A&M v Napster

 

I also think the "record from XM" is a bit of a red herring. The quality is definitely not "CD quality" (whatever that means these days!!!!), and the only way to record it that I know of is through the headphone or speaker outs, which are also a bit fidelity-challenged.

 

that's pretty specific to your unit..the XM PC radios go through USB and one could stream rip, the new Pioneer XM-enabled 'personal players' thingies actually HAVE a record button for XM programming

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Brit did bring up the interesting issue that, in general, USA copyright philosophy tends to be far more oriented to monetary v artistic control than a good bit of the world.

 

It certainly is a different 'color' of thinking fo shizzy and sometimes we find ourselves having to 'shift gears' if there is the 'other aspect' like the World Wide Church of God stuff, possibly the Grey Album injunction, our thoughts on Bobby McFerrin not comfortable with the Repub Party or Neil Diamond's initial refusal for "girl.." in Pulp Fiction, etc

 

 

Hypothetical for consideration :

 

Say we operate under time-shifting (with a valid one-use only provision)

 

BUT

the material being time shifted is strict samay (a tradition in which a rag is supposed to be played at a certain time) in Indian Music

 

 

thoughts?

 

[sorry, I don't have answers -- just questions ;) ]

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thank you Craig .

 

it would appear that the gentlemen , our elected reprentitives assume we are all thieves

 

i.e. thought-criminals

 

you may not have not commited the crime yet, but with out the proper guidance you will fall prey to THOUGH-CRIME and from there you will be ripping and running in a short time.

a Dangerous thought criminal , a danger to yourself and a danger to others.

 

at the turn of the twentith century a gentleman wrote a book examining the constitution ,who wrote it and the arguements that went into it's framing.

the conclusion we (businessmen ) must protect us from them (citizenry)

 

this new law is a continuation of this philosophic supposition.

 

"we must protect ourselves from them"

 

we will avoid the sticky subject of failure to enforce laws designed to protect them (us) i.e. safety conditions in coal mines and those sort of legislated protection, lack of enforcement benefits the business owners (them) while enhancing their profit their margins

 

with this thought in mind the new law is in keeping with a long and honored tradition.

to disagree with this assumtion is not in keeping with the "AMERICAN WAY " therefore seditious. (thought-crime)

 

morbundity is a fine discription of the state of broadcasting in America.

 

Now if only the FCC would stop renewing the broadcasting licence of radio station ,KPFA fm a member of the dreaded Pacific foundation

http://www.kpfa.org/2ab_gen.htm

the air waves would be cleansed of the vile and pernicious filth of the Pacifica Foundation (ie KPFA and all of her sister stations). a foundation of thought-criminals

 

Clear Channel and it's ilk are freeing us from the bondage of unguided choice.

though the ministry of truth has been slow to respond to the need to protect us from the thought-criminals roaming freely among us, I believe: that this time the Ministry of Truth has done it's job exceptionally well with this new law.

 

INGSOCFORPHOTOBUCKET.jpg

slavery is freedom.

:wave:

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Originally posted by Anderton

As I understand it, it's about people not being able to take songs THEY OWN and transfer them to anything other than acceptable, protected networks.

 

Your pet peeve seems to be the issue of transportability, that when you buy a song you ought to be able to play it on whatever device you like. I agree with you wholeheartedly and believe that the realization of that goal is just a matter of time. It has to be. It makes too much sense.

 

Where we differ is on the notion that when you subscribe to XM for $10 or whatever it is they take out of my bank account each month, you own all the songs it happens to broadcast. In my view, my $10 lets me listen to their audio streams as they are broadcast. Then, any old school surreptitious analog taping of the signal, or new school digital capture per special permissions is gravy.

 

But beyond that, if I wish to own any of the music that XM broadcasts, I expect to have to buy it from some sort of store, brick and mortar or online - at which point your argument about transportability, in my view, is engaged 100%.

 

Isn

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