WASHINGTON, DC – Senator Diane Feinstein (D-CA) last week reintroduced legislation that would mandate the use of Digital Rights Management (DRM) technology by broadcasters of both satellite-based digital radio and online digital audio streaming, in order to limit the ability of listeners to record and play back individual music tracks.The bill, known as the “Platform Equality and Remedies for Rights Holders in Music” (or “PERFORM” Act), was introduced by Feinstein with support from Senators Lindsey Grahm (R-SC), Joseph Biden (D-DE) and Lamar Alexander (R-TN) is designed to “provide equity and parity among the ‘new’ platforms that provide ‘radio-like’ services,” according to a statement published on Feinstein’s webpage on Senate.gov.
“I believe this legislation is a good step forward in addressing a real problem that is occurring in the music industry, and I encourage discussion to ensure that this law will fully serve the needs of our emerging technologies,” Feinstein said.
In the statement, Feinstein asserts that currently such “new” radio services are “allowing users to do more than simply listen to music.”
“What was once a passive listening experience has turned into a forum where users can record, manipulate, collect, and create personalized music libraries,” Feinstein said. “As the modes of distribution change and the technologies change, so must our laws change.”
“The PERFORM Act would require satellite, cable and Internet broadcasters to pay fair market value for the performance of digital music,” Feinstein said in the statement, dated January 11th. “Additionally, the bill would require the use of readily available and cost-effective technology to prevent music theft.”
Representatives of the Recording Industry Association of America (RIAA) are applauding Feinstein’s bill, and urged Congress to pass the legislation.
“We love satellite radio,” said RIAA CEO Mitch Bainwol in a written statement. “But this is simply no way to do business. It’s in everyone’s best interest to ensure a marketplace where fair competition can thrive.”
Satellite radio operators and “digital rights” advocates don’t appear to share the RIAA’s enthusiasm for the legislation.
Chance Paterson, spokesman for XM radio termed the bill “ill-advised,” according to CNET/News.com, asserting that the legislation would “harm consumers’ long-protected recording rights.”
Last year, the RIAA sued XM Radio over a long-term storage solution to its users, arguing that XM should be required to pay licensing fees comparable to those paid by Apple for the right to sell songs via the iTunes store.
Paterson says that XM is making “good progress” in what he describes as a “business dispute with our partners in the music industry,” and noted that satellite radio providers already pay royalties.
According to the statement published on Feinstein’s web page, the proposed legislation would “create rate parity,” as under the language of the bill all cable, satellite and internet companies that are covered by the government license created in Section 114 of the Copyright Act would be required to pay “a ‘fair market value’ for use of music libraries rather than having different rate standards applied based on what medium is being used to transmit the music.”
The bill would also “establish content protection,” according to the release by requiring that all companies “use reasonably available and economically reasonable technology to prevent music theft.”
According to Feinstein’s statement the bill also “contains language to make sure that consumers’ current recording habits are not inhibited,” and under the law “any recording the consumer chooses to do manually will still be allowed.”
“In addition, if the device allows the consumer to manipulate music by program, channel, or time period that would still be permitted under the statutory license,” according to the statement published by Feinstein.
The statement also provides examples of what a listener would not be permitted to do under the law.
“What a listener cannot do is set a recording device to find all the Frank Sinatra songs being played on the radio-service and only record those songs,” explains the statement released by Feinstein. “By making these distinctions, this bill supports new business models and technologies without harming the songwriters and performers in the process.”
Some digital rights watchdogs, however, aren’t convinced that the bill contains sufficient protections for consumers.
Robert Schwartz, general counsel to the Home Recording Rights Coalition, said that the proposal amounts to a “fundamental assault on consumers’ reasonable rights and expectations about home recording and fair use in any modern context.”
Gigi Sohn, president of consumer advocacy group Public Knowledge, argued that the bill erroneously equates download services like iTunes with radio services like XM or Sirius.
“This bill looks to the past rather than to the future, by limiting the ability of consumers to use material to which they have subscribed and by limiting future innovations in electronics,” said Sohn in a written statement.
This isn’t the first go-around for the PERFORM Act, which got stalled in committee during the last Congress.
“I am hopeful that the Judiciary Committee under Senator Leahy’s leadership will make time to examine this and other important intellectual property issues,” Feinstein said in the statement published late last week. “This legislation is too important for it to languish for another Congress.”
