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Senator Feinstein has just reintroduced the PERFORM Act, a bill we've seen, and fought against, before. The bill blocks digital radio services from using statutory license fees unless they place extremely restrictive DRM on the devices that receive their signal. If they don't put the DRM in, they stand to pay much higher fees to broadcast any given song, or could be barred from broadcasting it at all.
We've issued a statement to the press here, but we can go into a little more detail on this blog.
The PERFORM Act makes changes to section 114 of the Copyright Act. Currently, section 114 lets analog radio broadcasters play music over the air without paying money to record labels (they do, however, still have to pay songwriters), and it lets digital radio broadcasters pay a set fee to record labels whenever they broadcast copyrighted works, instead of having to negotiate with each record label separately. So the provision guarantees that copyright holders can't bar digital radio stations from playing their music, so long as they pay a fee determined by the Copyright Office.
This is far from a free ride for digital broadcasters; they are paying fees that analog broadcasters don't have to, and in order to qualify for these fees, they have to meet a number of requirements. Among these are limits on how many times a station can play a given track in an hour; bans on publishing a schedule of future songs to be played, and so on.
The PERFORM Act would add to these existing barriers, requiring that digital radio broadcasters build in technology to prevent anyone from recording audio off the air, "except for reasonable recording." That sounds fine, except that the bill's definition of "reasonable recording" is anything but. Take a look at page 7 of the bill:
A 'reasonable recording' means the making of a phonorecord embodying all or part of a performance licensed under this section for private, noncommercial use where technological measures used by the transmitting entity, and which are incorporated into a recording device--
p>(i) permit automated recording or playback based on specific programs, time periods, or channels as selected by or for the user;
p>(ii) do not permit automated recordings or playback based on specific sound recordings, albums, or artists;
p>(iii) do not permit the separation of component segments of the copyrighted material contained in the transmission program which results in the playback of a manipulated sequence; and
p>(iv) do not permit the redistribution, retransmission or other exporting of a phonorecord embodying all or part of a performance licensed under this section from the device by digital outputs or removable media, unless the destination device is part of a secure in-home network that also complies with each of the requirements prescribed in this paragraph.
So let's break that down. Subparagraph (ii) means that you can't have a digital radio TiVo--a device that finds artists you might like and records them off the radio. Subparagraph (iii) means that you can't edit out parts of a radio program you don't want, or take short samples from a radio program you've digitally recorded. Subparagraph (iv) means that anything that records digital radio can't have a digital output, whether by a digital signal cable, or even by burning it to a CD or copying it to a hard drive.
In other words, the authors of this bill think that the only "reasonable" recording is a recording that can't be mixed, or transferred outside a locked-down network, and one that can't automate the perfectly legal recording abilities of a human.
By attaching these DRM requirements to a licensing fee provision, the PERFORM Act sneaks a technology mandate into the field of digital radio. The statutory licensing fees that Section 114 deals with are the lifeblood of digital broadcasters--without it, there would be no digital radio, since individual copyright holders would have incredible holdout power to raise prices. So conditioning these licenses on DRM amounts to a congressional command for digital radio to use DRM. And that's anything but reasonable.