Items tagged "Copyright Modernization Act of 2006"

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You can lead a horse to water, but you can’t pay it to legally download

October 18, 2006 Copyright Modernization Act of 2006 , DRM , Fair Use , Policy Blog

You can lead a horse to water, but you can't pay it to legally download

While Congress is out, the PK blog can get a little thin–at least my posts, anyways. It's not that things aren't going on, but it can be difficult to shoehorn the PK view/agenda into the news of the day. And who wants to read shoehorned news anyways–you can get that anywhere–and really, that's not the value of our blog, nor is it interesting for you to read.

That said, the intersection of a number of stories around the web/blog-o-sphere makes for an interesting analysis, and hopefully an more interesting read.

Here are the pertinent stories. If you haven't read them, open them up in another tab, and then please come back here when you're done:

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CMA 2006 is No More

September 27, 2006 Copyright Modernization Act of 2006 , Fair Use , Policy Blog

At today's scheduled Judiciary Committee Markup, everyone's not-so-favorite copyright bill for the end of 2006, the Copyright Modernization Act was scheduled for passage. The CMA had actually been on the markup schedule for the previous two weeks, but folks on both sides of the debate had successfully chimed in to delay the bill.

House Judiciary Markup

This week, it was a little different. A few bills were considered and passed out of committee before the CMA was considered. This week, it actually came up and Rep. Lamar Smith, Chairman of the Judiciary Subcommittee on Courts, the Internet, and Intellectual Property, who introduced the bill was recognized to make a statement. In it, he said he had counted heads in the committee and was confident that he had the votes for successful passage, but was concerned that the bill may be set for difficult passage out of the House and Senate. He said he'd prefer to start anew next year. Chairman F. James Sensenbrenner rhetorically asked if that was an indication that Smith wanted to withdraw the bill from markup consideration, and then made it so.

A collective sigh of relief was let out from a few rows of audience, comprised of consumer device manufacturers and some service providers.

From there, Mr. Smith made a heartfelt statement thanking and congratulating Chairman Sensenbrenner on his leadership of the full House Judiciary Committee.

So, with your support by writing and calling your members of Congress, we've managed to dodge another bullet for, we think, the rest of the year. Good work!

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Somebody Call George Santayana: Songwriter, Union Groups Sell Out Artists

September 25, 2006 Copyright Modernization Act of 2006 , Fair Use , Policy Blog

I don't know whether to be flattered or annoyed, but several musician's unions, performance rights organizations and songwriter groups, joined by (no surprise), the National Association of Music Publishers (NMPA), specifically singled out Public Knowledge and the Consumer Electronics Association in a letter to House Judiciary Committee leaders Reps. F. James Sensenbrenner (R-WI) and John Conyers (D-MI). The letter is here.

The groups were responding to our making musician and songwriters groups aware that a number of provisions in the Copyright Modernization Act are flagrantly anti-artist and anti-songwriter. I blogged about it in great detail here. Although they don't dispute the fact that what we said is 100% true, they said that they

are outraged that the Consumer Electronics Association and Public Knowledge would claim to speak on behalf of creators while consistently working to erode the current legal protections of our intellectual property.

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CMA legislative update

September 20, 2006 Copyright Modernization Act of 2006 , Policy Blog

The Copyright Modernization Act (HR 6052) was pulled from the markup agenda today at the House Judiciary Committee. There is some new language around that we're looking at, dealing in large part with the orphan works section of the bill. None of the crucial issues surrounding innovation and the attacks on satellite radio were changed.

You can see the text of a proposed manager's amendment here.

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Copyright Modernization Act: Tough on Innovation

September 20, 2006 Copyright Modernization Act of 2006 , Policy Blog

One substantial amendment proposed by the Copyright Modernization Act is to increase the upper limit of statutory damages for copyright infringement by allowing parts of a compilation to be deemed separate works:

"[T]he court in its discretion may determine that such parts are separate works if the court concludes that they are distinct works having independent economic value"

Currently, the maximum statutory damages that can be awarded under Title 17 §504(c) is $150,000 per compilation. Under the proposed bill, a court can award $150,000 per part of a compilation (or what we typically might call an "album" or CD). This means that damages could be $150,000 per song, or more than $1.5 million per CD.

This amendment is likely to have a chilling effect on innovation in media technology. It is difficult to determine whether a new product will run afoul of current copyright laws until precedent has been established. However, if the potential statutory damages for copyright infringement were to be increased, it is certain that companies would be even less willing to undertake innovative projects.

This amendment could also amplify errors in court decisions. Losing parties would be less willing to appeal a court holding against them because the statutory damages awarded could be even higher on appeal. Indeed, in the recent case of UMG Recordings, Inc. v. MP3.com, Inc., the court awarded statutory damages of $25,000 per CD. Appealing under the proposed amendment would mean risking damages of $1.5 million per CD (compared to $150,000 per CD under the current law) and would surely have further reduced MP3.com's willingness to appeal.

Individual consumers are also adversely affected by the proposed amendment. People are as likely to be deterred by $150,000 per CD statutory damages as they would be by $1.5 million per CD statutory damages, so the deterrence effect of the amendment is likely to be negligible on most individuals. However, if the court erroneously rules that a consumer has infringed on copyrights, the social costs of this error (as measured by the cost to the consumer) are potentially magnified by this amendment.

The objective of statutory damages is to deter copyright infringement. This amendment seeks to bolster the deterrence effect, but its costs may just be too high.

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Copyright Modernization Act Update

September 15, 2006 Copyright Modernization Act of 2006 , Fair Use , Orphan Works , Policy Blog

When last we left you, HR 6052, the Copyright Modernization Act, was scheduled to be marked up by the full House Judiciary Committee this past Wednesday. But the Committee did not get to the bill. It may have been for lack of time, but we think it was a combination of pressure from consumer electronics, public interest and broadcast groups, the recording industry and artists and songwriters who are just now learning how the bill would harm them.

The fight is far from over. The trade press is reporting that Lamar Smith (R-TX), the chief sponsor of the bill and the Chair of the House Subcommittee on Courts, the Internet and Intellectual Property, will make some changes, but is determined to mark up the bill next week, regardless of whether there are outstanding concerns.

As I have said before, online music licensing reform is important and necessary, and it is doable so long as the bill is not used for other purposes, like diminishing consumers' rights, limiting innovation and taking from artists and songwriters what is rightfully theirs. If Chairman Smith is willing to cut through the wish lists of the big record labels and music publishers, we could have ourselves a very good bill.

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RIAA has its own gripes with CMA / S1RA

September 12, 2006 Copyright Modernization Act of 2006 , Policy Blog

Seemingly, the tech and public interest community aren't the only ones who have problems with the CMA/S1RA bill. Today, the RIAA sent a letter to the Hill asking for changes to the bill. Their issues are different from the ones we've stated, so let's take a closer look:

  • Promotional Uses: RIAA takes issue with the change in S1RA regarding promotional use of songs, as it will require "mechanical licenses for interactive streams for the first time." There's an exception to the rule, however it requires them to promote the song in a way that doesn't have any other "revenue-producing possibilities." The example they give is a Yahoo! Music promo web page that lists a free song, however, there may be promotional banner ads (not necessarily for the artist or the record company) which may take them out of the exception language. The RIAA also doesn't care for the "obligation to provide detailed reporting on promotional activities such as to require substantial new information technology systems, business processes and staff." They ask for a deeper carve-out or another way to negotiate around the provision.

  • Recouping Advances: Here their claim is that S1RA harms the label's ability to recoup advance payments from mechanical royalties.

  • Transition: Here they're concerned about time–how long it will take to move to the new S1RA-based licensing schemes–to account for payment systems that need to be developed, etc.

Throughout the letter, the RIAA repeats that it's committed to working with the committee to address their problems, but at the end, Mr. Bainwol is sure to be clear:

"But we will be unable to support the enactment of final legislation until such matters have been fully addressed."

Sounds like the bill that was introduced on Monday and set for mark up on Wednesday (read: tomorrow) may still be a bit controversial.

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Copyright Modernization Act: Also Bad for Musicians and Songwriters

September 12, 2006 Copyright Modernization Act of 2006 , Policy Blog

So we have gone into some detail about how the music licensing provisions (formerly SIRA) of the Copyright Modernization Act could harm consumers and innovation. This post analyzes a number of provisions in the Act that sacrifice the betterment of individual musicians at the altar of the big music publishers and record companies.

Key to understanding these provisions is knowing what "designated agents" are under the proposed law. The "General Designated Agent" grants and administers licenses and collects and distributes royalties for the use of musical works governed by the CMA. It is operated by the largest music publishing entity (measured by the amount of royalties collected during the preceding three years) and governed by a board of directors consisting of five members, three from music publishing entities, and two from the ranks of professional songwriters. Other designated agents may be appointed by the Register of Copyrights if they represent "at least a 15 percent share of the music publishing market."

Got it? If so, you may proceed. Here are the provisions of the bill that should give artists pause:

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ACTION ALERT: S1RA Licensing Problems for Consumers and Innovators

September 11, 2006 Copyright Modernization Act of 2006 , Fair Use , Policy Blog

UPDATE: We've received word that the CMA could be marked up as soon as this Wednesday. Now is the time to act.

If you've been reading the PK blog, you may have noted earlier today on Gigi's post some tidbits about the CMA. We've setup an Action Alert for you to act on and tell your friends about, here's a tidbit of it:

A new bill to be introduced in the House of Representatives called the "Copyright Modernization Act of 2006," pulls together a number of copyright-related bills that have been floating around. One of those is HR 5553, titled "Section 115 Reform Act" (aka S1RA or SIRA), which is the latest music licensing reform bill to determine the terms online music services and digital music player manufacturers must abide by.

If you're worried, you should be–S1RA is a grab-bag of new licensing terms and exemptions for the music publishers that once again may limit consumers' rights. Here are two major problems with S1RA…

You can read more about the bill in Gigi's post, but one thing is for sure, S1RA is another copyright bill that tips the balance in favor of copyright owners, to the detriment of consumers and innovators.

Click here to go to the full Action Alert to find out how you can participate.

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