 |
 The law that could kill Webcasting
By Brian Zisk (4/24/02) |
Recently, the copyright office put forth a request for comments regarding its proposed reporting requirements for Internet radio broadcasters. Some of these requirements make sense. Others are clearly ridiculous. Dozens of individuals and organizations responded to the request for input--close to 500 pages in total. In this Expert Sound-Off, I'll discuss one major sticking point with these requirements. A second, more ridiculous sticking point--that each individual's listening habits be tracked and reported--was so far beyond absurd that its proponents, the
RIAA, dropped the request. It was so far out of line that if the RIAA held to its position, the organization would have risked being run out of town on a rail in the face of unanimous opposition by everyone from music lovers to privacy advocates to Internet broadcasters.
A) The name of the service
This is absurd! All that's reasonably needed is enough information to uniquely identify the track, when it was played, and how many people were listening.
One proposed reporting requirement that particularly infuriates Webcasters is the need for each and every Webcaster to waste huge amounts of resources entering loads of data already known by the copyright holders. No one disputes the need to submit information uniquely identifying each song since reporting is needed to ensure that copyright holders are compensated when their music is Webcast. The
DMCA itself requires that only three data fields be displayed to the listener: the title of the sound recording, the album title, and the name of the featured recording artist. These basic pieces of information also seem to satisfy songwriting organizations such as
ASCAP and BMI. Now, let's take a look at what the copyright office wants Webcasters to submit for each and every song that they play--information that in most cases the RIAA's
SoundExchange database already has or that is totally irrelevant to the reason for the reporting requirements, ostensibly to ensure that copyright owners receive reasonable notice of the use of their sound recordings. The copyright office's list or requirements reads as follows:
B) The channel of the program (AM/FM stations use station ID)
C) The type of program (archived/looped/live)
D) Date of transmission
E) Time of transmission
F) Time zone of origination of transmission
G) Numeric designation of the place of the sound recording within the program
H) Duration of transmission (to nearest second)
I) Sound-recording title
J) The ISRC code of the recording
K) The release year of the album per copyright notice, and in the case of compilation albums, the release year of the album and copyright date of the track
L) Featured recording artist
M) Retail album title
N) The recording label
O) The UPC code of the retail album
P) The catalog number
Q) The copyright owner information
R) The musical genre of the channel or program (station format)
In their filings with the copyright office, the traditional radio broadcasters make good arguments against the need (or even the ability) to report all of these fields. They show copies of promo CD-Rs sent out by labels where the only information listed on the discs is artist name, song titles, and track lengths. These CD-Rs are often even sent out for broadcast to build buzz before the album's ship date, and it is sometimes absolutely impossible to get data such as catalog number, UPC code, ISRC code, or any of the other info that hasn't even been created yet or that hasn't been provided to the Webcaster. On the other hand, the RIAA alleges that various documents such as new-release schedules--which we running Internet radio stations are never party to and which don't include information on previously released songs in any case--purportedly show that much of the potentially required information is easily available.
The Future of Music Coalition as well as DiMA and others all argue that since the copyright holders have already aggregated most of this public information into a database controlled by the RIAA, it should be the copyright holders' obligation to provide this data. Each and every Webcaster should not have to incur excessive time, effort, and costs to enter redundant information that the copyright holders already have in a database anyway.
Then there's the proposition that all Webcaster reports would need to be signed for accurately, under penalty of perjury. Record labels don't have anyone sign and personally take responsibility for the royalty statements that they submit to artists in exchange for their copyrights, yet Webcasters should be forced to sign, under penalty of perjury, records of much less important data (including playlist, as well as ephemeral copy-creation and -destruction logs)? Not to mention that the Webcasters would have to incriminate themselves by reporting data that's often impossible to obtain!
It is clear from many artists' personal experience that royalty statements--when the labels actually bother to send them--are more often than not rendered incorrectly, sometimes by millions of dollars. Even when artists audit a record label at their own expense and reveal vast underpayment, the label will often attempt to negotiate the money owed to a lower amount or stall on making payments. In addition, many musicians' contracts stipulate that the outcome of any audit must be kept confidential, which is one reason why many artists won't talk about their success in auditing and why people are unaware of how widespread this problem is. If Webcasters are forced to submit their playlist and ephemeral copy logs under penalty of perjury even if incorrect information doesn't alter the licensing fees that they must pay, then clearly the record companies should be forced to submit their royalty statements under penalty of perjury when it directly affects the amount of money that they owe in exchange for the taking of the artists' copyrights.
Next steps
