The Perform Act puts your favorite online public/community/college radio station in danger.
Elimination of
MP3 Streaming
Low-Power
Radio
Expansion
Public Access
Television
Great Trans-
lator Invasion
of 2003
IBOC Digital
Radio
Nearly all online community radio stations use MP3 streaming technology--an industry standard for the past ten years--because the format provides a cost-effective, high-quality, lawful means of delivering audio on the internet. The advent of audio streaming has unleashed creativity, education, and free flow of information. The popularity of streaming has even demanded technological advancement to streaming quality and compression algorithms such as Ogg Vorbis, and streaming solutions such as Oddstock and Shoutcast. Non-commercial stations pay Sound Exchange and associated music royalty organizations for both the music they play over the air and stream over the internet in order to remain legal.
Through a bill called the Perform Act, the RIAA plans to redefine streamers as illegal content providers, reassign streaming innovation to proprietary services, and criminalize the modern-day equivalent of consumers "taping off the radio." This approach will chain down technology, creativity, and affordability, while needlessly jeopardizing the viability of independent community radio during an era in which traditional radio listenership is steadily declining. Read about the Perform Act.
What is the Perform Act?
Perform Act is Platform Equality and Remedies for Rights Holders in Music (PERFORM) Act of 2006 [click for bill s.2644 text here]. Perform Act initially was a response to new hardware developed for use by satellite radio that allows recording of specific tracks. In the past, it has been legal for consumers to make home recordings off the radio. The difference here is that these new devices reference specific tracks and not program segments, which can be construed as content distribution. The Bill would also modify portions of the statutory license currently used by internet streamers, forcing them to replace established streaming technologies with a DRM (Digital Rights Management)-embedded web stream to effectively control content.
The bill was introduced by Sen. Diane Feinstein (CA), and co-sponsored by Sen. Joseph Biden Jr. (DE), Bill Frist (TN), and Lindsey Graham (SC).
What is the problem with Perform Act?
Perform Act initially attacks the hardware developed exclusively with satellite radio that records individual tracks. The RIAA (Record Industry Association of America) rightfully has a case against new hardware that infringes upon music copyright laws if that hardware is not licensed correctly. It was reported Sirius did pay royalty for this device. The dispute sparked the RIAA to champion additional new legislation. The hardware itself should be the topic of scrutiny; we do not need a new law. This issue should be dealt with under the current law between Sirius, XM, and the RIAA, or in court.
Second, the part of the act that implicates internet streamers has nothing to do with the above mentioned hardware. There is currently no software or hardware you can buy to perform automated recording of pre-specified tracks off internet streaming. Currently, the RIAA already has provisions for “pre-announcing” and “multiple songs per artists” written in the rules for streamers as precautionary measures. The Perform Act mandates changes in well-established, high-quality internet streaming technologies to prevent copyright infringement; however, there is no provided proof that abuses are actually occurring under current law.
Why is the Perform Act unfair?
The problem is the RIAA has no justification for demanding internet streaming to be “locked”. They have used the case of one new device that can only be used as a proprietary system with satellite radio as “the world is ending tomorrow” case to sneak-in legislation to ban mp3 streaming, which is a totally unaffiliated subject. Streaming is already regulated by established laws, the RIAA, and Sound Exchange. No record of abuses have been brought forth to warrant a new law.
What are the immediate implications?
The proposed bill will end high-quality affordable and open-source music streaming options. Streamers will have to buy (or subscribe to) licenses for Digital Rights Management (DRM), from no other but companies like the monopolistic Microsoft. Listeners will need to buy new hardware to listen to streaming: a DRM-compliant sound card. The RIAA views streaming, which is identical to broadcasting, as digital content distribution. Online stations will soon be faulted when “fair use” technologies such as stream recording aim to be redefined as implements of unauthorized content distribution.
How will this affect Community Radio and Streamers?
Over the past ten years, broadcast radio audiences have dwindled, while the popularity of internet streaming has grown. Online audiences for streaming radio stations now make up a large and significant proportion of overall radio listenership. Arbitron/Edison Media found that the internet radio listening market has increased by 50% just in the last year. If the Perform Act is enacted, the following would occur:
- No mp3 music streaming radio/internet stations. Mp3 streaming could be prosecuted under the law.
- For non-profit community radio stations that are partially or wholly funded by listener-donors, even a partial loss of this internet audience could be financially devastating.
- The Perform Act would ensure a loss of online audiences because it will force community radio stations to stop using high-fidelity, established technologies for internet streaming that listeners recognize, enjoy, and are used to. These technologies (including streaming MP3, Real Audio, Windows Media, etc.) have helped streaming community radio stations build online audiences over the past ten years, which have allowed them to flourish during an era of dwindling broadcast listenership. By exchanging the well-established and widely recognized technologies available for internet streaming for a yet-to-be-developed, digital rights managed alternative (as deemed by the Perform Act) that requires listeners to purchase and install new hardware, online community radio audiences will be driven away.
- If there is a switch to proprietary DRM streaming, the approved media format providers would control the price and quality of that format. Non-profit educational radio stations along with independent streamers are heading down that slippery slope to handing the reigns to the RIAA to determine streaming technology and royalty. One would expect a maximization of profit: low quality streaming sold at an elevated price from proprietary sources, and “streaming” redefined as “content delivery” to be synonymous. In other words, those who have the money could very well end up being the streaming providers.
- For non-commercial streamers who don’t own radio stations: Streaming technology was supposed to proliferate those who didn’t have the millions of dollars to follow the FCC’s rules to legally obtain use of the public’s airwaves, which were long ago sold off to corporations. Unjust technology charges will decimate listening audiences and bankrupt streamers.
What You Can Do
do, submit your email address to the list so we can organize a group:
online, or are part of a non-commercial radio station, CLICK HERE.
you can send a letter to your Congressperson regarding this CLICK HERE.
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Electronic Frontier Foundation The Season of Bad Laws, Part 3: Banning MP3 Streaming
Ars Technica PERFORM Act to restrict recording, broadcasting rights
Public Knowledge Recording Rights Under Attack (Yet Again)
Red Herring Music Gets Loud in Senate
More on the Perform Act
Home Taping, Royalties, and Profits
The same argument has been resurrected several times in the past, including audio tape recording, home video recording, and even digital audio tape (DAT) recording. In all cases, the law has sided with consumers for rights to make home recordings. The Audio Home Recording Act includes language permitting legalized digital home recording. Copyright law makes a distinction between someone taping audio or video programming for home use over a time duration, and a pirate that copies and redistributes specific material. Nevertheless, the industry hopes by redefining terms it could implement new legislation to blur and negate current rules
The RIAA is looking for new revenue paths to gouge consumers. Currently, systems are already in place to compensate artists for performance/broadcast through satellite, cable, internet, and radio via ASCAP, BMI, SESAC, Sound Exchange, etc. These outlets promote recording artists, provide royalty revenue, and encourage record sales. Streamers pay royalties for all the music played. Yet this money is not enough:
"Yet after releasing unprotected digital content for a quarter-century, the music industry now complains that broadcasters, consumer electronics manufacturers, and rogue consumers are conspiring to pick their pockets. They also cite statistics of dubious derivation alleging the impact of digital piracy on sales. Even if these claims were all real, why is it assumed that the industry’s sales will always rise? Could it be the quality of product or its marketing—or changing audience taste—has something to do with downturns, and not just digital piracy? In this country, no business warrants federal prosecution of its profitability. Doesn’t Congress have more important work to do than solve what are essentially business disputes for RIAA members? "
-Radio World Magazine, June 7, 2006
Maybe ABC, CBS, NBC, and FOX should form a consortium for legal controls for loss of TV ratings and advertising sales. The truth is that in the modern age technology has given us unlimited potential for entertainment. You can’t chain down your audience and force-feed them anymore. Today you can set your VCR or DVR to record TV shows and watch them later. You can also record off the radio. There is no consistency followed in the RIAA’s lobbying.
The RIAA, representing the big guys in the recording industry, blame pirating only for decreased music sales. Like any other business, desired product has a key role in sales. Are map and encyclopedia sales down because people are pirating them? No, legal internet options such as Google Maps and Wikipedia have cut into their markets. Do you think a million artists on Myspace could at least contribute towards such a trend for music? The RIAA may covertly realize that consumers may not need to buy major label music products specifically when millions of independent musicians and labels can now deliver content via the internet. Is the RIAA’s aim to outlaw affordable, high-quality mp3 streaming merely a tactic to destroy alternatives to commercial radio, and thus get rid of the competition?
The proposed bill exempts broadcasters. Exempting broadcasters—who currently stream digitally in HD Radio—eliminates NAB’s big money opposition to this bill, assuring its passage. The bill seems to be preying on easy targets to legislate in order to recoup profits. If streamers and listeners don’t cough up more dough for DRM technology, there’s an alternate solution for you: go back and listen to commercial radio.
This proposed legislation is aimed at controlling personal use of sound media—which is already governed by law. It would be achieving virtually no ground against piracy. If you are a digital pirate, it is futile to mess with recording off the internet, editing the overlapped beginnings and endings of songs, and track splitting. In addition, the music has been run through audio processing at the station-end, and compressed before being sent to a home computer. A pirate can use an unapproved peer-to-peer service, or rip a CD in seconds if they intend on re-distributing copyrighted material. Why would they mess with streaming?
But this law has little to do with piracy and much to do about redirecting and controlling what you hear to maximize profit. Shackling independent streamers and consumers is not the answer.