Mark your calendars! FMC is pleased to announce that our 5th annual
Policy Summit will be held Sunday, April 10 – Tuesday, April
12, 2005 at George Washington University’s Lisner Auditorium in
We’re really excited about these dates because they fit nicely in between
South by Southwest in March, Jazzfest and Coachella in late April, and
Free Press’ Media Reform conference in May. Plus, it will
be the end of the cherry blossom season in DC so the nation’s capitol
should be lovely.
In order to make the event as timely and relevant as possible, we won’t
start organizing panels and inviting speakers until mid-December, but
stay tuned to the newsletter for developments. You can also visit
the Summit’s homepage at http://www.futureofmusic.org/events/summit05/ for
details about scholarships and sponsorship opportunities. And we
hope to see you all in DC in the spring!
It’s either a brilliant stroke of luck or the worst scheduling
mishap in the world that CMJ has put all of the FMC crew together on
one panel this year. At 3:30 PM on Thursday, October 14 join FMC’s Jenny
Toomey, Michael Bracy, Kristin Thomson, Brian Zisk and entertainment
attorney Whitney Broussard for an engaging and wide-ranging discussion
on the current policies and the business models that are having a significant
impact on the livelihoods of musicians.
No group hugs and no high fives – we promise – but we are
going to keep this exciting by asking members of the audience to come
up and spin the Music/Technology Policy Wheel of Fortune!
On what topics will lady luck land? Will it be on the INDUCE Act, or
Health Insurance for Musicians, or the Anti-Bootlegging Law? FMC will
be at the mercy of the wheel for the whole panel.
Thursday’s program at CMJ also includes keynotes by Al Franken
and Brian Wilson, so spend the whole day at the Westin Hotel!For more
details and directions visit CMJ’s webpage.
After negotiations on the bill’s language fell apart late last
week, the INDUCE Act fizzled out in committee. You may remember
from earlier newsletters that the INDUCE Act was a bill introduced by
Senator Orrin Hatch (R-UT) that would have made technology companies
that “induce” the public to illegally share movies or music
legally liable for these violations, a prohibition that would have effectively
banned P2P filesharing networks, but also put legitimate hardware and
software – such as iPods – at risk.
In early August, FMC sent a letter to the Senate Judiciary Committee
that expressed our concerns about the original draft of the INDUCE Act. Briefly
Read FMC’s letter to the Senate Judiciary Committee here
In late August, the Senate Judiciary Committee ordered the US Copyright
Office to draft a proposal written specifically enough to ensnare the “bad
actors” but not harm legitimate businesses, software and hardware. The
Copyright Office was diligent in its efforts to include many stakeholders
in this process, and FMC was one of the many groups invited to review
the draft and submit comments.
In our comments to the Copyright Office, FMC’s Walter McDonough
pointed out that any representations that "all" musicians are
united in support of INDUCE (or any similar legislation) was simply wrong
and that some artists have actually benefited from the exposure that
P2P filesharing can give to a musician.
An excerpt from Walter McDonough’s reply: ”Because the continued
consolidation of radio in the United States and the decline of traditional
record retail have deprived many independent recording artists of access to
the media and significant marketing opportunities, P2P, in some instances,
has been their only available method of communicating with the public. Certainly,
we are discussing a universe of copyright owners who have made the decision
to share their intellectual property without reservation. Although the
actions of unscrupulous business entities that sanction copyright infringement
are certainly deplorable, a blanket ban on P2P will deprive many copyright
owners, particularly independent artists, of exercising their exclusive rights
under section 106 to increase public awareness of their copyrights by using
this relatively new form of media distribution. This is the unintended
consequence that we hope that the Copyright Office and the Congress consider
in their deliberations - - - independent musicians who choose to use P2P should
not have their only access to a mass market denied to them.”
On September 10, the Copyright Office submitted recommended language
to amend Senator Hatch’s original bill to the Senate Judiciary
Committee. Despite the Copyright’s Office’s attempt
to craft something specific, technology companies criticized the proposed
language, claiming it suffered from the same defects as the original.
Copyright office pitches anti-P2P bill
Copyright Office has drafted a new
version of the Induce Act that it believes will ban networks like
Kazaa and Morpheus while not putting
hardware such as portable hard drives and MP3 players on the wrong
side of the law.
By Declan McCullagh, CNET, September 2, 2004
New Induce Act Proposal Is a Bad Idea
The proposed language targets
companies who make "public dissemination" technologies,
where those companies make money from, or attract users with, copyright
By Fred von Lohmann, EFF, September 11, 2004
Copyright Proposal Induces Worry
For the first time ever, Rodger wrote
in an e-mail, it would make it possible for someone who has not infringed
to be liable for others’ infringement.
By Katie Dean, Wired.com, September
Senator Hatch demanded that representatives from the technology and
entertainment industries meet to negotiate a compromise. Despite
what was reported as hours of closed-door meetings, the technology companies
and recording industry reps could not come to a workable agreement, especially
on the tight time frame of this congressional session (which formally
ended Friday, October 8). This led the bill to stall in committee.
Senate Talks Fail on File-Sharing Software
Entertainment groups and consumer organizations were unable Thursday
to reach a compromise over a Senate proposal aimed at manufacturers of
file-sharing software commonly used to steal electronic copies of music,
movies and computer programs.
By Ted Bridis, Associated Press, October 7, 2004
Senate Shelves Induce Review
The Senate Judiciary Committee has postponed a final review of the
Induce Act after negotiations among the principal parties involved in crafting
the bill collapsed.
By Katie Dean, Wired, October 7, 2004
While some in the music and recording industry feel like the INDUCE
Act is a reasonable way for copyright owners to legally go after the
P2P services that facilitate filetrading, the FMC continues to have serious
reservations about the bill. As such, we are glad that the bill
has not moved ahead. This does not mean that we do not value copyrights
or think it’s okay for people to steal music – but rather
we think that the bill would not have provided a workable solution. It
could have chilled innovation, put legitimate hardware and software businesses
at risk, and it would have given the record companies the legal tools
to shut down file sharing systems that some musicians and artists actually
embrace, not to mention the fact that P2P services are capable of non-infringing uses.
Trying to legislate P2P filesharing is akin to a game of whack-a-mole
and the very bad actors will always come up with a way to shield themselves
from being subject to the enforcement of US Copyright law, so there’s
a question of whether any piece of legislation could accomplish what
Senator Hatch envisioned. FMC would like to see the market sort out the
balance between copyrights and emerging technologies before any legislation
that could hinder one or the other is enacted.
In a remarkable coincidence, the derailment of the INDUCE Act in Congress
came the same day as an announcement that the movie studios and the RIAA
had petitioned the Supreme Court to hear the Grokster case.
On August 19, 2004, the 9th Circuit Court of Appeals issued its opinion
in MGM v. Grokster, affirming the District Court finding that
Grokster’s and Streamcast’s peer to peer file sharing networks
do not contributorily or vicariously infringe the copyrights of the holders
of music and movie copyrights.
This decision upheld the Sony Betamax decision of 1984, which ruled
that VCRs were legal because they had beneficial uses besides infringing
copyrights by copying television content. Basically the 9th Circuit
found that peer-to-peer networks have the same legal standing as the
manufacturers of VCRs – that the creators of P2P networks can’t
be sued for the actions of the networks users, even if the actions are illegal.
FMC operations manager Wendy Harman has written an excellent background
piece on the Grokster 9th Circuit decision. Read it here: http://www.futureofmusic.org/articles/grokster.cfm
Clearly the MPAA and RIAA were not happy with the 9th circuit decision. So
on Friday, October 8, the MPAA and the RIAA filed a petition at the Supreme
Court, asking that the high court take this case on appeal. The
petition charged that lower courts erred in letting peer-to-peer networks
profit from copyright infringement. It also suggested that the RIAA’s
campaign of lawsuits against P2P filesharers has proven to be ineffective
in stopping the damage that illegal filesharing has inflicted on these
"Resolution of the questions presented here will largely determine
the value — indeed, the very significance — of copyright in the digital
era," according to the industry’s petition. "The infringement
Grokster and StreamCast foster is inflicting catastrophic, multibillion-dollar
harm on petitions that cannot be redressed through lawsuits against the
millions of direct infringers using those services."
Now the question on the table is whether the Supreme Court will agree
to hear this case. The court only agrees to hear a handful of the
thousands of petitions it receives in a year. However, this case
does seem to have the elements that would attract the high court’s
attention, as articulated by law professor Tim Wu a few weeks ago. http://www.lessig.org/blog/archives/002103.shtml
Some news clips about the Grokster case, both the Supreme Court petition
and the 9th circuit decision:
Hollywood takes P2P case to Supreme Court
Hollywood studios and record companies on Friday asked the United States
Supreme Court to overturn a controversial series of recent court decisions
that have kept file-swapping software legal.
By John Borland, CNET, October
Studios, labels take file-sharing fight to Supreme Court
By Jesse Hiestand, Hollywood Reporter, October 8, 2004
Judges rule file-sharing software legal
The ruling means that companies that write and distribute peer-to-peer
software can’t be shut down because of the actions of their customers.
John Borland, CNET, August 19, 2004
P2P Services in the Clear
"History has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player. Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite
their apparent present magnitude."
By Katie Dean, Wired, August 19, 2004
Senator Brownback’s attempt to hike broadcast indecency fines
on performers has been removed from a Department of Defense authorization
bill. The “Broadcast Decency Enforcement Act of 2004” (S
2056) proposed raising the maximum indecency fine from $32,000 to $500,000
per incident and, for the first time, make individual performers, announcers
and broadcast journalists liable for indecent broadcasts – even
for recorded material.
This bill was drafted following the tumult of profanities and “wardrobe
malfunctions” that happened on national TV and radio in the past
year. The bill had widespread support in both the House and Senate,
as legislators responded to calls from parents and concerned citizens
about the escalating amount of lewd, sexual, or profane material that
was seeping into network TV and radio.
The bill, however, proposed to fine not only the station owner but also
the announcer/performer. Given the fact that the FCC has never fined an
individual performer or announcer, this legislation codified a striking
shift away from the FCC’s long-standing policy that holds that
the broadcast licensee is responsible for programming decisions.
Props to AFTRA and the Recording Artists’ Coalition for working
hard against passage of the bill in this form, but also to Senator Byron
Dorgan who refused to support the bill unless provisions on media-ownership
limits were also included in the bill. When Dorgan refused to budge,
all the bills related to media ownership – including indecency – were
scrubbed from the bill.
We expect this is not the last we will hear about broadcast indecency
as it does enjoy bi-partisan support, so we will keep you posted on other developments.
Indecency Legislation Dropped
By Frank Ahrens, Washington Post, October 8, 2004
Move to Raise Indecency Fines Fails
Associated Press, October 11, 2004
Indecency fines stripped from DOD operations bill
By Brooks Boliek, Hollywood Reporter, October 8, 2004
On July 1, 2004, the FCC issued a “Notice of Inquiry” (NOI)
on localism in broadcasting. This NOI is part of the FCC’s
broader Localism Task Force – an initiative that grew out of the
contentious media ownership proceedings of 2003 during which millions
of citizens filed comments at the FCC on the state of their local media.
Go here for details: http://www.fcc.gov/localism/
Since issuing the NOI, the FCC has been collecting comments from stakeholders
and members of the public on localism in radio and television. Considering
how important access to radio is for musicians, it’s essential
that musicians, performers and citizens weigh on this topic by submitting
a written comment to the FCC before November 1.
FMC and AFTRA have built a web tool that will help folks submit comments
that will assist the FCC in creating regulatory policies that match musicians’
and citizens’ expectations.
The web form breaks down the FCC’s NOI into twelve subcategories
and provides a bullet list of the topics and questions that are on the
table. Next to each bullet list we give you text boxes to type your comments
in. When you get to the end of the form, hit submit and you’ll see your
typed replies combined into one comment. After you’ve reviewed
it, we will help you file electronically it as a public comment at the FCC.
Right now we’re making sure that it works technically, but the
form should be up and running by early next week. We hope that many musicians
and citizens will file comments in this proceeding, so stay tuned for
a specific email about this campaign in a few days.
SoundExchange is the agency that collects royalties for performers and
copyright owners for digital performances – those on webcasting
stations, satellite radio (XM and Sirius) and cable subscription services.
Since SoundExchange has only been around a few years, many musicians
and performers don’t know about it, let alone what it does. We’d
like to change that. In a world where digital performances are
quickly supplanting record sales, it’s vitally important that musicians
of all levels understand what revenue streams are out there and how to
tap into them.
Here’s an article/interview that explains SoundExchange’s
role, and how it benefits performers and labels. Read on! http://www.futureofmusic.org/articles/soundexchange.cfm
And if that isn’t enough news, how about these items?
High Court Won’t Hear Music Sharing Case
The Supreme Court sidestepped a dispute over whether Internet providers
can be forced to identify subscribers illegally swapping music and movies
Associated Press, October 12, 2004
US Judge: Anti-Bootlegging Law Is Unconstitutional
A federal judge dismissed charges against a New York record store owner
who had been selling unauthorized recordings of concerts, saying a law
against boot-legging was unconstitutional.
Reuters, September 24, 2004
6th Circuit says clear all samples
A Federal Appeals court rules
that rap artists should pay for every musical sample included in their
work – even minor, unrecognizable
snippets of music.
By John Gerome, USA Today, September 8, 2004
Microsoft launches its online music store
Microsoft insists its
service is different from Apple’s iTunes. Among
other things, the company claims its service will have a different look
and feel, and says a main selling point is that is that songs can be
played on more than 70 handheld devices that support its Windows Media
By Allison Linn, Associate Press, September 2, 2004
JibJab is Free for You and Me
Woody Guthrie’s estate took offense to JibJab’s satirical
cartoon rendition of “This Land is Your Land,” but couldn’t
stop the small company from using it because the song belongs to the
By Katie Dean, Wired, August 14, 2004
Thanks to everyone who responded to our membership survey in August,
which asked FMC newsletter subscribers who they are, what they like about
FMC, and what issues they find important. Here’s a snapshot of
DEMOGRAPHICS of SUBSCRIBERS
Role: 40% musicians, 17% music fans, 6% advocates,
genres represented: rock, songwriter, indie, experimental, composer,
Age: 25-34 = 42%, 35-44 = 27%
Gender: 70% male, 30% female
Race: 82% white, 5% NA, 3% black, 3% multiracial
Income: 17% in the $25K
range, 15% in the $35K range, 15% in the $90K range
Education: 41% college
grads, 30% graduate, 21% some college
The top five important issues for the respondents were: 1. Media
ownership 2. Copyright issues 3. P2P filesharing 4. Digital music stores
5. Major label practices
Favorite FMC campaigns and projects were: 1. the Policy Summits 2. the
newsletter 3. the radio study “Radio Deregulation: Has it Served
Citizens and Musicians?” 4. our work on media consolidation
and 5. the major label contract critique
Want to see more results, including the very long list of “other
issues” that FMC should consider working on? Go here: http://www.futureofmusic.org/about/subscribersurveyresults.cfm
And thanks again to everyone who participated. It was very helpful
for us to gather feedback about our work and understand the contributions
that we can make in the music/technology space.
The “what we’re doing” section will return next month.
You can always send an email to suggestions [at] futureofmusic [dot] org with your comments.
Thanks as always,
Donate to the Future of Music Coalition!
Secure online donations are
accepted at any level at https://www.futureofmusic.org/donate.cfm