A few months ago we announced that FMC’s Annual Policy Summit would be in mid-April 2005. But then in October, FMC was offered a very unique opportunity to produce a day’s worth of panels and performances at a big event in New York City in late April. We are still waiting for a green light on this project, but it’s looking good. In the mean time we have re-oriented our events schedule for 2005.

April 11 or 12, 2005: DC Policy Day (actual date TBD)

We plan on turning our original mid-April Summit dates into a one-day Policy pow-wow in Washington, DC. This will be more focused and policy-specific than the Summit itself and serve as a moment where various stakeholders can really discuss three key music and copyright-related policy issues in depth. Details about this event are coming together quickly and we will send you more info about this as soon as we can.

September 11–13, 2005: FMC 5th Annual Policy Summit

Our 5th Annual Policy Summit has been shifted to Sunday, September 11 – Tuesday, September 13, 2005 at GWU’s Lisner Auditorium. These dates put us after Bumbershoot and Labor Day, but before NEMO and CMJ, which should be great. Lisner is reserved, as well as breakout rooms and ballrooms for cocktail parties, and we’re already working on a huge range of panel topics, so expect an event as broad and compelling as in years past.

We will update the newsletter folks with news as soon as we are able. Also check the events section of the website for developments.

On January 3, FMC, AFTRA, AFM, the Recording Academy and the Recording Artists’ Coalition filed joint reply comments at the FCC on localism in broadcasting.  In this filing, the musicians’ groups focused on three areas in which the Commission sought input, and which broadcasters and citizens filed comments:

• Local musicians’ concerns about local programming and access to radio;
• The existence and impact of “pay for play” business practices; and 
• The domination of centralized programming masquerading as local programming through such developments as voice-tracking.

Our filing included excerpts of comments filed by citizens, broadcasters, on-air talent and musicians, many of which articulated the problems of localism and access to local radio on a very personal and concrete level.

In addition to these points, the recording artist groups repeated at the outset – media ownership matters.  It is simply impossible to discuss how to promote localism without consideration of the consolidated ownership patterns emerging throughout this country.

Although the opportunities for a rulemaking to put the consolidation “genie back in the bottle” may be few, we urged the FCC to adopt rules and meaningful enforcement mechanisms to reform the destructive practices that exist today in television and radio broadcasting.   We also hope this proceeding can help the FCC to reconfirm its commitment to the core principles of localism, competition and diversity as it moves forward on building regulatory frameworks for managing emerging technologies.

Read the reply comments here [PDF]

With the Super Bowl anniversary upon us, both the House and Senate have been busy introducing legislation that would increase the fines on TV and radio broadcasters that air indecent material. However, as in similar legislation that died last year, these new bills also propose raising fines for performers – up to $500,000 per incident. At this point, the bills could even impose fines on recorded material, which means that recording artists could be fined for something over which they have no control over whether it is played on the air.

While we can recognize concerns that some parents and legislators have about the content on radio and TV, FMC joins with other artist organizations in opposing higher indecency fines for performers. As drafted, musicians whose music is played on the radio run the risk of fines for airplay over which they have no say. This is not only unfair, but would bankrupt most artists. In addition, it cast a chill over free speech and artistic expression, and would leave artists constantly censoring themselves, even in the studio.

Support for the passage of this bill is widespread in the House, and moderately high in the Senate because legislators are unwilling to “support indecency”, especially following the “moral values” outcome of the election. However, we are concerned that legislators are embarking on something that will have a deep impact on cultural expression and artistic freedom. If you’re concerned about this indecency legislation and its impact on free speech and artistic expression, contact your elected officials and tell them so.

The Year of Living Indecently
An excellent op-ed that takes the broad look at the chilling effects of indecency legislation on the media and culture.
By Frank Rich, New York Times, February 5, 2005

Congress to Tackle Broadcast Indecency
A year after the Janet Jackson Super Bowl incident, a new effort to increase fines the FCC can impose is underway.
By Jube Shiver Jr., Los Angeles Times, January 31, 2005

While we’re on the subject of the FCC…rumors of FCC Chairman Michael Powell’s resignation had been swirling for months until his January 21 announcement that he would, indeed, step down.

Now there’s new speculation about who will fill his shoes. We know it will be a Republican, but will it be current commissioner Martin, or someone else? In light of the media ownership deregulation fight that took place under Chairman Powell, FMC hopes the Bush Administration will be careful to keep the public’s interest at the forefront of their minds in selecting a new Chair.

Powell To Resign As Head of FCC
By Frank Ahrens, Washington Post, January 22, 2005

Mixed Legacy for FCC’s Powell
By Declan McCullagh and Ben Chamy, CNET, January 21, 2005

FCC Chairman Michael Powell Resigns
By Thomas C. Greene, The Register, January 21, 2005

Happy Fifth Birthday to Low Power FM! On Tuesday, February 8th, 2005, the Federal Communications Commission is inviting Low Power FM radio broadcasters and their allies to attend a meeting in Washington, DC. Representatives from LPFM radio stations from across the country will testify before Chairman Michael Powell and other FCC Commissioners and staff in an effort to evaluate LPFM five years after it was established.

LPFM Day
Tuesday, February 8, 2005
9:30 AM – 12:30 PM
Federal Communications Commission
445 12th Street SW, Washington, DC

Details and agenda for the day at: http://www.fcc.gov/lpfm/

Can’t make it in person? Audio/video coverage of the meeting will be broadcast live over the Internet from the FCC’s AV events web page at http://www.fcc.gov/realaudio

In addition, Prometheus Radio Project is organizing a conference on LPFM on February 7th, and meetings with key members of Congress from 1:00pm – 5:00pm on February 8th.Cake will be served. Details: http://www.prometheusradio.org/lpfm_day.shtml

Speaking of Prometheus… in June 2004, the Third Circuit Court of Appeals told the FCC that its attempts to further deregulate the American media were unjustified in landmark case Prometheus v. FCC. The court determined that the FCC employed “irrational assumptions and inconsistencies” when drafting the looser cross-ownership rules, and ordered the FCC to return to the drawing board to craft regulations that truly reflect the Commission’s stated goals of promoting localism, competition, and diversity.

On January 27, 2005, the Solicitor General announced that it would not appeal this decision to the Supreme Court. This is good news, and a victory for media reform advocates and Media Access Project, which represented citizens in the case. This means that the FCC and Bush Administration must take the recommendations made by the Third Circuit Court of Appeals and rewrite telecommunication rules to fit in their guidelines.

Here’s FMC’s press release on the Prometheus v FCC decision

US Backs Off Relaxing Rules for Big Media
Media companies hoping to expand their television station holdings and to own both TV stations and newspapers in the same markets suffered a setback yesterday when the Bush administration decided to abandon its challenge to a ruling that blocked the relaxation of ownership rules.
By Stephen Labaton, The New York Times, January 28, 2005

FCC Won’t Contest Media Ownership Rules
The Federal Communication Commission will not appeal a legal challenge to new rules that would have significantly relaxed government restrictions on media ownership, an agency spokeswoman said today.
By Jesus Sanchez, The Los Angeles Times, January 28, 2005

FMC cheers the Copyright Office for examining Orphaned Copyrights!

On January 26, 2005, the Copyright Office announced it would launch a Notice of Inquiry to examine the issues raised by “orphan works” – copyrighted works whose owners are difficult or sometimes impossible to locate.

In honor of this invitation for comments, we at FMC would like to highlight an idea we began advocating back in 2001; the construction of a process that would allow recording artists to obtain licenses for out-of-print recordings. Major labels commonly acknowledge that a majority of their back catalog is currently out of print. This phenomenon harms both musicians, who lose potential record sales, and consumers who find their variety of musical choices artificially diminished.

In order to address this problem, record contracts in some countries contain “reversion clauses” which allow for the return of the copyright to the creator (musician) if a title has remained out of print for an established period of time. Reversion clauses frame the relationship between artist and label as an equal one where both sides have responsibilities and accountability. In the United States there is no such reversion clause and, therefore, very little recourse for musicians who have signed away their copyrights to a label that is unwilling to keep those records in print.

The FMC is in the process of preparing a comprehensive response to the Copyright Office that will further advocate for making out-of-print sound recordings available to the public and the recording artists that originally created them.

Details about the Orphan works NOI are here

Comments are due at the Copyright Office by March 25, 2005.

The Supreme Court recently announced that it would hear arguments in the MGM v. Grokster case on March 29, 2005.Clearly, there are many people in the music, law, technology, copyright, and policy community that are following this case closely. Check out the huge list of amicus briefs and other documents on EFF’s Grokster page.

For musicians, songwriters, and creators of all types, there’s another case that’s worth watching. The Sixth Circuit Court of Appeals ruled last September in Bridgeport v. Dimension Films that a three-note guitar riff lasting 2 seconds used in another song was copyright infringement. This decision effectively eliminated the ‘de minimis’ exception, a legal doctrine that allows artists to sample small amounts from earlier songs to produce new creations without infringing on the earlier works’ copyright.

The Electronic Frontier Foundation and the Brennan Center for Justice have filed a joint amicus brief asking the Sixth Circuit Court of Appeals to reverse their original ruling and reinstate the de minimis rule. As the legal proceedings wil continue, it is clear that striking a balance between sampling, copyright, compensation, creativity and fair use continues to challenge the courts, policymakers and creators.

A good summary and analysis of the case on Joe Gratz’s blog and at the Free Expression Policy Project.

US Courts Confirm Simple Rules For Sampling: Newton v Diamond and Bridgeport Music v Dimension Films
On 7 September 2004, the 6th Circuit US Court of Appeal in Bridgeport Music v Dimension Films reversed a first instance decision regarding the NWA song "100 Miles and Runnin", which contained a sample of a recording of a three-note guitar riff lasting 2 seconds from "Get Off Your Ass and Jam" by George Clinton and Funkadelic owned by Bridgeport. The Appeal Court found that this was an infringement of the copyright in the sound recording.
By Tom Frederikse, Simkins Report, November 15, 2004

While the INDUCE Act got stuck in Congress last year with many content-owning proponents and technology-innovating opponents, California State Senator Kevin Murray (D-Los Angeles) has introduced a similar bill to the California Senate.

The bill states that anyone who sells, advertises, or distributes peer-to-peer file sharing software that enables the user to electronically disseminate recordings or audiovisual works over the internet is punishable by a fine not exceeding $2,500 or imprisonment. If passed and signed into law, it could expose file-swapping software developers to fines or jail if they don’t take "reasonable care" in preventing the use of their software to swap copyrighted music or movies—or child pornography.

This bill, SB 96, is burdened with many of the same flaws as INDUCE. While attempting to target the unauthorized distribution of audio recordings, pornography, and spyware, its language is overbroad, and if passed it would effectively overrule the longstanding Sony-Betamax decision in California.

State Bill Could Cripple P2P
A bill introduced in California’s Legislature last week has raised the possibility of jail time for developers of file-swapping software who don’t stop trades of copyrighted movies and songs online.
By John Borland, CNET, January 18, 2005

INDUCE – California style
Kevin Murray is fast becoming the Orrin Hatch of the California Senate. On the heels of criminalizing half the teenagers in the state for sharing music with their friends, Murray is training his crosshairs on the California technology industry.
By Jason Schultz, EFF Deep Links, January 18, 2005

In early January, CD Baby announced the launch of yet another fabulous tool designed to help musicians: Host Baby Wizard. This Wizard helps musicians create a website, from start to finish, in under an hour. The Wizard is custom-designed for musicians and allows you to easily include all the things you’ll need on your website including:

* sound clips (that stream and play immediately, no download needed)
* concert calendar (auto-updating!)
* links to buy your music on CD Baby, Tower, iTunes, etc.
* email-list signup
* your news/blog/diary
* your press/reviews
* your bio/story
* photo gallery
* guestbook for fans and friends

It’s free for a month, then $20 a month including hosting if you decide to stay. Check it out here.

11. Event Announcements

Last February, FMC teamed up with Hastings College of Law to organize a Music Law Summit West. This year, Hastings is doing it again! On Wednesday, February 26 Hastings Communications/Entertainment Law Journal (Comm/Ent), the Hastings Association of Communications, Sports and Entertainment Law, and the Noise Pop Independent Film and Music Festival are doing a 2005 Digital Entertainment Law Symposium in San Francisco.

Topics include whether there should be limits to online sex and violence, the reality of online gaming, and issues related to downloading motion pictures to DVD burners and home theater screens. It’s free but MCLE credit is also available for practicing attorneys.More details here

12. In the Newsstream

GROKSTER, P2P and MUSIC DOWNLOADS

Hollywood Ready for P2P Showdown
Entertainment companies line up allies to support them in the Grokster case, while peer-to-peer backers say the technology is good for much more than illicit trading of copyright files.
Wired, January 26, 2005

Conservatives back Hollywood
Movie studios and record labels find unlikely bedfellows in their Supreme Court fight against file swapping.
By John Borland, CNET, January 24, 2005

Music industry: ‘We’ll make you pay for downloads’
Record labels are at last ready to consider using the Net to deliver content. The question is—how to make money off it?
By Sylvia Carr, CNET, December 10, 2004

RADIO

Rock, Rolling Over
Just after the New Year, DC’s alternative rock station WHFS flipped to Spanish programming. Pressured by other formats and ways of listening, a radio staple is crumbling.
By Paul Farhi, Washington Post, January 18, 2005

Payola is dead! Now what will we listen to?
"Everyone tolerated payola when you were getting something in return," notes Jenny Toomey, executive director of the Future of Music Coalition, a musician advocacy group. "The problem with indie promotion, combined with increased ownership consolidation and fewer slots on the radio playlists, was labels were paying more and more money and not getting anything in return. It became untenable."
By Eric Boehlert, Salon.com, January 6, 2005

You Don’t Know Jack?
Radio, losing a generation of listeners to music downloading and facing threats from satellite and Internet radio, is finally starting to fight back. The nation’s biggest radio companies are responding to a grousing and mercurial audience by cutting the number of commercials per hour, expanding the range of music played on the air and experimenting with new formats.
By Marc Fisher, Washington Post, January 2, 2005

Radio stations vow to speed digital moves
Big broadcast giants say they plan to move faster toward Net-like airwaves, as popularity of satellite radio surges.
By John Borland, CNET, January 5, 2005

COPYRIGHT

Not So Golden Oldies
This month, early recordings by Elvis himself started to enter Europe’s public domain. Over the next few decades a torrent of the most popular tracks from the Beatles, the Rolling Stones and many other artists will become public property in Europe—to the pleasure of fans and the consternation of the music industry.
The Economist Print Edition, January 6, 2005

JAZZ and CLASSICAL NEWS

Music Fit for a King, Written for a Dentist
Patronage of the arts in the 21st century
By Anne Midgette, New York Times, January 23, 2005

Top conductor goes it alone after record label pulls plug
Donations from wealthy backers help pay for recordings of Bach cantatas
Charlotte Higgins, The Guardian, January 10, 2005

Challenging Routines
Jazz musician Branford Marsalis reflects on sources of renewal. Jazz has always had a reputation for being able to create something out of nothing. With improvisation as one of its fundamental elements, jazz derives its vitality from the idiosyncratic styles of its interpreters and the passion of its performers.
By Branford Marsalis, The Focus, Current Issue

13. What We’re Doing

Throughout 2004, FMC engaged in a capacity building process that will help our organization to focus on our mission and remain an effective voice in the music/technology community in the coming months and years. As part of the process, FMC has expanded our Board of Directors to include two new members, Nicole Vandenberg of Vandenberg Public Relations, and Farnum Brown of Trillium Asset Management. In addition, FMC has created an Advisory Board that now includes forty stellar founding members.We invite you to see our revised list of Directors and Advisory Board members here.

14. How are we doing?

You can always send an email to suggestions [at] futureofmusic [dot] org with your comments.

Thanks as always,

Jenny Toomey
Michael Bracy
Walter McDonough
Brian Zisk
Kristin Thomson
Peter DiCola
Wendy Harman

Donate to the Future of Music Coalition!
Secure online donations are accepted at any level at https://www.futureofmusic.org/donate.cfm