Season of Bad Laws, Part 4: Music Services Sell Out Fair Use

June 04, 2006

According to our DC sources, the House Judiciary Subcommittee on the Courts, the Internet, and Intellectual Property is planning on marking up and expediting a not-yet-introduced bill entitled the Section 115 Reform Act (aka SIRA) this coming Wednesday, June 7. Why the rush? Because otherwise someone might notice that the bill represents an unholy alliance between the major music service providers (AOL, Yahoo, Apple, Real Networks, etc.) and music publishing industry. If the bill passes, they win, but fair use loses.

SIRA’s main aim is clearing the way for online music services by revising the current mechanical compulsory license set out in Section 115 of the Copyright Act to accommodate “full downloads, limited downloads, and interactive streams.” So far so good, but the devil is in the details. This license specifically includes and treats as license-able “incidental reproductions…including cached, network, and RAM buffer reproductions.”

By smuggling this language into the Copyright Act, the copyright industries are stacking the deck for future fights against other digital technologies that depend on making incidental copies. Just think of all the incidental copies that litter your computer today — do you have a license for every copy in your browser’s cache?

This is dangerous language that creates a dangerous precedent. When courts look at how copyright should apply to new digital technologies, they often have few judicial precedents for guidance and thus they turn to the Copyright Act itself for clues about how Congress views similar issues. Incidental copies made in the course of otherwise lawful activities should be treated either as outside the scope of a copyright holder’s rights or as a fair use (even the Copyright Office agrees on the fair use point). But you can be sure that the copyright industries will use SIRA as a precedent to the contrary in future fights.

And that’s not the only dangerous, subtle change that SIRA would effect. By treating digital transmissions as “distributions” under the Copyright Act, SIRA would bolster arguments that the record industry is making in its case against XM Radio. What’s more, the act creates a second, royalty-free compulsory license that applies to incidental copies for noninteractive streaming, subject to an important condition: the music service may not take “affirmative steps to authorize, enable, cause, or induce the making of reproductions of music works by or for end-users.” Like the PERFORM Act, this would erode lawful home recording.

You’d think that everyone in the technology industry would be up in arms; however, acting through their representatives in the Digital Media Association (DiMA), major music service providers are supporting this bill because it helps clear the licensing thicket for their current services.

Instead of selling out our fair use rights in an effort to cut a deal with music publishers, these companies should be fighting against these dangerous changes to the Copyright Act. We’re all in favor of reforming music composition licensing, but this is the wrong way to go about it.

Write your members of Congress and let them know that you’re against SIRA.

The following came via email from

24 Hours To Save Internet Fair Use

It was meant to be a simple fix to copyright law, but a fast-tracked proposal being debated Wednesday could shift power on the Net right into the hands of the entertainment industry. Your representative is on the relevant House Committee, and you have 24 hours to warn him or her that the Section 115 Reform Act (SIRA) is a time bomb for fair use online.

Everyone agrees that music licensing for certain online music services is a mess, and the Copyright Act has left companies like Yahoo and Apple in a legal gray area. But SIRA saves the iTunes Music Store and Yahoo! Music by selling out your future digital rights. The bill would
create two new compulsory licenses to cover some (but not all) of the legal rights needed by big media companies to let you listen and download music. The catch? The wording of the law says these licenses cover “incidental reproductions…including cached, network, and RAM buffer

In turn, SIRA implies that the entertainment industry can claim that you legally need a license in the first place — even for caches, network, or RAM buffers. SIRA also declares for the first time that Internet transmission is “distribution” under the Copyright Act — another sneaky
sleight of hand, which would force everyone from TiVo to satellite radio to seek out yet more licenses from the copyright holders or face being sued into oblivion.

The House’s Judiciary Committee has no idea of these lobbyist tricks — at least, not yet. They’re rubber-stamping this bill on Wednesday. You can use our Action Center to let your representative know the dangers. We have talking points and numbers on our site.

EDIT: Tuesday Morning and It’s working now!

The Actual links; such as the Deep Links link to the above noted article does work and has many links and the initial link on this posting works fine and so does the main page of the website noted above. I will update this information as the real link becomes available.

Comments on: "Season of Bad Laws, Part 4: Music Services Sell Out Fair Use" (1)

  1. erictravis said:

    If they privatize and legislate access to the internet, it’ll be like having the British in control of Tom Paine’s printing press. A truly bad idea. We still need a good way to be certain that artists get royalties for their intellectual property, while allowing fair distibution to multiple devices for one’s own use. Mr. Edison, where are you?

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