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Looper's Delight
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Sorry about the length folks, but it's important. Kim's okayed the breaking up of this into two parts. Part 1 follows: Original sections are preceded with a > For a start, this stuff is being introduced by Chris Cannon, a Republican from the 3rd district of Utah - http://www.house.gov/cannon/ and by Rick Boucher, a Democrat from the 9th district of Virginia - http://www.house.gov/boucher/ >SECTION 1. SHORT TITLE. >This Act may be cited as the "Music Online Competition Act of 2001" Not only does this have very little to say about Competitions it's not even a short title! >SEC. 2. EXEMPTION OF CERTAIN PERFORMANCES IN ONLINE AND PHYSICAL RETAIL ESTABLISHMENTS. >(a) EXEMPTION. ---Section 110(7) of title 17, United States Code, is amended -- >(2) by striking "by a vending establishment" and inserting "or of a sound recording by digital audio transmission, by or in a physical vending establishment"; and Translated: Instead of activity on the part of a simple "vending establishment" online or off that strictly SELLS something, the proposed legislation substitutes the text redefining this to be ANYWHERE on or offline that offers a sound recording by "digital audio transmission", targeting both physical locations and virtual ones. So this means that the proposed legislation affects any place where music or any other digital content is posted. >"(B) performance of a sample of a nondramatic musical work or a sample of >a sound recording by digital audio transmission, by or through a digital online service open to the public at large without any direct or indirect admission charge, if -- >"(i) the purpose of the performance is to promote the retail sale, distribution or license, by or through the service, of copies or phonorecords of the work, including by digital phonorecord delivery as defined in section 115(d)(1); >"(ii) the transmitting entity transmits the sample solely to the >particular recipient requesting the transmission; and, >"(iii) the length of the sample does not exceed 30 seconds or, in the case of a sound recording of more than 5 minutes in duration, 10 percent of that sound recording not to exceed 60 seconds;". Translates to: performance of samples of nondramatic musical work or any other sample of the result of digital audio transmission, which comes through any digital device, and either charges or does not charge for access. This means anyplace, and somehow every kind of digital audio live or recorded, so long as it's not a "dramatic musical work", which I believe is defined someplace in Copyright Law under Mechanical Royalties. This applies in the case of i, ii, and iii have to do with (i) If the performance in anyway promotes for sale, distribution or license your work in the form of broadcast, file-directed copy, or CD/tape; (ii) if the transmission is from provider directly to the listener, or customer of an online service; (iii) the length of the sample is 30 seconds or shorter, or, if the total work is greater than 5:00, 10% of the total length up until 60 seconds. This would appear not to immediately affect full-length works, but since many online services have low-res samples of pieces to hear before you try to go the entire length, it might easily apply. >(b) DEFINITION OF PERFORMANCE. -- >Section 110 of title 17, United States Code, is amended by adding at the end the following: "For purposes of paragraph >(7), a 'performance' includes a transmission made by a transmitting organization to or on behalf of a vending establishment or a digital online service.". Translates to: A 'performance' is now redefined as including any transmission done to or through a vending establishment, or an online service, in short, at your home or office, or WAP. >SEC. 3. EXEMPTION FOR EPHEMERAL RECORDINGS AND FOR MULTIPLE EPHEMERAL RECORDINGS. >(a) EXEMPTION. ---Section 112(a)(1) of title 17, United States Code, is amended -- >(1) in subparagraph (A), by striking "made it, and" and inserting "made it and, except to facilitate transmission of the performance,"; and In short this intends to allow for the mirroring of sites with the intent to provide gap-free performance of the piece, and other obvious (to server admins) reasons. If mp3.com decides to operate multiple mirror servers for your one song, they only pay for that one song. >(2) in subparagraph (C), by striking "public." and inserting the >following: "public, except that a transmission program as set forth in section 114(d)(2)(B) or section 114(d)(2)(C)(iii) is not required to be destroyed by a transmitting organization entitled to a statutory license under section 114(f).". Could mean that, if you produce music work for broadcast online, the people who throughput it for you, say, mp3.com or Live365, are not required to not keep an archive of the result after its need is finished. So mp3.com etc. could keep a copy of something you played online even after you've removed it from availability. >(b) MULTIPLE EPHEMERAL RECORDINGS EXEMPTION. -- >Section 112 of title 17, United States Code, is amended -- >(1) by striking subparagraph (C) of subsection (e)(1) and re-designating subparagraph (D) as sub paragraph (C); >(2) by redesignating subsection (f) as subsection (g); >(3) by adding after subsection (e) the following: (that is, inserting a clause - jeez!) >"(f) Notwithstanding the provisions of section 106, and except in the case of a motion picture or other audio visual work, it is not an infringement of copyright for a transmitting organization entitled to transmit to the public a performance or display of a work, under a license, including a statutory license under section 114(f), or transfer of the copyright or under the limitations on exclusive rights in sound recordings specified by section 114(a) or for a transmitting organization that is a broadcast radio or television station licensed as such by the Federal Communications Commission and that makes a broadcast transmission of a performance of a sound recording in a digital format on a non-subscription basis, to make one or more copies or phonorecords of a work included in a sound recording, if -- Translated: This only applies to audio works. It is not an infringement of copyright for a provider to transmit or display as available your audio work under an agreement, or transfer the copyright under an exclusive agreement, or for any FCC-licensed facility, to broadcast an audio work / performance in digital format on a non-subscription basis, as well as make one or more copies / recordings / CDs / tapes of your audio work (or a sample from it) if... >"(1) each copy or phonorecord is retained and used solely by the transmitting organization that made it; and "(2) each copy or phonorecord is used solely for the transmitting organization's own transmissions within its local service area, or for purposes of archival preservation or security." 1. each copy / recording is kept and used ONLY by that transmitting organization, say, mp3.com; and 2. each copy is used only for the company's transmissions or for archiving. This again covers mirrors and backups, but potentially limits artists from having pieces posted on more than one site, since violation could be produced by both mp3.com and iuma.com having a copy - and backups/mirrors - of your audio piece. >SEC. 4. LICENSING FOR TRANSMISSION. >(a) STATUTORY PERFORMANCE LICENSE PAY MENTS. -- >Subsection (g) of section 114 of title 17, United States Code, is amended -- >(1) by striking paragraph (2), and >(2) by adding after paragraph (1) the following: (another insert) >"(2) Receipts from the statutory licensing of public performances of sound recordings by digital audio transmission in accordance with subsection (f) shall be allocated and paid in the following manner: >"(A) 45 percent of the receipts shall be paid, on a per sound recording basis, to the recording artist or artists featured on such sound recording or to a designated collection and distribution organization on behalf of such featured recording artist or artists. 45% will be paid to the artist or artists featured on the recording, or to a designated firm on behalf of which fees are collected. >"(B) 2.5 percent of the receipts shall be deposited in an escrow account managed by an independent administrator jointly appointed by copyright owners of sound recordings and the American Federation of Musicians (or any successor entity) to be distributed to non-featured musicians (whether or not such musicians are members of the American Federation of Musicians) who have performed on sound recordings. 2.5% of those receipts will be mandatorily kept in an escrow account by an independent administrator "jointly appointed by copyright owners of sound recordings and the American Federation of Musicians" (or whomever bumps them off for the business), in order to give these funds to musicians NOT INVOLVED IN THE WORK, but who have performed on SOME sound recording in the past, whether they're members of the AFM or not, and whether or not they actually did work on your audio piece. >"(C) 2.5 percent of the receipts shall be deposited in an escrow account managed by an independent administrator jointly appointed by copyright owners of sound recordings and the American Federation of Television and Radio Artists (or any successor entity) to be distributed to non-featured vocalists (whether or not such vocalists are members of the American Federation of Television and Radio Artists) who have performed on sound recordings. An ADDITIONAL 2.5% of receipts will be manditorily kept in an escrow account by an independent administrator "jointly appointed by copyright owners of sound recordings and the American Federation of TV and Radio Artists" (or whomever THEY bump off for the business) to be given to vocalists NOT INVOLVED IN THE WORK (whether they're members of the AFTRA or not) but who have performed on SOME recording in the past, whether or not it's YOUR audio piece. >"(D) 50 percent of the receipts shall be paid to a designated collection and distribution organization on behalf of the copyright owner of the exclusive right under section 106(6) of this title to perform publicly the sound recording by means of digital audio transmission under the statutory license of subsection (f) of this section.". 50% of receipts shall be paid to an organization on behalf of the copyright owner of the exclusive right to broadcast your audio piece - this could just be the broadcaster (mp3.com etc.) and NOT the artist. Got that? Manditorily... 45% goes to the artist(s) on the recording, or publishing company; 2.5% goes to AFM 2.5% goes to AFTRA 50% goes to the broadcaster, who just might decide to pay you a fee for letting them use your work. >(b) LICENSING AFFILIATES. -- >(1) IN GENERAL. -- >Subsection (h) of section 114, title 17, United States Code, is amended -- >(A) by striking paragraphs (1) and (2) and inserting the following: (another insert) >"(1) If the copyright owner of a sound recording licenses an affiliated entity the right to reproduce the copyrighted work, to distribute the copyrighted work to the public by means of a digital phonorecord delivery or to perform the copyrighted work publicly, the copyright owner shall make the licensed sound recording available on no less favorable terms and conditions to all bona fide entities that offer similar services, except that, if there are material differences in the scope of the requested license with respect to the type of service, the particular sound recordings licensed, the frequency of use, the number of subscribers served, or the duration, then the copyright owner may establish different terms and conditions for such other services, that such different terms and conditions -- >"(A) shall be limited to, and shall accurately reflect any such material differences in the scope of the requested license; and >"(B) permitted under this paragraph, shall be made available to all bona fide entities that offer similar services. If you license any firm to make copies of your audio piece, distribute it to the public via CD / tape /etc. or public broadcast, you must also make the recording available on duplicate terms to anyone who offers similar services - unless there are limitations in the scope of the license you've signed the piece on for specifically limiting the use of the piece to that firm, whether it's inclusion in a collection (like mp3.com does occasionally) or a limited broadcast for subscribers only. If there ARE differences in the licensing it must be reflected in the agreement (this is redundant potentially), and again must also be made available to other similar service providers. Does this mean that if you're happy running your stuff on iuma and mp3.com wants a piece, you have to let them use it? >"(2)(A) Except as provided in subparagraph (B), a copyright owner that licenses a sound recording pursuant to paragraph 1 shall not mandate as part of the terms and conditions of the license that the licensee use any particular digital rights management technology. The copyright owner may not dictate what method of digital rights management is used. If you differ with Microsoft's methodology for instance and your service provider uses it, then so do you have to use it, whether you want to or not. >"(B) A copyright owner described in subparagraph (A) shall not be >prevented from including in the license a requirement that the licensee implement digital rights management technology that meets reasonable and nondiscriminatory performance criteria the copyright owner has established to protect a right of a copyright owner under this title in a work or a portion thereof. The copyright owner has the right to have a clause in his license agreement that requires that whatever digital rights management technology is used, it must not degrade the quality of the performance in the owner's opinion, but only if they've established a methodology of their own already. >"(3)(A) Except as provided in subparagraph (B), a copyright owner that licenses a sound recording pursuant to paragraph (1) shall not mandate as part of the terms and conditions of the license that the licensee use any particular digital music player. If you don't like RealPlayer you can't keep mp3.com /etc from encoding your work in it; similarly you can't enforce that only RealPlayer be used to play encoded material. (This might be a weird bit of business for Real/AOL!) >"(B) A copyright owner described in subparagraph (A) shall not be >prevented from including in the license a requirement that the licensee use a digital music player that meets reasonable and non discriminatory performance criteria the copyright owner has established. If you want you can include in your license agreement that the licensee uses a player or program that does not cause the quality of your performance to suffer - if you've put a clause in your license to this effect. >"(4) ENFORCEMENT. --- >(A) The Attorney General may investigate an alleged violation of this subsection if an investigation begins not later than 2 years after an alleged violation occurred. Sounds like a violation may have already happened, and this is being set up to go after it, or prevent it from happening again by the sheer threat of enforcement. A caveat I suppose - the Attorney General has 2 years to begin investigation of an alleged violation (if of course you even know that it occurred, and if the Attorney General decides your complaint is worthy of attention). >"(B) If the date of an alleged violation is unknown, the Attorney General may investigate to determine the date of the alleged violation. If the Government can't find out when the "violation" happened, they can spend all the money and resources they want, and harass everyone in a quest to determine the date of "violation." >"(C) If the Attorney General determines that a violation of this >subsection has occurred, the Attorney General has the power to seek to enforce the requirements of this subsection through all appropriate means. "...all appropriate means" has been heard before, and could come short of "with extreme prejudice". >"(D) Nothing contained in this paragraph shall be construed to limit the authority of the Attorney General under any other provision of law. There is no limit in this paragraph to the authority of the Attorney General in any way. >(2) DEFINITIONS. --- >Subsection (j) of section 114 of title 17, United States Code, is amended -- >(A) by amending paragraph (1) to read as follows: >"(1) The term 'affiliated entity' means an entity, other than an entity that wholly owns or is wholly owned by the licensor, engaging in digital audio transmissions covered by section 106(6) or digital phonorecord deliveries in which the licensor has any direct or indirect partnership or any ownership interest amounting to 5 percent or more of the out standing voting or nonvoting stock."; Join ASCAP or another affiliate, or die financially. If you own your own label, you obviously own more than 5% of the process, and are therefore taking the place of that "entity" with respect to this legislation. >(B) by redesignating paragraphs (6) through (15) as paragraphs (9) through (18), respectively; >(C) by inserting after paragraph (5) the following: >"(6) The term 'digital music player' means a technology that renders audible the sounds in a sound recording embodied in a digital audio transmission or a digital phonorecord delivery. The "digital music player" defined as something that either receives a signal, or plays a disk / recording. >"(7) The term 'digital phonorecord delivery' shall have the meaning given such term in section 115(d)(1). Delivery is both the delivery of broadcast in digital form, or the delivery of a recording in digital form. In short, EVERYTHING recorded digitally. >"(8) The term 'digital rights management technology' means a technological measure used to limit the uses of copyrighted work to those authorized by the copyright owner or the law.". Yet to be completely troubleshooted as we know. There may be elements of the case against Microsoft involving their Media Player's "digital rights management" routines involved with this. As said previously the copyright owner doesn't have a say in which DRM technology is used, unless it degrades performance quality. The part "or the law" leaves it open to yank that one away from you if the Government wants to. >SEC. 5. ELECTRONIC ADMINISTRATION OF THE COMPULSORY LICENSE FOR MAKING AND DISTRIBUTING SOUND RECORDINGS. >(a) NOTICE OF INTENTION. --- >Section 115(b) of title 17, United States Code, is amended -- >(1) by striking paragraph (1) and inserting the following: (another insert) >"(1)NOTICE. --- >(A) Any person who wishes to obtain a compulsory license under this >section shall do so by serving a notice of intention to make and distribute phonorecords of the work. So we're supposed to now serve a notice of intention if we want to make and distribute CDs of our own? It's not said as to whether or not it's required that the "notice" be agreed to by the copyright owner. Also, it's not said where or how - or what form this "notice of intention" should take. This is a hole through which elephants (or music company behemoths) could walk without a care; it also could set up a legalistic methodology similar to the patent process, that increases the cost of producing CDs, recordings, and other media ten-fold at least. And (surprise!) gets the little guys out of the business. But wait, there's more. >"(B) Such notice may be given by direct notice served upon the copyright owner or by constructive notice that does not identify the copyright owner and that is to be served upon the Copyright Office. This no doubt is one of the changes to Copyright law that RIAA was trying to get through a month ago; any day then one of us could receive a compulsory notice from someone stating that they're distributing and copying our work - and if we didn't register it with the Copyright office, song by song, or have our expensive lawyers do it, they can do anything they want, so long as they tell the Copyright office that they're doing it. The original owner, in some cases, is just screwed, and potentially not even told when it occurs. >"(C) Notice shall be served before or within 30 days after making, and before distributing, any phonorecords of the work, except that a notice of intention to make digital phonorecord deliveries shall be made within 30 days after enactment of this Act or before the making of a digital phonorecord delivery of the work, whichever is later. Deadlines for those who wish to legally steal the use of your work, with the help of the "notice of intention", within 30 days of this becoming law, or before the recording is originally produced, whichever is later. >"(D) Any notice of intention may identify more than one work and a constructive notice also may identify a work by one or more copyright owners. This I think allows for the Medley rule, so that if your work is a compilation of pieces about the Grand Canyon, the "notice of intention" would only have to be filed once to steal the entire suite. >"(E) The notice shall comply, in form, content, and manner of service, >with requirements that the Register of Copyrights shall prescribe by regulation."; If the Registrar of Copyrights doesn't like the notice it doesn't apply. But you the copyright owner need not be necessarily told, as outlined above. (continued in next post)