The music industry is mounting a concerted attack on consumer's home recording rights. Here's their logic: Piracy comes from unauthorized copying and unauthorized copies come from unauthorized recordings; thus, we must stop unauthorized recordings. Of course this ignores all the legitimate uses of recording and copying, but that's beside the point. Their attack comes in the form of two bills – the Section 115 Reform Act and the Perform Act and a lawsuit filed by major record labels against XM Radio.
First, online music providers such as Apple, Yahoo, AOL and RealNetworks, through their association, DiMA, are asking Congress to enact a bill called the Section 115 Reform Act, or S1RA or SIRA, aimed at improving the process by which they license musical compositions. The bill contains provisions, which require online music providers to implement technology, which would prevent consumers from recording their transmissions.
Second, the Perform Act, which is supported by the National Music Publisher's Association and the Recording Industry Association of America, was recently introduced in the Senate. The bill seeks to reform the procedure by which digital, Internet, and cable radio services obtain licenses for transmitting music digitally. Some provisions in the bill would prevent consumers from making use of the benefits offered by digital technologies. For instance, the bill would make it illegal for broadcasters / webcasters to permit their listeners from automating the process of recording songs based on the artist or album. If you're thinking that's the same as TiVo, but for radio, you're right. Gary Shapiro of the Consumer Electronics Association clearly understood the implications when he said, “The Perform Act … would require any device that can record from a satellite radio service to play back songs only in the order transmitted on a particular channel— not in the order desired by the owner of the device”.
Third, the lawsuit against XM Satellite Radio alleges that XM's tethered download service infringes copyrights. The XM+MP3 service allows XM subscribers to record up to 50 hours of songs and programs on a device called the “inno”. Think of it as an iPod that records off satellite radio, except once you've recorded the content, it's stuck on the device–you can't get it off. Record labels allege that the device will allow consumers to create permanent libraries of songs sorted by artist, title and genre. This allows them to listen to songs individually–not as broadcast–thereby displacing song downloads and CD sales. “But, haven't we always been able to record off the radio?” I'm glad you asked.
Consumer's right to record broadcast music has long been recognized. In 1992 Congress settled the debate and passed a law called the Audio Home Recording Act (AHRA) to resolve any doubts about whether home recording constituted copyright infringement. The law provides that all manufacturers of recording devices, like the inno, and blank recording media, like blank CDs, pay a royalty for each sale, and that be dropped into a pool for copyright owners. It also requires that all digital recording devices distributed in the United States and all digital transmissions of music incorporate a technology that would allow consumers to make only one copy of the recorded or transmitted music.
The industry claims that permitting home recording from digital broadcasts is tantamount to distributing free copies of the broadcast music, resulting in lost sales to the industry. However, this was the whole purpose of the AHRA– to ensure that copyright owners get paid whenever consumers record music from radio broadcasts, or music CDs. The music industry even hailed this law as a solution to the problem of home recording, but today they seem to have forgotten about it. The music industry wants to prevent consumers from taking advantage of the possibilities offered by new digital technologies – listen to only the songs they want to and in the order they want to by recording them legally off of their broadcast medium of choice.
I want to make it clear–what I'm talking about here has nothing to do with piracy. The content industry isn't even alleging that red herring in this context. No, SIRA, the Perform Act, and the XM lawsuit are all attempts to prevent what consumers can do in the privacy of their homes. The music industry conveniently omits that consumers have already paid a royalty for their right to record music–through AHRA and the purchase of the recording device. Once again, they're not seeing the new business models or thinking out of the box. By asking Congress and courts to require all recording devices to be like traditional CDs or tapes and all radio broadcasts to be like traditional broadcasts, the content industry is stunting the growth of new technologies and services. These new services increase consumer options and through the AHRA ensure that the copyright owners get paid.