A few weeks ago, I blogged about the PERFORM Act, a draft bill spearheaded by California Senator Dianne Feinstein. I wasn't able to show it to you then, but I can now – here it is. There is little to like about this bill. Basically, it uses the ruse of music licensing reform to place limits on private, noncommercial home recording of radio, a right that consumers have had for years. Here is the cogent analysis of one of the smartest copyright/technology lawyers in town – Bob Schwartz of Constantine Cannon, who represents consumer electronics retailers, among others:
“The PERFORM Act is the latest “sky is falling” bill pushed by the recording industry. This bill would prevent satellite radio subscribers from recording and listening to programming that they have paid for, unless they pay an additional license “tax” to the record labels on a song by song basis (which, in addition to cost, would severely limit the repertory that could be offered to the public).
This is yet another attempt by the record industry to deny consumers access to new technologies and content, and to eliminate the right to private, noncommercial home recording that Americans have enjoyed for decades.
The RIAA is already being well compensated by the satellite radio industry. XM and Sirius already pay the record labels tens of millions of dollars in performance royalties. In addition, under the Audio Home Recording Act of 1992 (“AHRA”) satellite radio pays the record labels up to $8 for every digital radio recorder sold. RIAA's demand to be paid a third time reflects either greed or their simple desire to shut down a new technology.
The PERFORM Act has nothing to do with piracy, the internet or P2P. It is aimed exclusively at limiting in-home and private uses of satellite radio broadcasts that Americans paid for and have a right to enjoy at their convenience. The PERFORM Act even would prevent consumers from listening to individual songs recorded from satellite radio, except in the order they were broadcast.
Digital satellite radio transmissions cannot be uploaded to the internet. Satellite radio is a closed system. Transmissions are encrypted, and cannot be moved off the device in digital form.
Satellite radio is nothing like iTunes or other download services. Satellite radio does not allow you to select or access songs on demand, burn your recordings to a CD, or transfer your recording to a different device.
The PERFORM Act would put a tight straightjacket on innovation. The PERFORM Act would ban any recording based on songs, artists, genres, “other user preferences”. If such harsh restrictions were applied to video, products such as TiVO would be outlawed. It is simply wrong for the government to freeze innovation by banning new technologies and features that are desired by consumers.
The PERFORM Act would wipe out noncommercial, “fair use” recording. The bill requires satellite broadcasters to prevent “automatic” recording, and indicates that (contrary to the AHRA) even this might be subject to copyright suit. It bans the sort of private, noncommercial time-shifting that Americans have engaged in for decades.
The PERFORM Act gives record label rights societies a free ride. The PERFORM Act allows record label collecting societies to circumvent copy protection measures used by satellite radio companies. Remarkably, this is backed by the same groups who argue consumers should never be allowed to circumvent technological locks, even to engage in a fair use activity. Even more outrageous is that the bill would force satellite radio broadcasters to give these organizations a free license, saving them from the modest subscription charge that more than 11 million Americans gladly pay.
The free market is already working without government interference. The satellite radio and recording industries are in an ongoing dialogue on compensation. Recently, Sirius entered into an agreement with a number of record labels. The issue of appropriate performance royalty rates will be negotiated later this year. This bill is nothing more than the recording industry using Congress to gain leverage in private negotiations.
The PERFORM ACT harms American consumers, the technology industry, and private, noncommercial recording rights.”
Word is that Sen. Feinstein is courting John Cornyn (R-TX) to be a Republican co-sponsor. Thanks to fair use friend Radio Shack for sending terrific letters to both Senator Cornyn and House Courts, Internet and Intellectual Property Subcommittee Chair Lamar Smith (R-TX) opposing this draft. If you are a Texas resident, please contact Senator Cornyn and urge him not to co-sponsor this bill.