[iwar] [fc:Why.college.radio.fears.the.DMCA]

From: Fred Cohen (fc@all.net)
Date: 2001-12-15 17:35:01
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Subject: [iwar] [fc:Why.college.radio.fears.the.DMCA]
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Why college radio fears the DMCA
If the Digital Millennium Copyright Act is fully enforced, stations will be
unable to afford to webcast their tunes.

- - - - - - - - - - - -
By Mark L. Shahinian

Dec. 13, 2001 | In the heady days of the late 1990s, Internet radio
broadcasts were a poster child for the free flow of information over the
Web. But if a 1998 federal law is fully enforced, webcasting could be just a
fond memory for college radio.

Under the terms of the 1998 Digital Millennium Copyright Act (DMCA), radio
stations around the country are supposed to pay thousands of dollars in
annual fees to broadcast streaming audio over the Web. Managers of college
and community stations say while their commercial counterparts may be able
to pay the fees, their stations don't have the cash and will shut down their
webcasts. 

The 1998 law came up on Capitol Hill Thursday, as members of the House
Subcommittee on Courts, the Internet and Intellectual Property held an
oversight hearing on how temporary copies stored on computers should be
counted when calculating copyright fees.

The hearing, said congressional staffers, was an early skirmish in a battle
to defang the DMCA and transfer power from record companies back to
broadcasters. 

Webcasting was once touted as an example of the Internet's leveling power --
it allows small local stations to reach Internet users all over the world.
And college stations, which run tight budgets and eclectic playlists, fit
the webcast bill perfectly. But record companies don't like webcasting, with
its potential for copying and distributing unlimited digital copies of
songs. 

Under long-standing U.S. copyright law, broadcasters pay a coalition of
songwriters' groups to air music over the Internet and the airwaves. But
until the DMCA, performers and record companies did not have the rights to
royalties when stations played their music. As part of the 1998 law,
Congress allowed performers and record companies to start collecting fees on
songs sent over the web, said Joel Willer, a mass communications professor
at the University of Louisiana at Monroe. There are still no performer fees
for regular airwave broadcasts.

But until now, the law has yet to be fully enforced. If it is, college radio
on the Web will be in trouble.

According to Bob Kohn, founder of eMusic.com, and author of a book on music
licensing, classic Beltway dealmaking partially explains why radio stations
are being asked to pay performers for webcasts,

As the 1998 Digital Millennium Copyright Act came together, says Kohn, the
Recording Industry Association of America (RIAA) and the Digital Music
Association, or DiMA, struck a deal: The DiMA, made up of webcasting heavies
such as MTV, wanted to shut small webcasters out of the market. The RIAA
wanted money for its artists and record companies.

The RIAA got their fees -- and the fees effectively strangled the interest
in small-time webcasting, says Kohn. The fees may end up doing the same for
college webcasting.

Both the RIAA and the DiMA strongly disagreed with Kohn's characterizations.

"That's just pathetic," says Jonathan Potter, head of the DiMA. "The MTVs
and AOLs of the world have spent millions to argue for lower rates for
everybody." Agreeing to webcast fees was painful, and was only done because
members of the DiMA, faced with huge lawsuits over copyright infringement,
had their back to the wall, says Potter.

Will Robedee, general manager of KTRU at Rice University in Houston, is
trying to pull together a coalition of college radio stations to change the
DMCA. Some fees are acceptable, but college stations shouldn't have to pay
anywhere near what the big commercial stations pay, says Robedee. The law
makes some provision for special treatment of nonprofit stations, but
Robedee wants guarantees of substantially lower fees

The law also includes requirements that stations report every song played --
requirements, says Robedee, that would be impossible for low-budget,
nonautomated stations to meet.

"There is a public interest in having these stations webcasting," Robedee
said, citing exposure given to unknown bands, and the eclectic playlists
that characterize college radio.

Still, performers deserve payment for their songs, says Jano Cabrera,
spokesman for the RIAA. "We think that the law makes sense because artists
and record companies who invest time, energy and resources should be
compensated." 

The fees, if implemented, would mean the end of webcasting at KALX, the
University of California at Berkeley's radio station, says KALX general
manager Sandra Wasson.

KALX pays a total of $623 per year to songwriters (as opposed to performers)
to play music over the Web. The fee is low, Wasson said, because KALX
doesn't run advertisements. If the recording industry's fee proposal goes
through, KALX would have to dish out $10,000 to $20,000 a year in webcasting
fees, Wasson said. And the fees would be retroactive to 1998.

"On our small budget, there's just no way we can afford those amounts," says
Wasson, who also notes that KALX's $200,000 yearly budget is huge compared
to most college stations.

The recording industry and broadcasters are battling in front of a federal
arbitration panel over just how high those fees should be. The RIAA,
representing performers, is asking for 0.4 cents per listener per song.
Broadcasters want fees many times lower. Record companies and performers
will split the fees equally, Cabrera said.

Robedee, at Rice, hopes a new bill intended to gut the Millennium Copyright
Act will include protections for college stations.

The Music On-Line Competition Act is designed to break the hammerlock the
recording industry has over music distribution, says Rep. Chris Cannon,
R-Utah. Cannon co-authored the bill along with Rep. Rick Boucher, D-Va.

Cannon hails from a conservative district in eastern Utah. But he called
music-swapping service Napster "one of the coolest inventions of modern
times." 

The Boucher-Cannon bill streamlines the licensing and fee payment process
for webcasting, but as of yet, it doesn't lower the amount college stations
will pay. 

Cannon, however, says he is willing to sit with college and nonprofit
stations and hear what they have to say.

Cabrera, at the RIAA, called Boucher-Cannon a "solution in search of a
problem," saying it introduces too much government regulation.

But according to one Cannon aide, copyright holders have listeners and
broadcasters over a barrel.

"The pendulum has swung a little too far for the copyright holders," the
aide said. "As a result, college radio stations are going to get hit with
$20,000 bills." 

"It boils down," the aide said, "to, Do you want choice in your music?"

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