June 4, 2006 | By Fred von Lohmann

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

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 (UPDATE: now Thursday, June 8). 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.

[Updated, 6/6 with latest draft of bill]


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