April 25, 2006 | By Fred von Lohmann

The Season of Bad Laws, Part 3: Banning MP3 Streaming

The Washington Post reports that Senators Feinstein (D-Cal.) and Graham (R-S.C.) have introduced S. 2644, dubbed the PERFORM Act, that is aimed at punishing satellite radio for offering its subscribers devices capable of recording off the air.

Buried in the bill, however, is a provision that would effectively require music webcasters to use DRM-laden streaming formats, rather than the MP3 streaming format used by Live365, Shoutcast, and many smaller webcasters (like Santa Monica's KCRW and Seattle's KEXP). The streaming radio stations included in iTunes also rely on MP3 streams (since Apple isn't about to license the Real or Microsoft streaming codecs).

Today, webcasters that want to transmit major label music are entitled to do so under a statutory license (administered by SoundExchange) set out in section 114(d) of the Copyright Act. So long as they follow the rules and pay a royalty, webcasters can play whatever music they like, using whatever streaming format they like.

Under the current law, webcasters are forbidden from helping their listeners record the webcasts, and are required to use DRM only if the format includes DRM. The statutory license applies so long as:

[114(d)(2)(C)(vi)] the transmitting entity takes no affirmative steps to cause or induce the making of a phonorecord by the transmission recipient, and if the technology used by the transmitting entity enables the transmitting entity to limit the making by the transmission recipient of phonorecords of the transmission directly in a digital format, the transmitting entity sets such technology to limit such making of phonorecords to the extent permitted by such technology.

The PERFORM Act would change that, requiring webcasters to use DRM that restricts the recording of webcasts. That means no more MP3 streams if you rely on the statutory license. Under the bill, the statutory license would only be available to a webcaster if:

[114(d)(2)(C)(vi)] the transmitting entity takes no affirmative steps to authorize, enable, cause or induce the making of a copy or phonorecord by or for the transmission recipient and uses technology that is reasonably available, technologically feasible, and economically reasonable to prevent the making of copies or phonorecords embodying the transmission in whole or in part, except for reasonable recording as defined in this subsection.

What constitutes "reasonable recording," you ask? Well, reasonable recording is basically the feature set offered by analog cassette decks in the 1970s:

A `reasonable recording' means the making of a phonorecord embodying all or part of a performance licensed under this section for private, noncommercial use where technological measures used by the transmitting entity, and which are incorporated into a recording device (i) permit automated recording or playback based on specific programs, time periods, or channels as selected by or for the user; (ii) do not permit automated recording or playback based on specific sound recordings, albums, or artists; (iii) do not permit the separation of component segments of the copyrighted material contained in the transmission program which results in the playback of a manipulated sequence; and (iv) do not permit the redistribution, retransmission or other exporting of a phonorecord embodying all or part of a performance licensed under this section from the device by digital outputs or removable media, unless the destination device is part of a secure in-home network that also complies with each of the requirements prescribed in this paragraph.

If the PERFORM Act becomes law, webcasters who use the statutory SoundExchange licenses to play music would have to give up MP3 streaming in favor of a DRM-restricted, proprietary formats that impose restrictions on any recordings made. So much for great time-shifting technologies like Streamripper and RadioLover.

[UPDATED to reflect bill number and language as introduced in the Congressional Record.]


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