January 14, 2007 | By Fred von Lohmann

PERFORM Act = DRM Mandate

Hey, RIAA, satellite radio and webcasters already pay you licensing fees. Leave their engineers alone.

Much of the coverage of the PERFORM Act, S. 256, recently reintroduced by Senator Feinstein (D - Calif.), seems to treat the issue as a tussle between XM and the RIAA over royalties. More important, however, is the DRM mandate tucked in there.

Webcasters and satellite radio both rely on compulsory licenses that permit them to broadcast whatever music they like, so long as they pay a license fee and follow a variety of rules (like playing no more than 3 songs from any one album in any 3-hour time period, if you're a webcaster).

While the compulsory license imposes certain restrictions, it does not tell you what technology to use. Instead, it leaves webcasters free to use non-DRMd formats (like streaming MP3). In fact, all the streaming radio stations in iTunes use MP3 streams. And it's the use of non-DRMd formats that has permitted innovative technology like Streamripper and RadioLover to evolve to meet the home recording demands of music fans.

The PERFORM Act would change all that by requiring that anyone who wants the compulsory license must use a DRMd format. (For a full analysis of the statutory language, take a look at the analysis we posted last year.)

This is not only bad news for the world's MP3 webcasters (like Shoutcast, Live365, and public radio stations like KCRW and KEXP, as well as any 'caster who wants to be included in iTunes), but it's also a bad precedent for our copyright laws. Over the course of a century, our copyright laws have responded to changing technology not with government technology mandates, but rather by letting new business models evolve or, when absolutely necessary, by plugging revenue shortfalls with compulsory licenses.

And government technology mandates are particularly bad for copyright because they tend to stick around in the statute books long after they become obsolete, complicating the lives of future generations of innovators (hey, anyone remember SCMS? it's still in the Copyright Act!).

This is not about "piracy". The music flowing so freely today in darknet channels is not sourced from recordings off satellite radio and webcasts. This is just another example of the entertainment industries using DRM to put a chokehold on tomorrow's disruptive innovations.

Help us hold the line against government DRM mandates. Ask your members of Congress to oppose the PERFORM Act.

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