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