Performance Rights Act: The Voice of Reason

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microphoneReason Online is the self proclaimed magazine of “free minds and free markets.” In their own words:

It covers politics, culture, and ideas through a provocative mix of news, analysis, commentary, and reviews. Reason provides a refreshing alternative to right-wing and left-wing opinion magazines by making a principled case for liberty and individual choice in all areas of human activity.

As you may imagine a wide variety of interesting things turn up there, and today was a great day for that. I just stumbled across one of the most eloquent columns addressing the Performance Rights Act that I have yet read. Jesse Walker, managing editor of Reason and author of Rebels on the Air: An Alternative History of Radio in America (New York University Press, 2001), holds forth eloquently on aspects of the issue that are usually distorted or shunted into obscurity.

One of my favorite bits of myth-busting is when he talks about the oft presented argument that radio should not be exempt since webcasters are not. Walker points out the crucial background of that assertion:

But it’s not as though this is an inexplicable inconsistency in the law. The disparity didn’t exist until 1995, when Congress passed the Digital Performance Right in Sound Recordings Act at the behest of the very forces that now decry the separate-and-unequal system that bill created. W. Jonathan Cardi, an assistant professor of law at the University of Kentucky, summarized the record industry’s argument for the act in a 2007 article for the Iowa Law Review:

without some ability to control the digital performance of their recordings, they would be less able to prevent infringements of their existing reproduction, distribution, and derivative work rights. The labels maintained, for example, that if online services could freely transmit recordings in any manner they pleased, such performances would facilitate the creation of infringing reproductions on users’ computer hard drives.

Set aside the question of whether those claims were accurate. For our purposes, the most important fact about the labels’ argument is that it hinged on the idea that digital broadcasting is different from conventional broadcasting. Fourteen years later, as it attempts to impose a performance fee on AM and FM broadcasters as well, the industry now wants to claim the channels are equivalent after all.

He then goes on to point out the glaringly obvious question of payola. If the air time is valuable enough that record companies have consistently paid for preferential treatment despite its illegality then why should the station start paying them?

Other practical considerations that will have a rather chaotic ripple effect if this gets passed include the increased workload and cost of record keeping as dictated by the Copyright Royalty Board. This alone would add a significant indirect cost to the total of the proposed fee. While smaller fees, as recently agreed to, will be levied on non-commercial radio, the expense of this bookkeeping could easily add thousands of dollar in cost to their already strained bottom lines.

I’ve enjoyed Mr. Walker’s work in past when reading it in The New York Times, The Wall Street Journal, The Washington Post, Salon, or The New Republic. He utterly fails to disappoint with this one. If you are self-educating on the issue, or if you wish to marshal your pro-radio argument before contacting your congressperson, this is a must read. Go ahead, check out The Man Can’t Tax Our Music: The Music Industry Wants to Impose Onerous New Fee on Broadcasters, you’ll be glad you did!

Jesse, thanks for that!

Photo courtesy of Duchamp, used under its Creative Commons license

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