digital music & copyright
Date: Mon, 8 Apr 2002 01:47:10 -0400
From: Ofer Inbar
To: howard.coble@mail.house.gov
Subject: digital music & copyright
Organization: WBRS 100.1 FM, Waltham MA
X-URL: http://www.wbrs.org/
Dear Chairman Coble and Members of the Subcommittee,
I am writing to you because I have heard that you are seeking public
comment on the issue of digital music and copyright. I'm concerned
about the music industry's efforts to use copyright to subvert the
ends for which copyright was instituted in the first place: promoting
the progress of science and the arts.
Although it is customary today to think of intellectual property law
as a mechanism to ensure that corporations are able to make a profit
through the sale of artistic creations, that is merely a means to an
end. The true goal of all intellectual property law, and its
constitutional basis, is to promote the sciences and the arts, and I
urge you to look at the issue in light of this. The interests of the
music industry, and the interests of those who make music, are not
necessarily aligned, especially when it comes to money.
This is especially true when speaking of Internet radio broadcasts.
The music industry is deliberately seeking to use licensing as a
method to get rid of small, independent, or nonprofit Internet
broadcasters, by designing prohibitive licensing terms. At the same
time, it is exactly these independent broadcasters that a majority of
musicians depend on to get exposure for their music.
Since the telecommunications act of 1996, and with increasing speed,
radio in major markets all over the USA has consolidated to the point
where the majority of programming on commercial stations is no longer
even controlled by people residing in the same city as the radio
station in question. In the past, it was possible for new local
artists to catch the attention of a local radio program director, and
through airplay become popular enough to receive regional, and later
national, exposure. This avenue no longer exists, since almost all
commercial radio music programming is national, and controlled by a
small number of large corporations, with no local decision making.
In practice, only those musicians picked out by the large record
companies, can get airplay on commercial radio stations. The only
avenue left for the vast majority of musicians, is independent radio.
Consolidation has made commercial radio increasingly vulnerable to
challenges from better, more varied, more responsive, locally
controlled radio. However, in most large cities in the US, the
spectrum is effectively full. The commercial radio stations which are
part of the music industry system occupy most of the high power
licenses, and by dint of that, dominate the airwaves. In recent
years, an attempt by the FCC, with grassroots support, to allow more
new low power FM radio licenses, was effectively killed by music
industry lobbying. Although they claimed this was to prevent
interference, the FCC issued a technical opinion refuting that claim.
This is probably the only time in history that congress overruled the
FCC on an issue of radio technology. The real issue is control: the
music industry is desperate to preserve its advantage so as not to
face the looming challenge.
On the Internet, there is a level playing field. Nobody holds an FCC
license that guarantees them a higher power and more listeners, and
keeps independent broadcasters boxed in with small listening areas.
Because of this, the Internet has been extremely valuable to many
musicians who are not big stars, but who nevertheless can connect with
audiences who appreciate their music and are willing to support them.
As radio consolidation has driven most artists off the radio, many
have turned to the Internet to replace it. The music industry is
hoping to use licensing fees to defeat this new challenge, and
claiming to do so on behalf of the artists. This is a sham.
Many independent broadcasters make no profit, and in many don't even
have a revenue stream. Their broadcasts benefit the artists whose
music they play. While noncommercial radio stations pay fixed royalty
fees to the artists unions, the industry is seeking to have Internet
broadcasters pay fees based on their level of listenership. The goal
of this structure, is to do precisely what spectrum scarcity has done
on the radio: keep the independent broadcasters' "listening areas"
small. A broadcaster with no revenue simply cannot afford to allow a
large number of listeners, if they must pay fees based on that number.
When all is said and done, copyright law is and will always remain
effectively unenforceable in a free society. Copyright can only be
effective to the extent that it is respected by the majority of the
population. Changes in how copyright law is interpreted,
administered, and implemented in recent decades, and especially in the
last several years, have been undermining the public trust that is the
basis of the effectiveness of copyright law. The less copyright law
appears to be formulated to serve the public, and the more it appears
to be intended to allow large corporations to increase their already
large fortunes by controlling the creative life of the nation, the
less it will be respected, or heeded.
Sincerely,
Ofer Inbar
94 Beacon Street S.38
Somerville MA 02143
617-354-7074