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RIAA's Hold on the House

Big Music gets a twofer in Congress with a bill that cuts down on fair use and bulks up webcasting.

12:00 AM, Aug 29, 2002 • By KATHERINE MANGU-WARD
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THERE IS new draft legislation in the works that could severely curtail Americans' rights to exchange files on the Internet or share copies of music or other forms of entertainment in digital and analog formats (you can download a PDF of the bill here). The same bill would also more firmly establish the legality of webcasting. It's an odd pairing, to be sure, but it makes sense when you know who's behind it.

"Fair use" is the legal use of copyrighted material without permission--for instance, quoting a book in a review, using parts of a song in a parody, or distributing copies of a newspaper article to students in a classroom. The concept is of long standing and is not controversial. "I think there is a general intuition that small-quantity, private, ad-hoc types of sharing are fair uses," says R. Polk Wagner, who teaches intellectual property law at the University of Pennsylvania. "If my friend misses this week's episode of 'Friends,' I can give him a videotape I made [of the show]."

Current law allows an owner "to sell or otherwise dispose of" lawfully made copies. The bill, drafted by Reps. Howard Coble (R-NC) and Howard Berman (D-CA), proposes a change to the copyright code that would make most distribution of copies obtained by "fair use" illegal unless the owner has the written permission of the copyright holder.

But the bill isn't targeted at people sharing videotapes of "Friends." It's part of a long-running campaign by the entertainment industry to regain control of copyrighted music from Internet pirates. What the record companies are after is a combination of law and technology that will allow them to distribute their product widely and still get paid for it.

For now, they're putting their money on webcasting, the use of the Internet to deliver live or delayed sound or video broadcasts. Though this option is cumbersome and slower than other popular technologies (like Napster's peer-to-peer file sharing), it may be the only option left standing when the House Subcommittee on Courts, the Internet, and Intellectual Property gets finished. The second part of the new bill would clarify the legal status of temporary copies (known as cached or buffered copies) made in the course of a webcast but immediately deleted. Now technically illegal, these ephemeral copies would no longer constitute an infringement of copyright.

Both of these reforms--limitation on fair use, and protection of webcasting--would assist the entertainment industry in its continuing legal fights to protect intellectual property. In other legislation, the industry has gone after independent webcasters like AudioGalaxy. This law instituted a royalty scheme for webcasts of copyrighted material. If the Coble-Berman bill passes, the only legal webcasts will be those played from pay-per-webcast or membership sites like Duet and MusicNet, which are made possible by the Recording Industry Association of America.

And if these measures don't finish off independent online music dissemination, another bill also proposed last month by Rep. Berman--who received over $140,000 in contributions from the entertainment industry toward the 2002 race for the California district that includes Hollywood--might provide the coup de grace.

This bill would allow record companies to foil attempts to share illegal copies of copyrighted files by flooding systems with corrupted or false copies of popular music, using practices known as interdiction, redirection, and spoofing. Some bands, most notably the Canadian group Barenaked Ladies, have already put trick files on the Internet that look like a copy of one of their songs, but instead play a message from the band saying, "Although you thought you were downloading our new single, what you actually were downloading is an advertisement for our new album." These files, like the ones permitted under the Berman bill, didn't do any permanent damage to users' computers; they simply made free MP3 sites more frustrating to use and reliable pay sites (backed by RIAA) more attractive.

In the memorandum accompanying the draft of the bill regarding fair use and webcasting, Berman and Coble state that "the development of the draft does not constitute an endorsement of its contents." It is fairly unusual for congressmen to draft bills they do not support, but spokeswoman Gene Smith has been quoted as saying that they wrote the bill at the request of House Judiciary Committee chairman James Sensenbrenner (R-WI).