Copyfight: When is a Reprieve Not a Reprieve

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Posted by Alan Wexelblat

If you’ve noticed that non-commercial Web radio in fact did not die last Sunday you might be thinking “Ah, a reprieve.” Well, yes and no.

It is true that SoundExchange, the entity charged with collecting the Cartel’s blood money, did offer better rates at the last minute. As Eric Bangeman wrote, it appeared that having Congressman Markey call the parties to sit down at a roundtable had some effect. Naively one might think that SoundExchange would rather deal than fight, particularly not wanting to get into a public fight over Congress’s proposed “Internet Radio Equality Act.”

Those who got the reprieve, such as Tim Westergren of Pandora radio, were publicly sure that the outcry from listeners had made a difference. Westergren clearly had no idea who he was dealing with.

Within a day of the initial joy it became clear that there would be a price to be paid. What SoundExchange and the rest of the Cartel want is to get Net radio locked into a DRM straightjacket. And now they have the threat of these fees to compel cooperation.

I believe the technical term for this is “extortion” but perhaps some lawyer can tell me otherwise. I mean, that’s what you see in Hollywood films, right? The evil mastermind offers the hapless sucker a great deal. Sure, we’ll get you out of your troubles. Just do this one little thing for us…

Ken Fisher excerpted SoundExchange’s press release on ars technica (emphasis in his excerpt):

“SoundExchange has offered to cap the $500 per channel minimum fee at $50,000 per year for webcasters who agree to provide more detailed reporting of the music that they play and work to stop users from engaging in ‘streamripping’

So it’s that simple. Become our agents in preventing people from recording Web radio streams or face the financial axe.

Fisher’s piece on ars today paints a picture of a pissed-off Digital Media Association claiming that SoundExchange never mentioned DRM during the roundtable discussion. No duh, guys. Did you forget you were dealing with venomous snakes in suits? These are the guys that sue children living in housing projects purely on principle. They’d rather kill things they can’t control than make money off them. They’re well aware that the Audio Home Recording Act of 1992 permits you and me to make noncommercial recordings of broadcasts and since they’ve failed to get the law changed they’re going to back-door it if at all possible. A few weeks ago I wrote some speculations on the Cartel’s ultimate motives in all this. One of the possibilities I thought likely was that their goal is control. By hook or by crook, and usually both, they want control over what you and I do.

According to Anne Broache’s entry in the CNET news blog, the war of words is escalating, with both SoundExchange and DiMA doing the “he said”, “no he didn’t say” thing. This could be serious or it could just be pre-negotiation posturing. Both sides say they intend to continue meeting.

So far I haven’t seen anything from Markey, which leads me to believe it’s posturing. If he thought one side or the other was seriously reneging on what they’d said in front of him he would probably have to issue a statement at least, or risk being made to look like a fool or a dupe for one side or the other.

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