http://www.stereophile.com/shownews.cgi?1221
December 17, 2001 -- It seems that all of the forces in
the music industry have lately been conspiring against the music lover
and audiophile. The record labels and their hired gun, the Recording
Industry Association of America (RIAA), have so far blocked digital
outputs on high-resolution audio players, insisted that watermarks be
inserted into both high- and low-resolution audio data, and have even
started to restrict consumer's fair use of compact discs and digital
downloads.
The National Association of Recording Merchandisers (NARM) is one of
the few official voices standing up for the music-buying public, in
addition to its primary role as support organization for music
retailers. The group recognizes that grumpy consumers ultimately mean
unhappy retailers, and it announced last week that it is submitting
written testimony to a US House of Representatives oversight hearing,
criticizing the Digital Millennium Copyright Act Section 104 Report
that was released earlier this year by the Copyright Office. [...]
NARM's testimony is included below:
"America's retailers of music, represented by the National Association
of Recording Merchandisers,
"AGREE with the conclusion that a mechanical royalty should be paid
when a reproduction is made (a download), and that a performance
royalty should be paid when a public performance is made (streaming).
No reproduction infringes the performance right unless someone can
actually hear the performance. No public performance infringes the
reproduction right unless a copy or phonorecord remains after the
public performance is over.
"AGREE with the conclusion that lawfully made digital downloads of
sound recordings are entitled to the full application of Section
109(a). Section 109(a) entitles the owner of a lawfully made copy to
sell it or give it away without the consent of the copyright owner.
"DISAGREE with the Copyright Office's assertion in Footnote 41 that
Section 109(a) is a right without a remedy. There is absolutely no
legal basis for concluding that Congress didn't mean what it said in
enacting Section 109(a), or that Congress intended Section 109(a) to
be voidable at the discretion of a copyright owner.
"AGREE with the Copyright Office's conclusion that Section 109(a)
should not be interpreted to authorize the sale or other disposition
of archival copies apart from the originals. If an archival copy is
sold separately from a legally downloaded copy, it is no longer
archival, and therefore, it no longer enjoys Section 109(a) rights.
"AGREE that consideration be given to the creation of a new archival
exemption that provides expressly that backup copies may not be
distributed (Option 2), but with care to avoid unintended results. The
proposal to amend Section 109(a) to require that copies be lawfully
made and lawfully distributed (Option 1) would have the effect of
completely nullifying Section 109(a)'s applicability to digital
downloads, and should be rejected. Such language would give copyright
owners control over perfectly lawful downloaded copies for which
retailers and consumers have already paid.
"QUESTION the wisdom of continuing to just let the marketplace try to
solve these issues. In recent months the music industry has announced
plans in which consumers will be limited to one of only two similar
business models, two media players, little or no price competition,
and an incomplete selection of music through a handful of retail
channels. Contrary to the first sale doctrine's principles, copyright
monopolies are being leveraged to eliminate or restrict all
competition in the retailing of copyrighted content. The Copyright
Office Report fails to note the potential harm to the public of
limiting exclusively to the copyright owners the right to develop new
business models.
"DISAGREE with the suggestion that use by copyright owners of Section
1201 to protect business models rather than copyrights does not
warrant Congressional concern. Congress never intended for Section
1201 to permit copyright owners to neutralize the limitations Congress
justifiably placed upon their copyrights, or to use technology to
create for themselves rights never before conferred, such as the right
of private performance. Today, Section 1201 is being used to shield
the unauthorized usurpation of public rights by copyright owners.
Copyright owners are claiming that though the owner of a lawfully made
copy may legally sell or give away that copy, the copyright owner may
nevertheless use access control technology to prevent the buyer or
gift recipient from privately and lawfully performing the work. Such
power upsets the careful balance of public and private interests that
Congress has historically preserved in crafting the Copyright Act.
"QUESTION some of the unsubstantiated allegations of economic harm (or
threats of possible future economic harm) to copyright owners that
have colored the Report. Retailers of music are the first to feel the
sting of sales lost to pirates. We share the concern of copyright
owners about potential harm to our industry. Nevertheless, retailers
are reluctant to attribute every lost sale to piracy. Sales are also
lost to free CDs from record clubs, to lousy weather, a soft economy,
and poor releases. Retailers know that Napster did not kill the
singles market. Before Napster came along, record companies were
killing the singles market by not releasing singles. We need
independent studies which can help us all better evaluate the impact
of new technologies on the economics of our business.
"QUESTION the conclusion that Section 109(a) should not be updated so
that the principles of the first sale doctrine may carry forward to
prevent copyright owners from exercising control over individual
copies that they do not own. The Constitution and the public policy
foundations of copyright law lend no support for allowing copyright
owners to expand their control over electronic commerce once they have
been fully compensated for the license to their exclusive rights."
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