Thanks to all the fine companies (including those listed below) who agreed to be part of our recent "RAIN Vendor Guide (Ver. 2.0)" issue. If you didn't have a chance to spend time with it yet, you can access the issue here.

BY PAUL MALONEY
The National Association of Broadcasters is continuing its insistence that Internet simulcasts of over-the-air signals are not subject to sound recording royalties -- and it has filed an appeal to that effect.

Last August, a U.S. district court found that the webcast streams of terrestrial stations are subject to the DPRA (Digital Performance Right in Sound Recordings Act) and the DMCA (Digital Millennium Copyright Act).

The NAB's appeal, a 64-page brief filed late Monday, contends that the district court erred in that decision. It also argues that broadcasters' streams should be exempt from copyright liabilities for the related ephemeral recordings.

The NAB argues that Congress, recognizing the mutually beneficial relationship of radio and the record industry, exempted "nonsubscription broadcast transmissions" from the performance right granted in the DPRA and DMCA. The NAB further argues that Congress "made plain that this exemption encompasses both any digital over-the-air transmissions of radio broadcasters' programming, as well as the broadcasters' 'streaming' of that same programming over the Internet."

However, the US Copyright Office determined, and the Court later upheld, that broadcasters would be subject to "sound recording" royalty rates for their Internet transmissions, in much the same way as "Internet only" webcasters. The NAB appeal calls the Copyright Office's interpretation "curious and artificial...digital hair-splitting."

The Recording Industry Association of America will be the largest benefactor of these royalties. In a response to the appeal, RIAA senior VP Steven Marks (right) told Reuters, "Rather than seek special treatment from the courts, we encourage the broadcasters to work with the labels and artists as our industries transition into new businesses."

The full 64-page filing and a 16-page "summary" are both available in the Adobe Acrobat ".pdf" format on the NAB website here.

...

... With this filing, it becomes clear that broadcasters may not be aggressively working with Internet-only webcasters in fighting for reasonable performance royalties because they are, instead, arguing that they should be exempt from such royalties entirely. In describing the impetus for the passage of the DPRA and DMCA, the NAB describes copyright owners' fears of services that would displace sales like "celestial jukeboxes," on-demand downloads and subscription services, and "multiple, highly-themed genre channels of sound recordings." The NAB brief quotes a 1995 Senate report associated with enactment of the DPRA in 1995: "Under this provision, any transmission to members of the public that is neither a subscription transmission (as defined in Section 114(j)(8)) nor part of an interactive service is exempt from the new digital performance right.” "Notwithstanding the views of the Copyright Office...that it is appropriate to create a comprehensive performance right for sound recordings...the Committee has chosen to create a carefully crafted and narrow performance right, applicable only to certain digital transmissions of sound recordings. “The underlying rationale for creation of this limited right is grounded in the way the market for prerecorded music has developed, and the potential impact on that market posed by subscription and interactive services—but not by broadcasting and related transmissions.” The 64-page filing is a bear to wade through, but from a layman's point of view it DOES seem as if the "related transmissions" referred to in the paragraph above must refer to Internet streaming of those signals. How does this logic relate to Internet-only webcasters? The NAB brief notes, "In explaining its refusal to impose new burdens on FCC-licensed terrestrial radio broadcasters, Congress identified numerous features of radio programming that place such programming beyond the concerns that animated the creation of the limited public performance right in sound recordings. "Specifically, radio programs (1) are available without subscription; (2) do not rely upon interactive delivery; (3) provide a mix of entertainment and non-entertainment programming and other public interest activities to local communities to fulfill FCC licensing conditions; (4) promote, rather than replace, record sales; and (5) do not constitute “multichannel offerings of various music formats.” Rightly or wrongly, that may have been Congress's rationale for establishing a royalty for Internet-only webcasters but not for broadcasters. -- KH ...

From the Arizona Republic: "If music Webcasting -- the streaming of music over the Internet instead of through radio receivers --makes it through the present decade, it will be no thanks to the federal bureaucracy.

"A much-dreaded ruling out of Washington, D.C., last month could mean the end of small Webcasters and the crippling of large ones...

"How is all of this important to music, to music-lovers and music-makers? Consider the case of Valley pianist Julianne Markavitch. Markavitch is an independent artist who records and produces her own compact discs. As with other independents, her main concern, post-production, is how to market her product.

"An Internet station called Beethoven.com has been the answer. Beethoven.com streams and promotes Markavitch's recordings when standard broadcast stations are not even remotely interested. Should Webcasting be crippled by performance royalties, Markavitch and other independents would suffer...

"Internet streaming is live and cannot easily be downloaded for later play. It's easier to tape music from FM radio. The feds seem to have confused Internet radio with Napster, the file-sharing service that offered free downloadable digital files of copyrighted performances.

"Internet radio is a force for presenting and promoting a far greater range of music than could ever be showcased on broadcast radio alone. It would be a shame to allow its destruction because of governmental confusion.

"The good news is that the Librarian of Congress' decision can be appealed. Many Webcasters and artists are preparing those appeals."

Read this piece from the Arizona Republic here.

The Technology Administration will host a public workshop today on digital entertainment and rights management.

Representatives of the IT and content industries will address the technical issues involving the legitimate distribution of digital media and the tools available to protect digital content.

According to the administration's website, topics to be addressed include efforts to pursue solutions that provide a predictable and secure environment for digital transmission of copyrighted material, what obstacles hinder the open commercial exchange of digital content, and consumers' attitude towards online entertainment.

The Technology Administration is part of the US Department of Commerce.

"Vote Howard Coble out of office..."

I have an idea!

Why couldn't all of us, webcasters and listeners alike, find a way to send a mailer out to all the Constituents in North Carolina's 6th Congressional District (which is served by Republican Howard Coble), and let them know what is at stake in the coming election...webcasters' right to broadcast on the 'net at a fair price, and listeners'/consumers' fair-use rights?

I would like it if we were able to encourage voters in the 6th District to vote Howard Coble OUT OF OFFICE in November!

"The black market as I view it: radio..."

I agree with the ruling, these people spend a lot of time recording and editing their songs, for people to enjoy, not take advantage and play to a vast group of people worldwide.

It's about time the copyright symbol holds meaning to these people that take advantage (aka the black market as I view it: radio).

From a press release: "Thirty year radio and Internet veteran Michael R. Fisher has joined Radio Web Network as Director of Sales Development. Fisher joins Radio Web Network from First MediaWorks...

"Fisher's Internet experience includes work as sales manager for RadioWave.com and the IQ Television Group...

"Radio Web Network is a website sales, management & promotional network headquartered in Portland, Oregon focusing on the radio industry. Radio Web Network manages, operates and consults more than 65 radio station Web Sites."

Fisher told RAIN, "A radio station website that truly becomes an extension of the radio station online that 'superserves' P1s can impact ratings. The eight Arbitron Edison reports gives us all the documentation anyone should need. Traffic generated to the web site by a well-executed programming and permission based e-mail marketing campaign will generate the success advertisers are looking for."

Here is a growing list of webcasters who, because they don't feel they can manage webcasting royalties in a viable business, have decided that it's in their best interests to silence their streams. (We thank them for their hard work and dedication to their audiences and the industry, and wish them luck in their future endeavors...)
	All80s.com	AudioCandy.com
BlueMars.org	Celtic Heritage Webradio	Chez Whitey
Entercom stations	Good Time Oldies Radio	Greater Media stations
GrrlRadio	HitRadio.biz	Hot Hit Radio
IdahosCast.com	KDFC/San Francisco	KKDV/San Francisco
KKPT/Little Rock	KOIT/San Francisco	KTRS/St. Louis
KWXY/Cathedral City	Lotus Radio stations	McClure stations
Minion Radio	MonkeyRadio.org	MYNDFK.com
NetRockRadio.com	NextMedia stations	Perkigoth.com
Powerrocks.com	Progrock.com	RadioBoston.com
RadioCentral.com	Radio Free Akron	Radio Free BD
Radio Free Tiny Pineapple	RadioMaxMusic	RKNA: Aural Arcana
SavageRockRadio.com	Simmons Media stations	SomaFM.com
StarDogRadio.com	TagsTrance.com	The City Radio
therockfm.com	The Zoo	WAAF/Worcester
WCKW/La Place	WLUP/Chicago	WMMR/Philadelphia
WOVRadio.com	WYYB/Phoenix	Yahoo! Radio stations
Have we missed others? Use the feedback form above or e-mail us here.