- It's a "stealth bill," because it is not going to the Committee on the Judiciarywhere copyright-related legislation is ordinarily handledbut to the Committee on Energy and Commerce;
- The bill tries to hide its purpose under an exception:
[17 U.S.C. § 342(c)] The adoption of any digital audio regulations pursuant to this section (3) shall not be inconsistent with the customary use of broadcast content by consumers to the extent such use is consistent with the purposes of this act and other applicable law.
So, then, what does the bill do? I'm glad you asked:
- The operative language gives the FCC the authority to issue and enforce regulations for both earthbound and satellite digital radio requiring that:
(A) all technologies necessary to make transmission and reception devices capable of receiving satellite digital audio radio transmissions are licensed on reasonable and nondiscriminatory terms;
(B) such licenses shall include prohibitions against unauthorized copying and redistribution of transmitted content through the use of a broadcast flag or similar technology, in a manner generally consistent with the purposes of other applicable law; and
(C) licensees of the Commission providing satellite digital audio radio services shall give effect to and comply with such prohibitions.
H.R. 4861, new 47 U.S.C. § 342(a)(1) (earthbound) and (2) (satellite). Even better,
- Performance-rights agencies get to listen in, too.
[17 U.S.C. § 342(e)] Nothing shall preclude or prevent a performing rights organization or a mechanical rights organization, or any entity owned in whole or in part by, or acting on behalf of, such organizations, from monitoring public performances or other uses of copyrighted works contained in such transmissions. The Commission may require that any such organization or entity be given a license on either a gratuitous basis or for a de minimus fee to cover only the reasonable costs to the licensor of providing the license, and on reasonable, non-discriminatory terms, to access and retransmit as necessary any content contained in such transmissions protected by content protection or similar technologies, provided that such licenses are for purposes of carrying out the activities of such organizations or entities in monitoring the public performance or other uses of copyrighted works and that such organizations or entities employ reasonable methods to protect any such content accessed from further distribution.
Nothing like having BMI and ASCAP listen to a little pirate radio, eh?
What I find most disturbing about this bill is not its existence, but its flagrant failure to even acknowledge conflicting statutory provisions that already exist. For example, this seems to undermine the Audio Home Recording Act (even as amended with digitization restrictions) and all of the legislative history relating to it. The ABFLA largely repeats § 1002's prohibitions in slightly more detail… and transfers jurisdiction to an agency that has repeatedly proven the poster child for "agency capture." On the other hand, it also flies directly in the face of § 1008's safe harbor.
As disturbing as that is, I find more troubling the potential implications for the first sale doctrine. The problem is a subtle one. The first sale doctrine, combined with the Audio Home Recording Act, implies that mere possession of a copy is not, and never can be, an infringement as to material copied by an authorized receiver from a broadcast. (It might be an infringement if the copymaker is not an authorized receiverfor example, uses an unauthorized black box to decrypt a signal.) Infringement does not occur until there is an unauthorized attempt to "sell or otherwise dispose of" that copy… and not always then. (Unfortunately, section 109 is a collection of cascading exceptions, and remains somewhat ambiguous.)
I suppose you can't blame them for trying. Well, I guess you can, but that's for another time.