On Tuesday, April 12 join us in Washington for a DC Policy Day.  This will be like a one-day version of our Policy Summit, but with a laser-beam focus on four issues that are emerging in the Courts, Congress and at the Copyright Office.  By bringing together key stakeholders – musicians, advocates, policymakers, technologists, academics – we will once again generate a meaningful, well-balanced discussion on the issues that will impact musicians and the music community in 2005 and beyond.

The Program
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Over the course of the day, experts representing a wide range of perspectives will discuss and debate four emerging policy issues:

• Digital Audio Broadcasting and the Future of Radio
• Low Power FM and Community Voices
• Health Insurance and Musicians
• Copyright in the Courts and Congress

…all with a focus squarely on their impact on musicians, performers, songwriters, and citizens. For detailed descriptions of the panels and a day schedule.

Stellar panelists already confirmed!
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FCC Commissioner Jonathan Adelstein
Claudia Bach, AdvisArts Consulting
Ann Chaitovitz, National Director of Sound Recordings, AFTRA
Jeffrey Cunard, Partner, Debevoise & Plimpton, LLP
Jim Griffin, CEO, Cherry Lane Digital
Peter Jenner, manager and Secretary General, Intl Music Managers’ Forum
Alex Maiolo, Lee-Moore Insurance
Margot Nassau, Royalties and Licensing Manager, Smithsonian Folkways
Hannah Sassaman, Prometheus Radio Project
Jule Sigall, Associate Register for Policy & International Affairs, US Copyright Office
John Simson, Executive Director, SoundExchange
Gigi Sohn, President, Public Knowledge

…with many more invites to be confirmed.

Space is limited, so reserve your seat now
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This event is going to be held at the Barbara Jordan Conference Center, which is on the second floor of the Kaiser Family Foundation Public Affairs Center at 1330 G Street NW, Washington, DC. This is just a half-block from the Metro Center subway stop, and easily accessible by cab. Directions here

The room seats about 150 people, so register now to reserve your space.
Suggested donation: $25

Scholarships Available for Working Musicians and Students
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One of the unique aspects of our events is our determination to involve artists, both as performers and as active policy participants. We urge all working musicians to join us for this event. Because of the size of the room, the number of scholarships is limited, so go here to apply.

Webcasting in the Works
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We are also making arrangements for this to be streamed in real time over the web and archived on the web for post-event viewing. Stay tuned for details!

Join Us
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FMC continues to bring the best and brightest people working in music, law, policy and technology together to discuss the most critical issues impacting our community and reframe these complicated questions to benefit musicians and citizens. Don’t forget to register now

FMC is also proud to announce that we are working with the prestigious Tribeca Film Festival to produce a panel on the connection between film and music.

This is the fourth annual Tribeca Film Festival, co-founded by Robert De Niro, Jane Rosenthal and Craig Hatkoff. Last year’s Festival included over 250 films from 42 countries, as well as panel discussions, filmmaker events, gala premieres of major studio releases, the Family Festival, a music concert at Battery Park, and many other highlights.

Our panel will discuss the issues at the intersection of music and film. Immediately following the panel there will be an ASCAP Songwriter’s Café in the lower level of the Knitting Factory.

Please plan on joining us in New York City for this special event!

Wednesday, April 27, 2005
1:00 PM
Knitting Factory, 74 Leonard Street, New York City

Tickets for this panel will be handled by Tribeca Film Festival.

…but we will also post details about this event as it develops on our website. More info to follow!

In December, American University professors Pat Aufderheide and Peter Jaszi released “Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers.” The study explores the problems that documentary filmmakers face in getting and controlling rights for the copyrighted works used in their films and the consequences for cultural creativity.

The report includes excerpts from interviews with dozens of documentary filmmakers in which the filmmakers explain the myriad problems associated with clearing the rights for sound clips, video, songs, and TV footage used in their films. In some cases, the cost of licensing a clip of music – even the smallest snippet – can be thousands of dollars. The filmmakers note that the cost of licensing can consume a vast majority of their film’s budget and hours of time, but that without the proper clearances, distributors or cable/TV networks will not pick up the film.

The report also articulates the longer-term problems with rights clearance. For example, Eyes on the Prize is an award-winning documentary series on the Civil Rights Movement. The documentary has been commercially unavailable for the past 10 years because many of the licenses that were acquired in the mid-1980s have now expired. There is a scene where a group of people sings Happy Birthday to Martin Luther King, Jr. Happy Birthday is under copyright and the owners demand licensing fees for its use in any film. Originally Eyes on the Prize secured a short-term license for use of that song, but that, along with other sample licenses, has expired.

Since the release of this report and the subsequent focus on the purgatory status of Eyes on the Prize, this licensing issue has taken on a new, higher profile. Downhill Battle created a civil disobedience campaign called “Eyes on the Screen” that encouraged folks to download a bittorrent version of the documentary and watch it during Black History Month. However, their action was protested quickly by Blackside Productions, the documentary’s production company, which argued that they had no “fair use” claim to distributing the film in such a way. Despite this, some in the civil rights movement have supported Downhill Battle’s efforts. Lawrence Guyot, former leader of the Mississippi Freedom Democratic Party said: "I would call upon everyone who has access to ‘Eyes on the Prize’ to openly violate any and all laws regarding its showing."

While this particular legal battle continues, so do ongoing questions about how to balance the needs of a creative community – filmmakers, documentarians – against the rights of creators to control the use of and generate revenues from their works. “Untold Stories” suggests that facilitating the clearance process would reduce costs and encourage creative works, as well as creating a way for filmmakers to share “best practices” on these issues. The report also urges a remedy to dealing with “orphan works” older photos, music, historic advertising art whose ownership is unknown, something that the US Copyright Office has on its radar right now. This is an eye-opening report that is worth reading to understand the complex nature of the licensing process that permeates the film, TV and music industries.

“Untold Stories”: http://centerforsocialmedia.org/rock/index.htm
Downhill Battle’s Eyes on the Screen: http://www.downhillbattle.org/eyes/
Well-articulated opposition to Downhill Battle’s campaign from the nephew of the producer of Eyes on the Prize http://www.sharp-tools.net/archives/000191.html

Putting Eyeballs on Copyright Law
Veterans of the civil rights movement convene with copyright reform activists for a screening of Eyes on the Prize. Those gathered say corporations that control copyrights should not control the dissemination of history.
Katie Dean, Wired, February 10, 2005

Eyes on the Prize Hits P2P
By Katie Dean, Wired, January 27, 2005

A Struggle for Rights
Eyes on the Prize mired in money battle
By DeNeen L. Brown and Hamil R. Harris, Washington Post, January 17, 2005

Bleary Days for Eyes on the Prize
Eyes on the Prize, the landmark documentary on the civil rights movement, is no longer broadcast or sold new in the United States. It’s illegal.
By Katie Dean, Wired News, December 22, 2004

Copyrights Keep TV Shows off DVD
WKRP in Cincinnati rocked America’s TV screens when it was on the air, but it will probably never be released on DVD because of prohibitive music-licensing fees. It’s not alone.
By Katie Dean, Wired News, March 1,2005

On February 16, 2005, the House of Representatives overwhelmingly passed legislation that sharply raises fines on TV and radio stations and entertainers who violate decency limits on air. Until now, the penalty had been $32,000 for a station and $11,000 for a performer. That has now been lifted to $500,000 for the station and the performer.

In good news for artists, at the urging of AFTRA, AFM and other recording artist groups, language was added to the House bill to create fairer standards for fines against performers. It requires the FCC to hand out a fine only if a performer “willingly” and “intentionally” utters indecent or profane language. The FCC is also to take into account the “financial impact” on a performer who is fined and their ability to pay.

While this does not water down the size of the fines or diminish the chilling effect that this legislation will have on speech in general, the recent amendments at least protect musicians and other performers from fines that might have resulted in, say, a song with an expletive being played on a radio station – something that the recording artist would have no control over. It also recognizes that performers – the vast majority of them, in fact – would not be able to pay a $500,000 fine, and that the FCC must take ability to pay into consideration.

Now a similar indecency bill has been introduced in the Senate, but unlike the House version, the Senate version of the bill does not contain the fines on performers provision.

On March 9, FMC sent a letter to key Senators expressing our concerns about S. 193, the Broadcast Decency
Enforcement Act of 2005. The letter articulates our belief that there are serious unintended consequences to this legislation which may be borne particularly hard by non-commercial broadcasters and performers. Individual performers who have no control over the broadcast airwaves may be fined for programming actions out of their control. Non-commercial stations may self-censor and not air important political or controversial topics for fear of fines. Entire genres of music may be boycotted for fear of being labeled indecent. We also urged the Senate to not impose fines on performers.

Please read FMC’s letter here.

House Approves Modified Indecency Bill
In an overwhelming bipartisan show of support for tougher indecency fine penalties, the House of Representatives passed a modified Broadcast Decency Enforcement Act, H.R. 310, by a vote of 389 to 38.
By Bill Holland, Billboard.com, February 16, 2005

As reported in the last newsletter, on February 8 the FCC hosted a panel discussion on the status of Low Power FM where current LPFM licensees spoke about the successes and challenges they’ve faced with their stations.

In conjunction with this 5th anniversary of LPFM, Senators McCain, Leahy, and Cantwell introduced the Local Community Radio Act of 2005 – legislation to expand the service into more populated and urban areas.

FMC supports the passage of the Local Community Radio Act. The expansion of LPFM would assist in bringing localism, diversity, and competition back to the public airwaves. As we look towards transitioning to digital audio broadcasting, it is important to stress the value of LPFM.

Low Power Movement Makes Waves
Sens. McCain, Maria Cantwell and Patrick Leahy introduce the Local Community Radio Act, which would abolish the Congressionally-mandated third-adjacent channel protection full-power radio broadcasters currently have against low power FMs.
Rick Karr, NPR, February 9, 2005

McCain Introduces Low Power FM Legislation
On the fifth anniversary of a Federal Communications Commission rulemaking that authorized the creation of the Low Power FM radio service, a trio of senators introduced a bill that would enable the FCC to license scores more LPFM stations by eliminating third adjacent channel protections.
By Paul Heine, Billboard Radio Monitor, February 8, 2005

In the last newsletter we talked about Bridgeport v Dimension Films, the case in the Sixth Circuit Court of Appeals regarding de minimis sampling. A note from Marjorie Heins from the Free Expression Policy Project corrected us on the status of the case. It has not been appealed to the Supreme Court as we wrote; the January 20 amicus brief filed by the Brennan Center for Justice and Electronic Frontier Foundation urges the court to reverse their original ruling and reinstate the de minimis rule.

The Brennan/EFF brief argues that the de minimis rule is a longstanding and essential component of all copyright law, including sound recordings. The rule allows artists to sample small amounts from earlier work to produce new creations.

The brief responds to a lawsuit brought by Bridgeport Music and other owners of the song “Get off Your Ass and Jam.” A chord of that song was sampled in the track “100 Miles and Runnin.” A federal district court judge found the borrowing of this chord to be de minimis and not in violation of copyright law. A three-judge panel of the Sixth Circuit Court of Appeals reversed the decision. However, after receiving a petition for rehearing, the judges agreed to reconsider. The Brennan Center/EFF brief urges them to reverse their original ruling and reinstate the de minimis rule.

We’ll let you know about the status of this case as it proceeds. More about it here:
http://www.fepproject.org/press/bridgeport.html

Why Wilco Is the Future of Music
Great things happen when a band and its audience find harmony.
By Lawrence Lessig from Wired magazine, January 2005

GROKSTER CASE
MGM v Grokster will be argued at the Supreme Court on March 29. A copy of the musicians’ amicus brief and all others are available on EFF’s website .

Artists Break With Industry on File Sharing
Some Musicians Say Web Services Can Be Valuable Means of Distribution
By Jonathan Krim, Washington Post, March 1, 2005

Unions Decrying Illegal Downloads Asking High Court for Relief
“Unauthorized free copying and distribution of copyrighted sound recordings and films on the Internet directly harm…creative artists,” the nation’s entertainment unions have told the U.S. Supreme Court.
By Roger Armbrust, Backstage.com, February 10, 2005

COPYRIGHT

RIAA: Mass DAB Copying Is Unfair Use
Abstract: The Recording Industry Association of America told the FCC that it needed to adopt copy-protection measures for digital-audio broadcasting.
By John Eggerton — Broadcasting & Cable, February 11, 2005

Expert Advice: The US Copyright Office’s Rob Kasunic on Internet Law
In the digital environment, where massive infringement is so easy to accomplish with the click of a mouse, enforcement alone is seldom enough to reassure creators."
By Blane Warrene, TechNewsWorld, February 8, 2005

NEW BUSINESS MODELS

Downloading: The Next Generation
[…] "In digital there is a ‘long tail’ of tracks that will sell," Sony’s Hesse said. "There is a great opportunity here to go even deeper in the catalog. People will actually find this stuff." Added EMI’s Cohen, "The whole promise of this unlimited digital shelf is playing itself out." […]
By David McGuire, Washington Post, February 28, 2005

Web Only Album Wins Grammy
Jazz composer Maria Schneider took home a Grammy on Sunday for her album "Concert in the Garden," without selling a single copy in a record store.
By Reuters, February 13, 2005

Artist Earnings and Copyright: A Review of British and German Music Industry Data in the Context of Digital Technology
Digital technologies are often said (1) to enable a qualitatively new engagement with already existing cultural materials (for example through sampling and adaptation); and, (2) to offer a new disintermediated distribution channel to the creator. A review of secondary data on music artists’ earnings and interviews with artists indicate that both ambitions have remained largely unfulfilled. The article discusses to what extent the structure of copyright law is to blame, and sets out a research agenda.
By Martin Kretschmer, First Monday, Issue 10.1

MP3Tunes Shuns Digital Rights Management
MP3tunes.com introduced its digital music service on Wednesday, offering 300,000 songs at 88 cents each from mostly independent and unsigned artists.
By Matt Hines, CNET.com, February 9, 2005

RADIO

Start-ups blur lines between radio, music swapping
Imagine iTunes’ sharing functions available across the public Internet. Net radio’s resurgence pushes technological—and legal—boundaries.
CNET, March 4, 2005

Public Radio Turns Off The Music
Public radio stations in Washington and other cities are dropping classical music from their lineups, replacing it with news and talk shows, especially the increasingly popular offerings from National Public Radio.
By Chris Baker, Washington Times, February 26, 2005

The Resurrection of Indie Radio
FM never sounded so freaking good. How the coming digital boom – and Big Radio’s bottom line — is driving the new golden age of multichannel, microniche broadcasting.
By Charles C. Mann from Wired magazine, February 2005

How to Be an IPod Radio Star
He’s gone from MTV to MP3, and now he’s leading a grass-roots rebellion called podcasting. Why amateurs may soon rule the airwaves (begin download now).
By Annalee Newitz from Wired magazine, February 2005

Future of Radio Is Downloadable
A new station in Berlin is attempting to redefine music broadcasting for the interconnected internet age. The key will be MP3s and cell phones, not the old-fashioned radio.
By Jason Walsh, Wired, February 15, 2005

The Hot 100 Is Going Digital
For the first time, Billboard magazine will include songs sold by download in its weekly calculation of the nation’s top hits. The change reflects the booming popularity of digital music players like Apple’s iPod, which has accounted for dramatic increases in download sales.
By David Bauder, Salon.com, February 11, 2005

Eliot Spitzer’s Payola Investigation Hits Clear Channel, Entercom, and Infinity
Eliot Spitzer has taken his payola investigation to the next level as radio giants Clear Channel, Entercom and Infinity have received subpoenas in the New York State Attorney General’s ongoing payola probe into the music industry’s promotion practices.
FMBQ, February 18, 2005

For those who will be in Austin, TX sometime in the next two weeks for South by Southwest, FMC’ s Jenny Toomey and Michael Bracy are both speaking on panels. We’d love to see you!

Jenny is moderating the Artists’ Give Advice Panel, with Robyn Hitchcock, Nona Hendryx, Mary Lou Lord, Jon Langford and Todd Snider
Friday, March 18 at 3:30 PM

Michael is on The Shape of Things to Come
Saturday, March 19 12:00 noon

Jenny is also on the Health Care for Musicians panel
Saturday, March 19 1:30 PM

And news about a cool new feature at this year’s SXSW:

SXSW’s Torrent of Free Tunes
The South by Southwest music festival is embracing file sharing and iPods big time. It’s offering more than 750 free MP3s on BitTorrent in an iPod-friendly format.
By Katie Dean, Wired, March 8, 2005

Hello! FMC is offering an unpaid internship in DC for the summer of 2005. This internship is a great opportunity to learn about the issues at intersection of music, technology, law, and policy. We would love someone with practical computer wizardry skills. Please email wendy [at] futureofmusic [dot] org with a resume if you’re interested.

You can always send an email to suggestions [at] futureofmusic [dot] org with your comments.

Thanks as always,

Jenny Toomey
Michael Bracy
Walter McDonough
Brian Zisk
Kristin Thomson
Peter DiCola
Wendy Harman

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