Hollywood Steps Up Its Assault on the Net While Webcasting Death March Claims KPIG

by Doc Searls

On July 17, I asked “Why Are So Many Internet Radio Stations Still on the Air?” It was only one week after the Final Determination by the Librarian of Congress had become law--a law that was clearly a death sentence for internet radio in the United States. At the time, few stations had quit broadcasting, and there was little sign that any had plans to cease operations.

That changed the next day when KPIG pulled its live signals off the Web. KPIG was the first commercial radio station to broadcast on the Web. After more than seven years on the air, it had become one of the most popular webcasts in the world (and one that was almost entirely Linux-based). Suddenly it was gone. From there the news got worse. All over the country, webcasts were dropping like bad packets. The casualty list went bubonic, becoming too long and growing too fast to count.

But Bill Goldsmith wasn't ready to throw in the towel—at least not yet. Bill is the hacker-in-chief at KPIG and the proprietor of his own popular internet station, Radio Paradise. He is also the only webcaster whose extensive automated record-keeping system (based entirely on free and open-source software) approaches the level of detail required of webcasters under the new copyright law. Since Bill is also a veteran broadcaster with a highly successful on-air station (KPIG makes money and kicks butt in the ratings), he's in a better position than anybody else on earth to advocate the webcasters' case both to lawmakers and copyright holders.

In news stories about the internet radio kill-off, Bill had been publicly remarking about negotiations with “copyright holders”, without giving any more details. When I contacted him early last week, he said he was optimistic about those negotiations and that we should know something more on Thursday. I wrote a story without an ending on Wednesday, in my SuitWatch newsletter. And the next day, right on schedule, the good news came in: Representatives Rick Boucher (D-VA), George Nethercutt (R-WA) and Jay Inslee (D-WA) had just introduced the Internet Radio Fairness Act (IRFA). The bill, H.R. 5285, would “amend title 17, United States Code, with respect to royalty fees for webcasting, and for other purposes.” Those fees were determined by CARP (Copyright Arbitration and Royalty Panel) in compliance with the Digital Millennium Copyright Act (DMCA). Here's what the three men said in a joint press release published on Inslee's site:

Inslee: “Congress should support creative and innovative uses for new technology, not drive small web radio broadcasters out of business with huge fees. We need to refine the current law on digital technology quickly, before more small web radio broadcasters are forced out of business. Changing the standard for setting royalty rates is crucial to the survival of this innovative sector. We seek a balance between just compensation and internet development. This process must be fair but not free.”

Nethercutt: “No one wins under the current CARP standard—webcasters will close shop, consumers lose access to a wide selection of programming, and copyright holders collect nothing. Our legislation protects small businesses from the onerous CARP ruling, ensuring the continuation of webcasting and, incidentally, creating a long-term revenue stream for copyright holders.”

Boucher: “Unfortunately, both the CARP and the Librarian of Congress were working under a flawed law that has produced a royalty rate that harms not only the hundreds of webcasters that have already shut down operations, but also internet users seeking innovative music programming and artists seeking alternative avenues through which to promote their music.”

Later I learned from Bill Goldsmith that the IRFA introduction was purely coincidental. He had nothing to do with it. His negotiations were with the victors in the CARP battle: the RIAA. I asked him what he thought about IRFA, about the negotiations with the RIAA and whether he would consider taking Radio Paradise offshore if talks failed. Here is his reply:

The most important thing that the Boucher bill would accomplish is an important reform of the CARP process itself: facilitating participation by small businesses and losing the “willing buyer-willing seller” model. That's what led the previous CARP to settle on the wildly atypical Yahoo-RIAA agreement as a model for the compulsory license.

It probably would not protect KPIG as presently worded, because KPIG is owned by a corporation with revenues in excess of $6 million per year.

Personally, I doubt that the bill will pass, and it certainly won't pass in time to solve the present crisis. Radio Paradise is presently involved in negotiations (along with several other independent webcasters) with the RIAA to try to strike a compromise. It looks like that may happen well before any legislative remedy could be applied.

As for RP going offshore, the CARP rates are only a relatively small factor influencing our decision there. Though the idea of being able to put this entire issue behind me is very attractive.

Bill's betting line on IRFA is substantiated by the fact that two of IRFA's three congressional authors say nothing about the bill on their web sites (Inslee is the only one who appears interested). THOMAS, a web site built to record every piece of legislation in the congressional mill, also appears to know nothing about H.R. 5285.

Is it real? One has to wonder. We've fallen for false hopes before. What turned them false was the tide of pro-Hollywood thinking that began flowing through Congress long before it carried the DMCA into copyright law in 1998. As Larry Lessig said in his keynote at OSCon last week, we—the Free Software, Open Source and pro-Internet communities—are losing the argument. The Internet, which grew almost entirely outside the regulatory environment, is being pulled inside, not only in the US but all over the world. In May 2001 the European Union Copyright Directive (EUCD) followed the US lead in extending copyright terms and fair-use restrictions. We like to say the Net interprets censorship as damage and routes around it, but in what decade? Tell that to the guys on this list here. Many (probably most) of them ran on Linux.

This pro-Hollywood bias in Congress runs so deep that even legislators who think they're being fair still operate like sock puppets for Jack Valenti. Take the case of Senator Harry Reed of Nevada. In response to a helpful suggestion from Tom Poe, who runs Open Studios, a community-based, open-source, free recording studio in Reno, the Senator sent a reply in Jack Valenti's own handwriting (the highlights are mine):

Dear Mr. Poe:

Thank you for contacting me to express your concerns about the intellectual property rights and the public domain. I appreciate hearing from you.

I understand your concerns about ensuring that. This issue is very controversial because Congress must protect intellectual property rights while still allowing ordinary Internet users to have access to public domain content. I appreciate hearing your suggestion for a “tag” system. I am carefully reviewing a number of proposals to address this issue, and as I do so, I will keep your views in mind.

Again, thank you for taking the time to share your thoughts with me. For more information about my work for Nevada, my role in the United States Senate Leadership or to subscribe to regular e-mail updates on the issues that interest you, please visit my web site at http://reid.senate.gov. I look forward to hearing from you in the near future.

My best wishes to you.Sincerely,HARRY REIDUnited States Senator

Look at the caste system implied by the Senator's wording:

  • What matters most are intellectual property rights.

  • The Internet's only important content is protected property.

  • That property must be excluded from the public domain.

  • The public domain is something that exists only for “ordinary internet users” who only should have “access” to it.

Well, what about our friends in the big technology companies? Don't they have some influence in Congress too? The sad answer is that they're conflicted at best. At worst, they're on Hollywood's side. This became clear last week at OSCon, where Bruce Perens planned to demonstrate the DeCSS software that lets Linux users play DVDs but was developed outside the auspices of the consumer electronics cartel. His Friday session was billed this way:

Digital Rights Management - How Will It Affect Linux and Free Software?

Bruce Perens

Track: Emerging Topics

Date: Friday, July 26

Time: 2:30pm - 3:15pm

Location: Grande

Ballroom B

Bruce Perens demonstrates digital rights management systems and their circumventions, and covers how the underlying technology works. How will we be able to use DRM-protected media? What political and technical problems does it present for Linux and Free Software?

We got the answer to the title question when Martin Fink, Bruce's boss at Hewlett-Packard, stopped the proceedings in their tracks. “I have a thing about my employees going to jail”, Fink told the crowd before Bruce's talk, “and I don't want Bruce to go to jail. Hopefully he'll thank me for that one day.”

“Some of you came here to see me taken away in chains”, Bruce told the session. “But that isn't going to happen.” No, only metaphorically. “Obviously, I could still do it...but that would damage HP's Linux program, which would probably be a bad idea.”

Before Bruce spoke, Fink explained HP's position on the DMCA. On the one hand, he said, “We do understand that there are aspects of the DMCA that are not favorable to the Open Source community.” On the other hand (the one with the chains), he said “the content producers have a right to get paid for their content.”

As if Linux users don't buy DVDs.

HP's stripes became clearer yesterday, when Declan McCullagh reported that HP invoked the DMCA in its threat to sue researchers who publicized a bug in HP's Tru64 UNIX operating system. In response, Bruce posted this on his web site:

Hot Topic:9:46 P.M. PST, Tuesday July 30:Everyone's after me about the way HP is alleged to have used DMCA to intimidate someone who reported a security flaw in the Tru64 OS. If it's true, obviously I will have some criticism for HP management. When I went to work there, I negotiated for the right to criticize HP publicly, when necessary. This might be one of those times. Give me a little time to investigate.

Credit where due: it takes a certain kind of bravery to labor in the belly of the beast. That goes for congressmen as well as hackers like Bruce. But like geeks in the corporations that employ them, the congressional good guys are in the minority, and they are not matching their opponents move-for-move. On July 19, Sen. Ernest Hollings sent a letter to FCC Chairman Michael Powell urging the adoption of a “broadcast flag” that would resist copying of digital content intended for broadcast and aid in the prosecution of copying violators. (Here's the EFF's take on the issue.) On the same day, Senators Tauzin and Dingel sent a joint letter of their own making the same request. And on July 25, Rep. Howard Berman (D-CA), the representative from the part of Los Angeles where Disney (the top Berman contributor) makes its home, previewed legislation intended to sanction “electronic countermeasures”--what CNET calls “high tech attacks”--against peer-to-peer trafficking in copyrighted “content”.

In the San Jose Mercury News, columnist Dan Gillmor wrote this in “Hacking, hijacking our rights”:

If you or I asked Congress for permission to legally hack other people's computers, we'd be laughed off Capitol Hill. Then we'd be investigated by the FBI and every other agency concerned with criminal violations of privacy and security.

Then again, you and I aren't part of the movie and music business. We aren't as powerful as an industry that knows no bounds in its paranoia and greed, a cartel that boasts enough money and public-relations talent to turn Congress into a marionette.

When I asked a Hollywood-connected friend of mine how the Berman bill was going down with the geeks in the industry, I got back this e-mail:

The entertainment geeks think “Berman is a complete money-grubbing, technically illiterate idiot.” (A direct quote from an undisclosed source.) Other reliable inside sources said the reason Berman sponsored the bill was because he “wanted the money” (not needed it) and was running unopposed. He thought the bill would endear him to the big money-donating, studio types in the neighborhood. However, he was clueless about how it would divide the voters in the district. Remember the San Fernando Valley has as many technical people as creative types. Talk about the Hatfields and the McCoy's!

The best comment came from a close friend of mine who said, “The talent-types in entertainment community are completely stupid about the effects of all these laws. Talent is normally pretty brainless about how things really work. However, because they are the pretty faces who can get the camera time on-air, they get heard before we techies get the time of day. It will be a pretty damn big wake-up call if these laws go through—and they can't get their cheap indie-productions done on a shoestring for an f'in tax big write-off during their next summer hiatus!”

Many are saying if the law goes through—they are leaving the business.

Publicly, we are hearing almost nothing from our allies in Hollywood. One welcome exception is Ken Layne, who wrote this:

Here's the fun part from this AP story:

Records show [Howard L.] Berman received at least $186,891 from the entertainment industry during the 2001-02 election cycle, including $31,000 from the Walt Disney Co. and $28,050 from AOL-Time Warner Inc.

Howie wants to “secretly hack into consumers' computers or knock them off-line entirely if they are caught downloading copyrighted material”, says the AP. Help this LA Valley whore by writing to his DC office. He's an ugly hooker but that doesn't keep him from taking the money. After all, he knows how to turn a trick.

Here's the e-mail: [email protected]. Let Howie know how you feel about his lips being wrapped around the Disney/AOL Time-Warner teat.

We still live in a democracy. That means we—the ones who know what it means to live and work in freedom and know why the Internet was built to serve those same purposes—have many more strings to our elected representatives than any company, or any interest group, no matter how well-connected they may be. Are we going to pull them?

The other side's purpose is plain. They want to turn the entire world into an extension of Hollywood, where nothing happens until leagues of lawyers “clear rights” to every imaginable piece of intellectual property that might show up in a movie, a musical recording or some other “content” that will flow from a few huge producers to millions of “consumers” through government-regulated and industry-controlled distribution pipes. They want to tear up the Internet's commons and replace it with the same cartelized piping system that controls television, movie distribution and commercial radio.

There's lots we can do. Here are a few links to help get us started:

Electronic Frontier Foundation

Free Software Foundation

Open Source Initiative

American Open Technology Consortium

GeekPAC

Creative Commons

Save Our Streams

Save Internet Radio.org

You can also fax your legislator, expressing your support for the Internet Radio Fairness Act.

Doc Searls ([email protected]) is senior editor of Linux Journal. His opinions are his own.

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