IRFA

Internet Radio Fairness Act would spur innovation

The following first appeared as a Billboard.biz Guest Post I wrote as founder/CEO of AccuRadio and a member of the Small Webcaster Alliance. It appeared on Tuesday, the eve of yesterday's subcommittee hearing.

As an Internet radio broadcaster and member of the Small Webcaster Alliance, I've been involved in the issue of copyright royalty rates for Internet radio for many years. And I've seen vividly that the current royalty rate system threatens to strangle the life out of an industry that is providing both choices for consumers and opportunities for musicians.

Both in 2002 and again in 2009, after the U.S. Copyright Office published rate-setting rulings that would have bankrupted all or most Internet radio providers, Congress had to intervene and ask record labels to negotiate a more-workable rate with webcasters.

The resulting rates are still wildly higher than those paid by other forms of digital radio (i.e., satellite radio and cable radio) and have been barely survivable for most webcasters - with many forced to exit the business entirely. Meanwhile, other companies who could spur innovation in Internet radio remain on the sidelines due to concerns over unsustainable royalty rates.

The problem with the current "willing buyer/willing seller" Internet radio standard for rate-setting is that while it is intended to lead to a market-based rate, the fact that the large record labels negotiate as a group means that a true market rate has never actually been determined.

The result has been a nightmare for our industry ever since. Copyright Office decisions have forced webcasters - the ones that were able to remain in business - to pay unreasonably high royalty rates, hindering innovation and growth.

Last year, for example, Pandora paid more than 50% of its revenue in royalty payments and as a result, as seen in their SEC filings, the company has yet to make a profit. And if the leading firm in an industry has trouble breaking even, you may reasonably (and correctly) assume that most other webcasters are struggling even more. (Note that if my Small Webcaster colleagues and I had to pay royalties at the rates determined by the Copyright Royalty Board, most of us would have to pay more than 100% of our revenues in royalties!)

That's why we support the Internet Radio Fairness Act (IRFA). It doesn't set or change royalty rates for Internet radio - it simply modernizes the rate-setting structure in a way that will help create a more viable digital music business for everyone.

To do so, the IRFA would move webcasting to the more-traditional "801(b)" rate-setting standard, which balances the interests of the copyright owners, the copyright users, and the general public. It has been used successfully for decades in most rate-setting determinations, including for other forms of digital radio like satellite radio, cable radio, and even by record labels in cases where they are the copyright users.

The "801(b)" standard is a set of four criteria that Congress typically tells the Copyright Office to use in determining a royalty rate: (1) Maximize the availability of creative works to the public. (2) Insure a fair return for copyright owners and a fair income for copyright users. (3) Reflect relative roles of capital investment, cost, and risk. (4) Minimize the disruptive impact on the industries involved.

The current confusing mix of royalty-rate setting standards for digital radio is result of piecemeal legislation enacted as each new technology was invented. The result is a system significantly out-of-sync with the realities of the 21st century marketplace. It substantially hinders the growth of Internet radio businesses and platforms - and thus hurts consumers, musicians, and innovators.

For the music industry particularly, I believe that a thriving Internet radio industry could be a godsend. Webcasters like Pandora, AccuRadio, and others are already giving significant and valuable amounts of airplay to dozens of genres of music (ranging from bluegrass to EDM), hundreds of independent record labels, and tens of thousands of artists that otherwise would be unable to use the power of radio exposure to build their fan bases.

Passage of the Internet Radio Fairness Act will foster innovation in the industry. It will create jobs, benefit artists by giving them more opportunities to be paid for their work, and benefit consumers by giving them more listening choices.

It's a piece of legislation that every innovator in the music industry should support.

You can see this Guest Post in Billboard.biz here:

http://www.billboard.biz/bbbiz/industry/digital-and-mobile/internet-radi...

Could AM/FM's royalty exemption doom webcasting's hope for relief?

Thursday, November 29, 2012 - 12:40pm

It was clear that many members of the House Judiciary subcommittee weren't interested in hearing about Internet radio's problems during yesterday's hearing (see our coverage here).

[SomaFM's Rusty Hodge has posted audio of the meeting online here. We should also point out that Tom Taylor has excellent and extensive coverage of the hearing in his Tom Taylor Now newsletter here, as does Inside Radio here.]

The meeting was to discuss the Internet Radio Fairness Act legislation intended to bring relief to an industry whose most successful representative remains unprofitable and paying more than 50% of its revenue in music rights. But music industry witnesses and their allies on the subcommittee deftly turned the spotlight elsewhere: the fact that broadcast radio does not have to pay royalties for sound recordings it plays on the air.

The maneuver perhaps revealed just how difficult it will be for IRFA-backers to gain any ground while the "radio royalty" issue remains unresolved in the eyes of the record industry.

In recapping yesterday's House Judiciary subcommittee hearing on the Internet Radio Fairness Act, ArsTechnica concluded:

"Overall, to say Pandora's battle appears to be an uphill one would be a serious understatement. Its main ally is the terrestrial radio industry, which has become a 'bad guy' to many in Congress. And the list of opponents is growing to include not just the entertainment industry but also unions and interest groups, both liberal and conservative... the AFL-CIO, the NAACP, Americans for Tax Reform, and the American Conservative Union all opposed the bill...

"In the meantime, the Internet radio industry—which essentially consists of just one large player—will continue to be a losing bet."

Read Ars Technica's recap (also the source of the boom box photo) here.

From today's early edition: Pandora CEO Kennedy, Hubbard CEO Reese, SoundExchange Pres. Huppe to speak on Capitol Hill

Wednesday, November 28, 2012 - 11:25am

The Internet Radio Fairness Act will get its first exposure in Congress today since its introduction, as the House Judiciary's Subcommittee on Intellectual Propery, Competition, and the Internet will hold a hearing called "Music Licensing Part One: Legislation in the 112th Congress" at 11:30am ET (10:30am CT). You can stream video here.  

IRFA backers contend the bill is necessary to allow Internet radio to more fairly compete against other forms of digital radio (more details here). Joseph Kennedy, Chairman/CEO of leading webcaster Pandora will speak in support of the bill, as will Hubbard Radio President/CEO Bruce Reese, who'll appear on behalf of the National Association of Broadcasters.

Former eMusic COO/CEO and Apple Music Group cofounder David Pakman will also appear. Pakman is now a partner at Internet and digital media investment firm Venrock, and writes the Disruption blog.

Critics of the IRFA say the bill would only result in lower payments to copyright owners and performers. Some support a draft of a bill called the Interim FIRST Act (more here), which may also be discussed in the hearing. Representing copyright owners and the music industry will be producer, songwriter, and recording artist Jimmy Jam (who's also The Recording Academy Chair Emeritus). He'll be joined by SoundExchange president Michael Huppe. Also speaking will be economist Dr. Jeffrey Eisenach, Managing Director/Principal of Navigant Economics.

To get the most out of today's hearing, it may help to have a handle on a couple key concepts:

801(b): That's the section of the Copyright Act (you can read it here) that sets out four important criteria Copyright Judges are required to follow when they decide royalty rates. Paraphrasing, they are:

  • Maximize the availability of creative works to the public;
  • Insure a fair return for copyright owners and a fair income for copyright users;
  • Reflect relative roles of capital investment, cost, and risk, and;
  • Minimize disruptive impact on the industries involved.

"Willing buyer willing seller": This is the standard upon which Internet radio royalties are currently based, as per the 1998 Digital Millennium Copyright Act. With that law, Congress decided the webcast royalty process should eliminate 801(b)'s concern for the public's access to creative works, minimizing disruption, and fairness -- and instead require judges to devise a rate solely on what they think reflects the "fair market value" of the licensed works. That is, what a hypothetical "buyer" would be willing to pay to a hypothetical "seller" (the "buyer" being the licensing service, the seller being the copyright owner) in a free market.

The Internet Radio Fairness Act: The focus of the bill is to move webcast royalty determinations from the "willing buyer willing seller" standard to 801(b), the standard used for determining the royalties paid by Internet radio's two most-similar competitors: satellite radio and cable television radio. (It also happens to be the standard used to determine what record labels pay for the use of copyright song compositions when manufacturing recordings.)

The Interim FIRST Act: Draft legislation that's main focus would be to make all three digital radio platforms (Internet, satellite, and cable radio) use the "willing buyer willing seller" standard in royalty determinations.

Performance royalty: One final note that what will (most likely) be discussed will be the royalties these services pay for the use of copyright sound recordings (as opposed to song compositions). The beneficiaries of this royalty are copyright owners (usually record companies), and recording artists and performers.

We'll have follow-up coverage and analysis of the hearing later today. Please check back.

AM/FM royalty exemption as prominent a topic as IRFA in today's hearing

Wednesday, November 28, 2012 - 11:25am

A House of Representatives Judiciary subcommittee today held a hearing on issues involving the use of copyright sound recordings and the compensation paid to copyright owners and recording artists by various radio platforms. While the focus of the hearing was the recently-introduced Internet Radio Fairness Act -- which concerns royalties webcasters pay -- subcommittee members and some witnesses spent at least as much time talking about broadcast radio's long-time exemption from paying royalties on sound recordings.

(The written testimony of the six hearing witnesses (see today's early story) is available on the Judiciary Committee's website here (the witnesses' names link to pdf files). Follow-up questions from subcommittee members and discussion followed the witnesses' testimonials.)

The Internet Radio Fairness Act (IRFA), among other measures, would require Copyright Royalty Judges, when determining royalties for web radio, to use the same legal standard (known as 801(b)) they use for satellite radio and cable radio royalties. Under current law, CRB judges are instructed to try to set royalties at a "fair market value," using a legal standard known as "willing buyer willing seller."

Many committee members, most notably Rep. John Conyers (D-MI) and Rep. Howard Berman (D-CA), seemed unwilling to consider the terms of the IRFA while broadcasters enjoyed an exemption from paying labels and performers for music. Witnesses Michael Huppe (SoundExchange president) and renowned producer  Jimmy Jam themselves willingly encouraged this line of discussion.

Conyers hoped the discussion would be a "catalyst for formulating" an AM/FM obligation. The outgoing Berman went as far as calling testimony from Hubbard Radio President/CEO Bruce Reese (who also represented the National Association of Broadcasters) "disingenuous" -- for asking for "fairness" for webcast royalties yet not acknowledging an "obligation" to pay labels and performers for over-the-air play.

Venrock investment partner David Pakman (pictured above) testified to the difficult economic climate for standalone webcasters. "We've resisted investing" in digital music "solely because of the state of music licensing," he said, calling it "perilous" and "overburdensome." He said his firm is "skeptical of the profitability of a standalone digital music service," being unable to point to a single profitable standalone Internet radio service. This point returned later, when Rep. Jason Chaffetz (R-UT, who introduced the bill in the House) somewhat heatedly challenged witness Huppe to try to name another successful webcaster.

In regards to IRFA, witness Dr. Jeffrey Eisenach (an economist and principal of Navigant Economics, pictured left) attacked the 801(b) standard as "harmful" to the public since it doens't "maximize the resources" of the marketplace. He testified that 801(b)'s objective to minimize disruption "guarantees webcasters a profit," and that he could find no valid basis in his research for forcing content creators to "subsidize digital music." His solution for Pandora's profitability is simply "to sell more ads."

Pakman, however, challenged the "open market" ideal of the "willing buyer willing seller" standard, in that "we don't have a market." He described the reality of three major record labels as "concentrated" sellers, while Pandora exists largely as one standalone buyer. "Rightsholders should encourage healthy competitive market -- which demands an ecosystem of hundreds or even thousands of licensees."

Joseph Kennedy, Pandora CEO, was pressed -- by both Rep. Sensenbrenner (R-WI) and Rep. Jerrold Nadler (D-NY, who is drafting legislation in opposition to the IRFA, called the Interim FIRST Act) -- as to why Congress has been repeatedly called by webcasters to settle the royalty issue, when it should be handled by the marketplace. Kennedy stressed his company's willingness to live with the deals it willingly entered for past and current rate terms. "But there's unfinished business here," he added. In regards to the upcoming rate-setting for the next term, Kennedy said, "the process is still broken."

Competing royalty bills to come up in next Congress, reports Billboard

Monday, November 26, 2012 - 10:50pm

Word has officially come that the House Judiciary Subcommittee on Intellectual Property, Competition and the Internet will hold its hearing on Internet royalties on Wednesday (as we covered here). The hearing begins at 11:30am ET in the Rayburn Building. The witness list hasn't yet been published (we assume it will be, here).

Billboard.biz reports the Internet Radio Fairness Act (covered in RAIN here) will be re-introduced in Congress next year. It was introduced to this Congress by Reps. Jason Chaffetz (R-UT) and Jared Polis (D-CO) in the House and Sen. Ron Wyden (D-OR) in the Senate. The news source also finds it likely the competing bill, Rep. Jerrold Nadler's (D-NY) Interim FIRST Act (more in RAIN here) will be introduced.

The IRFA will attempt to bring the Internet radio royalty process in line with those for other forms of digital radio (satellite, cable) by requiring the use of the 801(b) standard (more here). Internet radio rates are uniquely determined by trying to replicate a market rate via a standard known as "willing buyer willing seller."

Nadler's Interim FIRST Act would apply "willing buyer willing seller" to satellite and cable radio royalty settings. Additionally, it would require broadcasters to pay a royalty for streaming their online content that would, in effect, "make up for broadcasters not paying a fee when they play artists' songs over the air."

Billboard.biz's coverage is here.

Grover Norquist sides with record industry in opposing Net Radio Fairness legislation

Friday, November 16, 2012 - 11:00am

Opponents of the Internet Radio Fairness Act have a new ally: conservative activist Grover Norquist.

While he complains that the IRFA-proposed move to the "801(b)" standard for Net radio royalty-setting "moves... towards forced below market rates," he's not fan of the status quo either. In a letter to Senate and House Judiciary Members, Norquist gets a shot in at the "willing buyer willing seller standard," when he writes, "There is no way, ultimately, for a legislator to decide what the fair market value of a product or service is."

The 1998 Digital Millennium Copyright Act stipulated that judges determining webcasting royalties attempt to determine the fair market value of music based on what they believe a "willing buyer" and "willing seller" would agree to. Mandating this standard was a significant departure from the more commonly used "801(b)" standard, used for satellite and cable radio (among other applications). The IRFA would move webcasting royalty determinations to 801(b), which supporters say more accurately reflects the public policy goal of copyright law, as it requires judges to make decisions that maximize the availability of creative works to the public, using the concept of "fairness" for both creators and distributors.

"Both the existing and proposed models pick winners and losers, rather than allowing free market negotiations," he wrote.

His call for a completely open market for negotiations between copyright owners and services actually exists: any copyright owner and any service can negotiate individual deals. The "government intervention" against which Norquist rails comes into play only after sides fail to reach terms for an "industry wide" rate.

Read Norquist's letter here. More coverage in The Hill here. H/T to the Digital Libery blog here.

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