Nick Dynice

I reported that I e-mail Senator Feinstein on my concerns with the Perform Act. Senator Feinstein has responded.

February 1, 2007

Mr. Nicholas Dynice

Dear Mr. Dynice:

Thank you for writing to me about the Platform Equality and Remedies for Rights-holders in Music (PERFORM) Act. I appreciate hearing from you.

I believe that our nation’s intellectual property is vitally important and needs to be protected. In fact, the promotion of the creative process is so important that our Founding Fathers gave Congress the express authority to protect it in the U.S. Constitution. Still, we must ensure that any protection afforded to intellectual property is also balanced and fair to all who are affected by it.

The PERFORM Act, which I introduced with Senators Lindsey Graham (R-SC) and Bill Frist (R-TN), would require satellite, cable and Internet broadcasters to pay fair market value for the performance of digital music. Currently, these providers are treated differently and pay different rates even though, as technology advances, their services have become increasingly similar. Additionally, the bill would require the use of readily-available, cost-effective, and feasible technology to prevent music theft.

As such, the PERFORM Act would help strike a balance between the promotion of technological advances in digital music delivery systems and the protection of, and fair compensation for, the intellectual property of artists and musicians.

The PERFORM Act has received the support of various music, artist, and songwriter groups, as well as digital music service providers. However, let me say, I believe the bill as it was introduced is the beginning of the legislative process; and while there may be disagreements over how to strike the proper balance on these difficult issues, I am certainly open to a robust dialogue. Please know that as the legislation moves through the process, I will be sure to keep your views in mind.

Again, thank you for writing. If you should have any further questions or comments in the future, please do not hesitate to call my Washington, DC staff at (202) 224-3841.

Sincerely yours,
Dianne Feinstein
United States Senator

http://feinstein.senate.gov

My response:

[The Perform Act] would require satellite, cable and Internet broadcasters to pay fair market value for the performance of digital music. Currently, these providers are treated differently and pay different rates even though, as technology advances, their services have become increasingly similar.

I have no problem with requiring similar compensation scales for the various types of paid music service as long as it does not require customers to pay even more for services they are currently receiving and does not unjustly hurt innovative American companies such as Sirius Radio or XM Radio. We should not punish innovators at the expense of dying business models such as the recording industry’s who’s business models is due for massive restructuring in light of this new technology and the music end users’ mode of consumption. We only need to look back at the railroad industry’s lobbying to produce the 1887 Interstate Commerce Act (which created a price fixing railroad cartel), to find that regulating innovation with law and not with open markets can have mixed results.

Additionally, the bill would require the use of readily-available, cost-effective, and feasible technology to prevent music theft.

I do not believe measure that use law and technology to prevent theft of music is worth the inconvenience the end users must endure. Furthermore, the music business has changed so drastically, that it is no longer possible and even futile to use resources (tax payer’s dollars) to fight it. The music industry is scrambling to figure out what to do, and has tagged Mrs. Feinstein as the savior of their defunct business model. The value of music recordings is less and less in charging for a recording, but in delivering an experience. The Perform Act seeks to make the music experience for paying customers worse and more difficult simply to to appease the more powerful and more wealthy music industry.

As such, the PERFORM Act would help strike a balance between the promotion of technological advances in digital music delivery systems and the protection of, and fair compensation for, the intellectual property of artists and musicians.

It has been revealed that organizations such as the RIAA do not have the artists’ best interest in mind. They seek to pay artists even less than they do now, blaming piracy while simultaneously reaping the benefits of new licensing opportunities such as ringtones, satellite radio, and video game music.

The PERFORM Act has received the support of various music, artist, and songwriter groups, as well as digital music service providers.

Please point me to the artist and songwriter groups who support the Perform Act. In an internet search for “Perform Act Supporters” or “supports the Perform Act” I find zero results. I could only find evidence of outspoken and progressive artists and record labels such as Canada’s Nettwerk Records who oppose rhetoric such as the one proposed by the Perform Act.

If you have not yet done so, take action here at EFF.org. You can get the text only version of my counter arguments here.