Congressional interest in serious reform of music licensing is palpable. On Tuesday, the Senate IP subcommittee held a Section 115 reform hearing. The House IP subcommittee held its second hearing on the subject on June 21st. (March 11, 2004, was the first House hearing). On May 11th of this year the House also held a hearing on licensing by ASCAP, BMI, and SESAC. On April 6th of this year, the House held a hearing on "digital interoperability," i.e., porting music between different types of services and devices. On July 15, 2004, the House held a hearing on Internet streaming. These oversight (that is non-legislative) hearings also come on the heels of a considerable amount of time spent by House subcommittee IP chair Lamar Smith in roundtable meetings with industry representatives and by the Copyright Office in trying to develop a workable licensing scheme for music on the Internet, efforts that have so far not borne fruit.
Congress does not spend this much time on issues it does not intend to deal with, though, and Congressional IP leaders have indicated the question is not whether a reform is required and will take place, but what it will consist of. A wholesale reform is long overdue. The present system, hearkening back to the 1909 Act is broke and can't be fixed. Digital distribution has wiped out distinctions which previously supported, needlessly, separate licensing schemes and business models. The relationship between the performance right, the copying right as implicated by buffering and caching, and the distribution right no longer hold up, and certainly cannot justify the type of separate payments that have impeded online licensing.
What is needed at the outset is a visionary idea for how an ideal system should work. Legislation should then be drafted and introduced that would make that scheme law. After that comes the hard part: exercising the political muscle to get the scheme through. Due to the way IP legislation is processed, especially in the Senate via unanimous consent, serious compromises will be made along the way and at the end. But if we start out with only what industry groups collectively will agree to, the final product may fall far short of the objective of meaningful reform. I understand the contrary approach: get a solid agreement and then start the legislative process, but to me, that cedes too much control to the private sector. Committee chairs and ranking minority members can knock heads together and the threat of a pending bill going through can clarify thinking.
The time to get involved is now. The beginning of a session is a time for oversight hearings and study. That is the current phase. The second session, 2006, is when the legislative part begins in earnest and the rubber begins to meet the road. But to jockey at the end, your car needs to be in the race during the starter trials.