And Tim –
If we move to a system where there are only cash remedies, in essence the government is setting the price for music. I thought copyright was a property right for precisely the opposite reason: we want people to negotiate in the market, not the court room.

Nope. The RIAA is entirely mistaken in its proposition that digital broadcasts pose a greater “piracy threat.” As documented in extensive detail in EFF’s submission to the FCC on this point, there is no credible evidence that digital broadcasts pose a greater threat than analog FM (the content on each is identical by FCC mandate), or cable music services, or any other broadcast source. The quality, the content, the ability to “disaggregate”, and the “capturability” are all effectively the same.

Now the existence of P2P may have increased the risks to copyright owners from all of these broadcast mediums. But there has been no showing that digital radio broadcast is special in this regard.

However, Kristin, I don’t think that it is a lack of a performance royalty for terrestial analog radio in the US that is holding back digital radio. It is the lack of a clear system for licensing copyrights in general for businesses that need them.

One proposal, from the 1930s, was to eliminate “property remedies” in copyright, to be replaced with liability remedies. It’s a proposal worth reconsidering, as it might force more bargaining. If, for example, the only remedy against Napster were damages, we might be closer to a settlement of the war in online music.

Tim is right that the rollout of DAB is much farther along in Europe, UK and Asia than here in the US, but I’d say this is fundamentally less a copyright issue and more a licensing issue.

As mention in other posts, currently the terrestrial broadcasters in the US do not pay a performance royalty. That means when you here Patsy Cline singing “Crazy” on the AM/FM radio, the songwriter Willie Nelson is paid via ASCAP/BMI, but the performer Patsy is not. But if you hear “Crazy” on XM, Sirius, Music Choice (on cable TV), or on a webcasting station, both Patsy and Willie are paid — Willie by ASCAP/BMI and Patsy by SoundExchange. And to correct what I think Tim was saying in the last sentence of his post, this money is not paid to the RIAA. 45 percent of the SoundExchange royalty goes DIRECTLY to the performer — not filtered through the record label where it might be subject to “creative accounting” or posted against back debts. 50 percent goes to the record label, which may or MAY NOT be an RIAA-member label. (Remember that there are thousands of independent record labels that are also participants in the music industry in the US). The remaining 5 percent goes to back-up performers via a fund administered by AFM/AFTRA.

The terrestrial broadcasters in the US have avoided paying this performance royalty for decades because they have said that the record labels and the performers have benefited from the promotional value of radio airplay, which increases record sales. But in the Europe and UK, there is a performance royalty on terrestrial radio. I assume that this has had an impact on the rollout of DAB since there are fewer issues related to establishing content protection controls since performers, songwriters, labels, and creators can not only benefit from the rollout of a better version of radio that allows for more programming, a better sounding signal but also can see this as a reliable (albiet small) revenue stream.

This has become a copyright control issue in the minds of many because a performance license doesn’t apply to terrestrial broadcasters in the US. So if this DAB rollout could include an effort to harmonize the performance royalty in the US, not only across media forms (webcasting, satellite radio, etc.) but also get the US in line with UK and Europe as far as payments to artists, some of these copyright control/broadcast flag issues might subside, and we’d all be able to benefit from the emergence of DAB.

FMC filed comments and reply comments about the transition to DAB in the FCC proceeding, which are downloadable from this page http://www.futureofmusic.org/news/briefs.cfm .

The world can have 7 billion radio stations but the old money interest do not want that.

“The issues holding back digital radio right now aren�t copyright related. “

LOL! The reason why we cannot move forward is because the old money has to ensure they get paid. Period. Old money broadcasters and old money copyright holders. Admittedly, with some governmental bureaucracy thrown in. However, such bureaucratic sluggishness is partially to be blamed on the lobbyists.

“RIAA is right, after all, that digital broadcasts do pose a greater piracy threat, especially in a world where peer-to-peer continues to thrive.”

Makes absolutely no sense whatsoever. The idea that if one can record a digital song from digital radio will allow one to make that song available on a P2P network is laughable. That song is already available on the P2P networks. I can get on the web right now and download any song I want. The threat to the RIAA is already at 100%. There is no additional threat. Their companies now offer ZERO added value to the equation. Deadmen walking. It’s over. They should just crawl away and die gracefully.

Additionally, the term piracy is again being misused.

United States Code
Title 18. Crimes and Criminal Procedure
Part I. Crimes
Chapter 81. Piracy and Privateering
� 1651. Piracy under law of nations

Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

The crime of piracy, as defined by the law of nations and the Acts of Congress, consisted of robbery or forcible depredation upon the sea. U.S. v. Chapels, C.C.Va.1819, 25 F.Cas. 399, No. 14782.

A blanket license for filesharing would need to bill millions of individuals, or place a tax on all network users, based on some sort of sampling.

So, yes, it is not the technology that’s the problem; but duh. The problem always comes in figuring out how to account for the harms and benefits of new technologies. To focus only on the benefits is unfair to the music industry which has good reason to worry about the harms as well.

And besides, isn’t a blanket license a great compromise from your perspective? Isn’t that the likely result here, as Fred notes above?