Category: Law & Policy

Senate Resolution asks Congress to Promise it will Keep Ignoring Musical Artists

musical artist

A little-known Senate resolution called the Local Radio Freedom Act (LRFA) is a clever move by whoever thought of it. It has no force of law but instead asks Congress to sign a pledge to enshrine an unfair and unfounded policy whereby terrestrial radio broadcasters shall never pay royalties to musical artists. Why? Because that’s how it’s always been.

In copyright law, music generally entails two separately protectable works—the underlying composition and the sound recording. Sound recordings are created by performing artists, and many compositions are naturally recorded by different artists at different times. Quintessential examples include Whitney Houston’s “I Will Always Love You,” and Jeff Buckley’s “Hallelujah,” originally written and performed by Dolly Parton and Leonard Cohen respectively. But if you ever turned up the radio when one of these cover songs came on, you might not know that although Parton and Cohen received royalties, Houston and Buckley did not.

This omission in the royalty scheme has come before Congress many times over many decades, and most Members know the status quo doesn’t make sense. Public performances of musical sound recordings pay artists royalties in every other commercial context, and in every democratic nation in the world, except for American terrestrial broadcast radio. But what is music radio without music?

The answer from the National Association of Broadcasters (NAB), and which is parroted in the LRFA, is that radio “promotes music,” and it does. But that’s only half the story. The other half is that music draws listeners to radio networks, which sell billions of dollars in advertising. Members of Congress know this is the only equitable consideration, yet to watch the last hearing on the issue, one might get the idea that the IP Subcommittee is still at the investigative stage of the decades’ old problem. If Congress seeks an equitable arrangement, it’s in the text of the American Music Fairness Act (AMFA), which was introduced in 2021.

For smaller stations (under $1.5 million/year), the AMFA caps royalties between $10/year to $500/year depending on revenue and status as either a public or private station. For larger stations and networks, rates would be set, as they for the rest of the performance licensing market, by the Copyright Royalty Board (CRB). Under the provisions of AMFA, the CRB must consider station size and revenue when setting rates and must also consider the station’s promotional value to recording artists. It’s hard to imagine how the deal gets more fair than that.

In addition to the half-true “promotion” argument, LRFA also echoes NAB talking points about the many free services radio stations provide to communities—from local news and emergency information to community outreach and charity. The implication is that these services would be curtailed or lost if they had to pay performer royalties, but this claim is neither supported nor well-reasoned. The stations’ good works continue while they pay talk show performers and news reporters—and no doubt, buy coffee and electricity, too.

Notably, when witness Eddie Harrell, Jr., representing the conglomerate Urban One, was asked at the hearing about the CRB, he did not seem to know what it is. This is not to mock Mr. Harrell, but instead to observe that if he was there to claim that his company cannot afford royalties but does not know about the rate-setting court, how does he know what he can’t afford? I think the answer is not that Mr. Harrell is careless or unable to do the homework, but that he anticipates not needing to present those numbers because the NAB has told him to expect that Congress will once again default to the tautological absurdity of “because that’s how it’s always been.”

Members of Congress know it is the large networks and conglomerates lobbying against AMFA and that they are not saying anything new in defense of the status quo. Because this issue has been on and off the table for about eighty years, any reference to further negotiation or study at this point is either a stall tactic or a pocket vote against AMFA. Meanwhile, signing onto LRFA is an explicit statement that, once again, the artists will be ignored right after their representatives tell them how much they are a treasured and respected part of the American tapestry.

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COPIED Act Introduced in the Senate with Focus on Content Provenance

copied act

On July 11, Senators Cantwell, Blackburn, and Heinrich introduced a bill called the Content Origin Protection and Integrity from Edited and Deepfake (COPIED) Media Act. One of many AI related bills in Congress, the heart of COPIED is transparency in artificial intelligence through implementation of content provenance information (CPI). COPIED requires development of industry standards to create “machine-readable information documenting the origin and history of a piece of digital content, such as an image, a video, audio, or text.”

The Commerce Committee press release announcing the bill states endorsement by News/Media Alliance, National Newspaper Association, Rebuild Local News, NAB, SAG-AFTRA, Nashville Songwriters, Recording Academy, RIAA, music publishers, artists, and performers. Senator Heinrich, who sits on the Senate AI Working Group, stated, “I’m proud to support Senator Cantwell’s COPIED Act that will provide the technical tools needed to help crack down on harmful and deceptive AI-generated content and better protect professional journalists and artists from having their content used by AI systems without their consent. Congress needs to step up and pass this legislation to protect the American people.”

In a nutshell, the bill calls for advanced, hard to remove, watermarks (or metadata) which would be permanently attached to digital content. In what sounds like a combination of copyright management information (CMI) and a chain of title concept, the development of CPI would enable tracing and validating the source of digital content with a variety of goals, including mitigation of deepfake or modified news stories and use of protected creative content without permission.

The COPIED Act would require the Under Secretary of Commerce for Standards and Technology to oversee the development and implementation of CPI in collaboration with the Register of Copyrights and the Director of the U.S. Patent and Trademark Office. If passed and effectively implemented, the law would prohibit removal, alteration, or tampering with attached CPI for deceptive or adversarial commercial practices; and one part of Section 6 of the bill begins, “It shall be unlawful for any person, for a commercial purpose, to knowingly use any covered content….” [emphasis added] This focus on use of material with attached CPI will be of greatest interest to creative professionals concerned about the myriad ways in which their work is used without permission for the development and commercialization of GAI.

Of course, there are miles to go before we see if and when this bill makes progress, at which point it may provoke some familiar arm flapping by the Electronic Frontier Foundation (EFF) recycling the same rhetoric it used to complain about digital rights management (DRM) technology. EFF lost its campaign to prove DRM under §1201 of the Copyright Act is unconstitutional, while this bill’s proposal for CPI is more reminiscent of §1202 under which it is unlawful to remove copyright management information (e.g., a watermark) for the purpose of copyright infringement. It strikes me that a similar approach would apply to removal of, or tampering with, content provenance information. After all, if it is designed to be as robust and tamper-proof as the bill projects, this would suggest its removal takes some effort and expertise, which itself implies a purpose that is likely to be unlawful.

Stay tuned. We shall see where this goes, but the aims of the COPIED Act strike me as a well-founded good start.

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SHIELD Act Passes in the Senate

SHIELD

It’s been nearly ten years since I first heard the term “revenge porn” and wrote a speculative post inspired by then Rep. Jackie Speier’s bill to make the act a federal crime. Much has transpired since then, including the obsolescence of the term “revenge porn” and the progress of generative artificial intelligence (GAI), which has already changed the nature of nonconsensual pornography. Legislation is in the works to address GAI used for this purpose, but in the meantime, the Senate on Wednesday finally passed the bill known as the Stopping Harmful Image Exploitation and Limiting Distribution, or SHIELD Act.

If SHIELD becomes law, the conduct of distributing intimate images without permission will be a federal crime with penalties that include fines and prison sentences. This is a game-changer, both pragmatically and culturally—fostering equitable remedies for victims and reasonable deterrents to at least some who might engage in the conduct. Further it signals a more mature relationship to digital life, leaving behind the rhetoric and handwringing that new liabilities for new harms conducted through online platforms will lead to rampant censorship of protected speech.

A decade ago, the phenomenon called “revenge porn” was still relatively new, and there was little general understanding about its potential for causing harm—or why the term itself was a misnomer. Initially, the “revenge” part referred to mostly men lashing out at ex-girlfriends or ex-wives by disclosing intimate images which had originally been shared in private. Distribution included web platforms that solicit and display “revenge porn” where the perpetrator could find a virtual fraternity of anger bros adding degrading, threatening, and rape-themed comments to the unlawfully displayed images. But the term was problematic from a legal standpoint.

Thanks substantially to the work of Dr. Mary Anne Franks and Danielle Keats-Citron, in their capacities as legal scholars and leaders of the Cyber Civil Rights Initiative, legislation at the state and federal level is focused on the act of nonconsensual disclosure, and not the motive per se. Because the motives for disclosing intimate images vary from immature “kicks” to sextortion, it was essential that the cause of action should not be limited solely to an intent to cause harm

SHIELD criminalizes nonconsensual disclosure, either with an intent to cause harm or if harm is caused unintentionally. This includes “…psychological, financial, or reputational harm, to the individual depicted.” As I say, a lot has changed over the last decade, and sadly, there is now a preponderance of evidence that nonconsensual distribution of intimate imagery (NDII) causes a spectrum of harmful results, including professional opportunity and relationship loss, psychological trauma, harassment, threats, physical violence, and suicide. In fact, Cyber Civil Rights Initiative has recently adopted the term Image-Based Sexual Abuse (IBSA) to properly frame the nature of so-called “revenge porn.”

A decade ago, legislation like Rep. Speier’s was met with the predictable criticism that it would sweep too broadly, cause undue censorship online and chill the speech right. In fact, anti-IBSA legislation survived First Amendment challenges in five of the now 49 states that have such laws. In 2022, when the Indiana State Supreme Court upheld that state’s law, Dr. Franks stated, “Indiana is the fifth state supreme court to uphold the constitutionality of criminal prohibitions of image-based sexual abuse. It should now be completely clear that there is no First Amendment right to disclose private, sexually explicit images of another person without consent.”

Since 2015, the theory that these laws were unconstitutional violations of the speech right has not only been tested at the state level, but the fervent belief that everything online is protected speech has waned considerably. Mitigating harm online, especially anything involving sexual abuse and minors, is one of the few subjects of bipartisan agreement these days. The fact that SHIELD passed the Senate this month suggests to me that it will become law by the end of the year. It will be an essential step in protecting the mostly women and girls who are targeted for IBSA.

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