More insight from the legal community regarding the recent decision by the U.S. Copyright Office that broadcasters streaming their signal on the Internet are liable for copyright fees. In yesterday's issue, New York attorney Barry Skidelsky shared his thoughts (here). Today's "RAIN Guest Essay" is from media attorney David Oxenford.

BY DAVID OXENFORD
I shared your amazement at last week's convention about the lack of knowledge of the provisions of the Digital Millennium Copyright Act (DMCA) from people who are already streaming, and who will have to pay the royalty -- once it is figured out how much that royalty will be.

An action has just come out of the Copyright Office that may focus much more attention on the fee. The Copyright Office has just ruled that terrestrial radio stations who stream their signal onto the Internet are subject to the provisions of the DMCA for that stream, and will have to pay fees to the RIAA and others who hold copyrights on the performances contained in recorded music.

While broadcasters are used to paying ASCAP, BMI and SESAC fees to get rights from the composers of music, having to pay a fee to performers for the use of their music on the radio is something new in this country. Many broadcasters will be surprised to learn that, unless the decision of the Copyright Office is overturned, they will have to pay these fees to performers merely because the station has put its over-the-air signal onto the Internet.

If the decision is upheld, I would not be surprised to see some stations stop streaming in order to avoid the fee, especially since few broadcasters are getting any quantifiable economic benefit from such streaming.
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The decision also opens up a whole new host of issues for the broadcaster, as the DMCA compulsory license is only available to stations who meet certain statutory programming practices. For instance, if you play more than four songs from the same artist in a three hour period, or more than three songs in a row from that artist, you do not qualify for the compulsory fee. More than two songs in a row from the same album also takes you out of the compulsory license.

If a station does not qualify for a compulsory license, they have to individually negotiate with the copyright holder an appropriate fee for the use of the music, unlike the compulsory fee which will be set by an arbitration panel in DC and will apply to all Internet broadcasters who comply with the DMCA provisions.

To avoid having to enter into individual negotiations with the copyright holders, stations who stream will not be able to do such tried and true broadcast promotions as "Six Album Sides At Six" or a "Block Party Weekend" (unless the blocks are kept to three songs in length).

I think that this action of the Copyright Office should wake some people up. I expect that the broadcast community will now become fully engaged in the debate about the appropriate level for these fees.

David Oxenford is a partner in Shaw Pittman. Mr. Oxenford's practice focuses on media issues, representing broadcast stations, financial institutions, consulting firms, program providers, trade associations, and others involved in the industry. Mr. Oxenford and his firm represent the International Webcasters Association, and represented 29 State Broadcast Associations in filing comments before the Copyright Office on the issue of the applicability of Digital Millennium Copyright Act to broadcasters who stream their signals. He can be reached at 202-663-8128; or by e-mail at david.oxenford@shawpittman.com

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BY PAUL MALONEY
Oldies isn't often the musical genre that first pops in your mind when you think about Internet radio. Tech-savvy kids hunting down the latest hip-hop or trance is the more easily envisioned stereotype.

In fact, it's been shown that the targeted age group of the Oldies format more often heads to the web in search of news and information than music (see RAIN's report on the recent Arbitron/Edison study on radio websites here).

But if you like to relive memories through the musical soundtrack of your earlier years, OldiesCentral is a great place to do it. The site is a well-stocked resource of "single-oriented" pop and rock music from the 50s, 60s, 70s, and 80s.

Fun and not overly "campy," the site celebrates the music and culture of youth, concentrating on Billboard #1's and "one-hit-wonders." The music selection is divided (as you might see from screenshot above) into decades, and a catchall "Hot" category. Within each of these categories are different stream choices featuring only #1 hits from the decade, the period's Top 40, yearly reviews of each year, or "sub-genres" (British Invasion during the 60s, Doo Wop from the 50s, etc.).

A centerpiece to the site is an "external" stream of Barry Scott's syndicated radio show "The Lost 45s." This particular show features "records you never thought you'd hear again," interspersed with interviews and cleverly produced audio snippets from old commercials, newsbites, and TV shows. The show is also available on Barry's own website here.

The site is a little difficult to navigate at first. The left-hand menu is a list of the program choices. But instead of going straight to the stream, clicking the menu choices brings up a description of the channel on the right-hand side. It's here that you click the Play button to listen. It's easy enough to navigate once you figure out the system: choose the decade on the top menu, make your station choice on the left, and then read the description and start the stream on the right. It's just not the most intuitive.

The stream quality was pretty good, though the sound level seemed to rise and fall. All the streams we listened to we straight music, one song into the next.

Curiously, each decade section included a stream which was simply a produced montage of recognizable, mostly nonmusical audio from those ten years -- about a minute in length. And that's the entire channel. We're not sure how often these are updated, but it would seem more interesting to "sprinkle" the se well-produced bits in between the songs on the music channels, just to "liven up" the listening experience.

The player features "Skip," "Buy," and channel preset options. Overall, the visual design elements of OldiesCentral are very nice, adding to the positive experience of our visit to the site. Quite commendable.

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From Wired News: "On Monday, Emusic.com signed the first licensing agreement for an interactive music service with the National Music Publishers Association. Emusic CEO Gene Hoffman said the streaming service will be integrated into the existing download service by mid-year 2001...

"'We have a new and additional right to do fully interactive streaming, so what users will have is the ability to listen to anything they see on the site in whatever order they choose,' CEO Gene Hoffman said...

"'The advantages of having negotiated good licenses, not having to work within the constraints of the DMCA compulsory, would let them develop interactive streaming services that are much more compelling than the run-of-the-mill webcaster can,' Forrester analyst Eric Scheirer wrote in an e-mail."

Read the entire story here.




From the MeasureCast press release: "ABC Radio took the top two spots, and seven of the top ten positions in the second weekly MeasureCast Internet Radio Top10 ranking (for the week of Dec. 4th through 10th). MeasureCast, Inc. is the first company to provide streaming media customers with next-day audience size and demographic reports. The weekly ranking is based on Total Time Spent Listening (TTSL) - the total number of hours listeners access an on-line station's streamed content."

Rank	Station	Format	Network	Total TSL (in hrs.)	Cume Persons
1	WABC-AM (New York)	Talk Radio	ABC Radio	80,466	18,096
2	KSFO-AM (San Francisco)	Talk Radio	ABC Radio	46,736	9,875
3	The Beat LA (Los Angeles)	Urban R&B	RadioOne	46,169	4,768
4	WBAP-AM (Dallas / Ft. Worth)	News/Talk	ABC Radio	45,259	7,592
5	WLS-AM (Chicago)	News/Talk	ABC Radio	35,014	9,628
6	KABC-AM (Los Angeles)	Talk Radio	ABC Radio	32,052	7,517
7	Radio Margaritaville (Internet-only)	Classic Rock	Broadcast America	30,816	5,891
8	KGO-AM (San Francisco)	News/Talk	ABC Radio	29,560	6,802
9	3WK Original Underground (Internet-only)	Alternative Rock	3WK	26,837	7,694
10	WPLJ-FM (New York)	CHR/Top 40	ABC Radio	25,249	3,123

These are exactly the same top ten stations as last week, in only slightly different order. The number of streams rated was 886, down from last week's 944. As is the case with Arbitron's Webcast Ratings, this represents only a fraction of the streams available on the Internet.

Note that what traditional broadcast radio calls TSL (Time Spent Listening) is the average number of hours each cume person listens during the study period. This value can be calculated for a station by dividing the total TSL hours (column 5) by the total cume persons value (from column 6).

To calculate AQH, or Average Quarter Hour value (again, a broadcast radio metric), divide the TSL by the number of hours in the study period (168 hours in a week). To measure for a the typical 6a-12M broadcast week, divide by 126.

It should be noted that major radio stations in New York typically "cume" one to two million people.

Last week's MeasureCast Top Ten is here. Read the MeasureCast press release here.

Dec. 12-14, 2000	Streaming Media West 2000, San Jose, CA
February 1-4, 2001	RAB 2001, Dallas, TX