BY KURT HANSON
Hundreds of Internet radio stations and channels across America are shutting off their music streams on Wednesday, May 1st, in a "Day of Silence" to highlight their concern over the upcoming U.S. Copyright Office ruling on royalty rates that may shut down or bankrupt the vast majority of the nascent Internet radio industry.

The Librarian of Congress is required to set "sound recordings performance royalty" rates for Internet radio stations by May 21st — and an arbitration panel (a "CARP") working for that office has recommended a rate of $.0014 per listener per song (or $.0007 for broadcast simulcasts). Many webcasters say the proposed royalty rate is the equivalent of 200% or more of their revenues.

By crying "Mayday! Mayday!" next Wednesday, we're hoping that listeners will take the time to contact their representatives in Washington and ask those representatives to express their concerns to the Librarian of Congress, delivering the message: "The legislative intent of a statutory royalty rate was supposed to be to ENCOURAGE the growth and diversity of the industry, not to kill it."

Most webcasters are planning the May 1st "Day of Silence" to begin at dawn in their time zone and end in late evening. Some webcasters plan to go entirely silent, while others plan to replace their music streams with periods of silence interspersed with public service announcements on the subject. (Some webcasters also plan to broadcast or direct listeners to an all-day talk show on the issues produced by WOLF FM's Steve Wolf.)

Webcasters that will be participating in the "Day of Silence" include the majority of the top-rated independent webcasters, including AllDanzRadio (various formats), Choice Radio (various formats), ChronixRadio (rock), ClevelandHits.com (CHR), CyberRadio2000 (various formats), Digitally Imported (various forms of electronica), HardRadio (rock), iNetProgramming (bluegrass and other formats), Internet Radio Hawai'i (Hawaiian music), KING-FM/Seattle (classical), KPIG/Freedom, CA (Americana), M4Radio (indie rock), Mostly Classical (classical), Radio Paradise (AAA), Radioio (AAA) and RAIN Radio (several formats).

Other webcasters planning to participate include SomaFM (electronica), 3WK (alternative), TwangTownUSA (country), Twangcast (country), Ultimate-80s (Eighties), Village Voice Radio (eclectic), WCSB/Cleveland (various), WICB-FM (Ithica College), and WOLF FM (70s-80s-90s).

Webcasters who may not go silent but who plan to support the effort with heavy schedules of PSAs (that will include a moment of silence — e.g., "Here's what Internet radio may sound like on May 22nd...") include Beethoven.com (classical), Live365.com (various formats), ClassicalMusicDetroit (classical), Shoutcast (various formats), Winamp Radio (various formats), and numerous other college and noncommercial webcasters.

We're also hoping to add more terrestrial broadcasters who stream simulcasts of their programming. (If you're interested, see the sign-up link at the end of this story.)

The RIAA has denied that the CARP's recommended royalty rate will cause significant harm to the Internet radio industry. But Beethoven.com's Kevin Shively disagrees, noting:

"Here's an example of how the Carp's recommended rate would decimate webcasters: For eight of the larger independent webcasters — Beethoven, Digitally Imported, Radioio, Radio Paradise, SomaFM, 3WK, Wolf FM, and Ultimate-80s — we calculated that our total hours streamed last year were 40 million hours.

"During that period, our combined revenues were $93,000. But according to the CARP panel's recommended royalty rate, we'd owe a royalty to the RIAA for the same period of $710,000!

On Monday, a letter signed by 20 key members of the US House of Representatives was sent to the Librarian of Congress (see RAIN coverage here), expressing concern that the CARP proposal for webcasters is "both contrary to the intent of the DMCA and Congress's general policy not to stifle innovation on the Internet."

On May 1st, webcasters will listeners will be encouraged to call or write their state's two Senators and their district's Congressman, asking them to add their voice to the effort to set a royalty rate that will not destroy this nascent industry.

Banner ads and PSAs will be available to all participating stations, and SaveInternetRadio.org will be redesigned to specifically focus on the day's event.

Help support this effort and help keep Internet radio from a premature death! If you'd like to add your station to the list of participating webcasters who will be taking down their streams on May 1st, or running PSAs on the subject interspersed with periods of silence (or crickets chirping), or running Steve Wolf's talk show, e-mail Kurt here and we'll include you in future press releases.

BY PAUL MALONEY
The US Copyright Office-imposed deadline to submit commentary on the posted replies on their "Notice of Recordkeeping" ruling is end-of-business tomorrow.

You can see the filed replies here. Unlike the CARP process, the reply and commentary window has been open to anyone interested. The deadline for initial reply was April 5.

To help generate as much discourse on this matter as possible, Susan Pickering of the International Webcasting Association told RAIN that her organization's legal counsel, Shaw Pittman LLP, has offered to file reply comments for interested parties (please see details below).

The "Notice of Recordkeeping" is a body of rules proposed by the US Copyright office mandating specific information that webcasters and broadcasters must supply to copyright owners of recordings streamed on the Internet. In addition to 18 separate pieces of information regarding each musical selection, the Copyright Office notice calls for seven data points on individual streamcast listeners, called the "listener log" (the notice can be read here, see RAIN coverage here).

Following an outcry over technical feasibility and possible privacy law violations, the RIAA subsequently dropped their interest in the listener log (see RAIN coverage here).

In addition to accepting public written comment, the Copyright Office announced last week (in RAIN here) that given the contentious nature of the matter, it would hold a public roundtable to discuss it on Friday, May 10 in Washington.

As mentioned in the article above, the IWA and Shaw Pittman have offered to hand deliver to the US Copyright Office public comments on the "Notice of Recordkeeping." The reports will each be filed under separate covers, but hand delivered in one batch, according to the IWA executive director Susan Pickering. To have your filing hand delivered, please forward them no later than 2 PM EDT Friday to: Ms. Cynthia Greer Shaw Pittman LLP 2300 N Street, N.W. Washington, DC 20037 or: cynthnia.greer@shawpittman.com. This offer is open to anyone regardless of IWA affiliation.

From Business 2.0: "Copyright owners have clashed with new technologies for as long as there have been new technologies. During the past century, US courts have been reluctant to outlaw the new gizmos, leaving plaintiffs to reach some accommodation with the innovators. In more recent years, however, the courts have been far more disposed to side with content owners. Just ask Napster and MP3.com.

1908
"Music Industry vs. Player Pianos: Publishers claimed that companies making paper piano rolls based on the publishers' sheet music were violating their copyrights. The Supreme Court ruled that making piano rolls was not close enough to publishing music to be prohibited. Eventually Congress stepped in, establishing the 'mechanical license,' which grants anyone the right to reproduce another's published music in return for a royalty set by law.

1931
"Music Industry vs. Radios: A group of composers claimed that the LaSalle Hotel in Kansas City violated their copyright by replaying a recording of some of their songs on the hotel radio. The court disagreed, saying that while the hotel couldn't perform their music without permission, it could play it on the radio...

1984
"Movie Industry vs. VCRs: ...'The VCR,' said Jack Valenti, then as now the chairman of the Motion Picture Association of America, 'is to the American film producer and the American public as the Boston strangler is to a woman home alone.' Home video on VHS and DVD now accounts for about a third of Hollywood's revenues."

Read this entire piece in the May issue of Business 2.0, or online here. Sal Lepore of Cyberradio2000.com did some excellent research on these topics, and recommends this piece from The American Spectator here.