Short Session Could Hold Up Industry Bills

The second session of the 108th Congress will be a short one. The political imperatives of lawmakers require them to be back home much of the time during a presidential campaign year, and attendance a

WASHINGTON, D.C. -- The second session of the 108th Congress will be a short one. The political imperatives of lawmakers require them to be back home much of the time during a presidential campaign year, and attendance at the Republican or Democratic conventions is a political necessity.

As a result, Congress has only about three weeks left to wrap up its entire legislative calendar. This includes top priorities such as deliberations on appropriations.

For the music community, the abbreviated schedule means that lawmakers may decide to ignore two industry-related issues until next year.

In this short session, Hill observers say, any legislation that isn't "clean" -- ie., cannot be easily passed or does not have complete support of all private-sector players -- is doomed.

One of the two bills in question for the music industry was originally drafted to be squeaky clean but is now encumbered by at least 10 possible amendments from various interest groups.

The Copyright Royalty and Distribution Reform Act, H.R. 1417 (nicknamed the CARP reform bill), initially had wide bipartisan support from the intellectual-property and high-tech communities.

The bill is important to labels, artists, songwriters, music publishers and Webcasters that currently deal with a laborious and expensive royalty rate and distribution system.

The current CARP system, which empanels part-time administrative law judges often unfamiliar with copyright law and the music marketplace, has been roundly criticized by all quarters.

The House bill would replace the part-timers with full-time judges who are knowledgeable about copyright law. It would also streamline rules to make deliberations less costly to smaller players.

The House passed the streamlined measure March 3 and sent it to the Senate.

In the last few months, however, groups that include the Recording Industry Assn. of America (RIAA), the Digital Media Assn. (DiMA), the National Assn. of Broadcasters (NAB) and the National Music Publishers Assn. (NMPA) have met to discuss amendments to the Senate version of the bill, which has not yet been introduced.

The performing rights organizations ASCAP and BMI have also been invited to discussions concerning the possible amendments, as has an official from the union the American Federation of Television & Radio Artists.

An internal Senate staff document documenting RIAA amendment plans shows that there are four prospective amendments that have been agreed upon by the RIAA, DiMA and NAB; two with no agreement by those parties; one agreed to by the RIAA, DiMA and NMPA; two being discussed by the RIAA, DiMA and NMPA; and three possible RIAA amendments not yet vetted by any of the other groups.

The most strenuous objections to the possible amendments have come from representatives of the performing rights bodies, according to sources. The opposition doesn't stem from the content of the amendments, they say, but rather from the presence of extra material that they feel impatient lawmakers will have neither the time nor the inclination to wade through.

The rights groups, says a source, "feel strongly that any amendments added now would kill the bill." The source adds, "They have possible amendments they'd like to put forward as well, but they're afraid that the more barnacles the better chance the ship will just sink."

Most of those involved would agree to one amendment that would streamline the discovery aspect of royalty rate challenges.

The other bill facing opposition (and therefore any chance of easy passage) is the Protecting Intellectual Rights Against Theft and Expropriations Act of 2004, S. 2237 (the so-called the PIRATE Act).

That bill, authored by Sens. Patrick Leahy (D-Vt.), the ranking Democratic member of the Committee, and Orrin Hatch (R-Utah), the panel's chairman, would allow the Department of Justice (DOJ) to file civil copyright-infringement cases. Sen. Lamar Alexander, R-Tenn., co-chair of the Congressional Songwriter's Caucus, stepped in this week as a sponsor of the bill.

Under current law, the U.S. attorney general can bring only criminal copyright cases, which can be difficult to prosecute because they require a higher standard of proof. The PIRATE bill would allow the attorney general to file civil claims that could include damages and restitution -- but without criminal penalties.

Both the American Civil Liberties Union and the free-Internet group Electronic Freedom Foundation oppose the bill, saying it should be up to intellectual-property industries to sue copyright infringers. They say it is not in the public interest for the DOJ to become a traffic cop for the industries when more important issues loom in the post-9/11 atmosphere.

The RIAA counters that extra federal protection of intellectual property industries, a strong sector of the domestic economy, is necessary and warranted.

The bill was "hot-lined" and ready for a Senate vote -- without the usual hearing process -- until last week. Opponents were successful in convincing Sen. Norm Coleman, R-Minn., already a critic of the RIAA's lawsuit tactics against filesharers, to put a "hold" on the bill, keeping it from the Senate floor and a vote.

The irony of Coleman's opposition, say observers, is that Coleman probably would not be a senator if it were not for the support of current RIAA chief Mitch Bainwol.

In his previous job as a Republican party senior operative, Bainwol played a large part in Coleman's successful campaign in 2002 to grab the seat of the late Sen. Paul Wellstone.

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