II 

109TH CONGRESS 

2D SESSION S. 2644 

To harmonize rate setting standards for copyright licenses under sections 

112 and 114 of title 17, United States Code, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 25, 2006 

Mrs. FEINSTEIN (for herself, Mr. GRAHAM, and Mr. FRIST) introduced the 

following bill; which was read twice and referred to the Committee on the 

Judiciary 

A BILL 

To harmonize rate setting standards for copyright licenses 

under sections 112 and 114 of title 17, United States 

Code, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Platform Equality and 

5 Remedies for Rights Holders in Music Act of 2006’’ or 

6 the ‘‘Perform Act of 2006’’. 

7 SEC. 2. RATE SETTING STANDARDS. 

8 (a) SECTION 112 LICENSES.—Section 112(e)(4) of 

9 title 17, United States Code, is amended in the third senVerDate Aug 31 2005 04:58 Apr 28, 2006 Jkt 049196 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2644.IS S2644

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1 tence by striking ‘‘fees that would have been negotiated 

2 in the marketplace between a willing buyer and a willing 

3 seller’’ and inserting ‘‘the fair market value of the rights 

4 licensed under this subsection’’. 

5 (b) SECTION 114 LICENSES.—Section 114(f) of title 

6 17, United States Code, is amended— 

7 (1) by striking paragraph (1); 

8 (2) by redesignating paragraphs (2), (3), (4), 

9 and (5) as paragraphs (1), (2), (3), and (4), respec10 tively; and 

11 (3) in paragraph (1) (as redesignated under 

12 this subsection)— 

13 (A) in subparagraph (A), by striking all 

14 after ‘‘Proceedings’’ and inserting ‘‘under chap15 ter 8 shall determine reasonable rates and 

16 terms of royalty payments for transmissions 

17 during 5-year periods beginning on January 1 

18 of the second year following the year in which 

19 the proceedings are to be commenced, except 

20 where a different transitional period is provided 

21 under section 6(b)(3) of the Copyright Royalty 

22 and Distribution Reform Act of 2004, or such 

23 other period as the parties may agree.’’; 

24 (B) in subparagraph (B)— 


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1 (i) in the first sentence, by striking 

2 ‘‘affected by this paragraph’’ and inserting 

3 ‘‘under this section’’; 

4 (ii) in the second sentence, by striking 

5 ‘‘eligible nonsubscription transmission’’; 

6 and 

7 (iii) in the third sentence— 

8 (I) by striking ‘‘eligible non9 subscription services and new sub10 scription’’; and 

11 (II) by striking ‘‘rates and terms 

12 that would have been negotiated in 

13 the marketplace between a willing 

14 buyer and a willing seller’’ and insert15 ing ‘‘the fair market value of the 

16 rights licensed under this section’’; 

17 (iv) in the fourth sentence, by striking 

18 ‘‘base its’’ and inserting ‘‘base their’’; 

19 (v) in clause (i), by striking ‘‘and’’ 

20 after the semicolon; 

21 (vi) in clause (ii), by striking the pe22 riod and inserting ‘‘; and’’; 

23 (vii) by inserting after clause (ii) the 

24 following: 


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1 ‘‘(iii) the degree to which reasonable 

2 recording affects the potential market for 

3 sound recordings, and the additional fees 

4 that are required to be paid by services for 

5 compensation.’’; and 

6 (viii) in the matter following clause 

7 (ii), by striking ‘‘described in subpara8 graph (A)’’; and 

9 (C) by striking subparagraph (C) and in10 serting the following: 

11 ‘‘(C) The procedures under subparagraphs 

12 (A) and (B) shall also be initiated pursuant to 

13 a petition filed by any copyright owners of 

14 sound recordings or any transmitting entity in15 dicating that a new type of service on which 

16 sound recordings are performed is or is about 

17 to become operational, for the purpose of deter18 mining reasonable terms and rates of royalty 

19 payments with respect to such new type of serv20 ice for the period beginning with the inception 

21 of such new type of service and ending on the 

22 date on which the royalty rates and terms for 

23 preexisting subscription digital audio trans24 mission services, eligible nonsubscription serv25 ices, or new subscription services, as the case 


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1 may be, most recently determined under sub2 paragraph (A) or (B) and chapter 8 expire, or 

3 such other period as the parties may agree.’’. 

4 (c) CONTENT PROTECTION.—Section 114(d)(2) of 

5 title 17, United States Code, is amended— 

6 (1) in subparagraph (A)— 

7 (A) in clause (ii), by striking ‘‘and’’ after 

8 the semicolon; 

9 (B) in clause (iii), by adding ‘‘and’’ after 

10 the semicolon; and 

11 (C) by adding after clause (iii) the fol12 lowing: 

13 ‘‘(iv) the transmitting entity takes no 

14 affirmative steps to authorize, enable, 

15 cause or induce the making of a copy or 

16 phonorecord by or for the transmission re17 cipient and uses technology that is reason18 ably available, technologically feasible, and 

19 economically reasonable to prevent the 

20 making of copies or phonorecords embody21 ing the transmission in whole or in part, 

22 except for reasonable recording as defined 

23 in this subsection;’’; 

24 (2) in subparagraph (C)— 

25 (A) by striking clause (vi); and 


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1 (B) by redesignating clauses (vii) through 

2 (ix) as clauses (vi) through (viii), respectively; 

3 and 

4 (3) by adding at the end the following: 

5 ‘‘For purposes of subparagraph (A)(iv), the mere offering 

6 of a transmission and accompanying metadata does not 

7 in itself authorize, enable, cause, or induce the making of 

8 a phonorecord. Nothing shall preclude or prevent a per9 forming rights society or a mechanical rights organization, 

10 or any entity owned in whole or in part by, or acting on 

11 behalf of, such organizations or entities, from monitoring 

12 public performances or other uses of copyrighted works 

13 contained in such transmissions. Any such organization or 

14 entity shall be granted a license on either a gratuitous 

15 basis or for a de minimus fee to cover only the reasonable 

16 costs to the licensor of providing the license, and on rea17 sonable, nondiscriminatory terms, to access and re18 transmit as necessary any content contained in such trans19 missions protected by content protection or similar tech20 nologies, if such licenses are for purposes of carrying out 

21 the activities of such organizations or entities in moni22 toring the public performance or other uses of copyrighted 

23 works, and such organizations or entities employ reason24 able methods to protect any such content accessed from 

25 further distribution.’’. 


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1 (d) DEFINITION.—Section 114(j) of title 17, United 

2 States Code, is amended— 

3 (1) by redesignating paragraphs (10) through 

4 (15) as paragraphs (11) through (16), respectively; 

5 and 

6 (2) by inserting after paragraph (9) the fol7 lowing: 

8 ‘‘(10)(A) A ‘reasonable recording’ means the 

9 making of a phonorecord embodying all or part of a 

10 performance licensed under this section for private, 

11 noncommercial use where technological measures 

12 used by the transmitting entity, and which are incor13 porated into a recording device— 

14 ‘‘(i) permit automated recording or play15 back based on specific programs, time periods, 

16 or channels as selected by or for the user; 

17 ‘‘(ii) do not permit automated recording or 

18 playback based on specific sound recordings, al19 bums, or artists; 

20 ‘‘(iii) do not permit the separation of com21 ponent segments of the copyrighted material 

22 contained in the transmission program which 

23 results in the playback of a manipulated se24 quence; and 


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1 ‘‘(iv) do not permit the redistribution, re2 transmission or other exporting of a phono3 record embodying all or part of a performance 

4 licensed under this section from the device by 

5 digital outputs or removable media, unless the 

6 destination device is part of a secure in-home 

7 network that also complies with each of the re8 quirements prescribed in this paragraph. 

9 ‘‘(B) Nothing in this paragraph shall prevent a 

10 consumer from engaging in non-automated manual 

11 recording and playback in a manner that is not an 

12 infringement of copyright.’’. 

13 (e) TECHNICAL AND CONFORMING AMENDMENTS.— 

14 (1) SECTION 114.—Section 114(f) of title 17, 

15 United States Code (as amended by subsection (b) 

16 of this section), is further amended— 

17 (A) in paragraph (1)(B), in the first sen18 tence, by striking ‘‘paragraph (3)’’ and insert19 ing ‘‘paragraph (2)’’; and 

20 (B) in paragraph (4)(C), by striking 

21 ‘‘under paragraph (4)’’ and inserting ‘‘under 

22 paragraph (3)’’. 

23 (2) SECTION 804.—Section 804(b)(3)(C) of title 

24 17, United States Code, is amended— 


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1 (A) in clause (i), by striking ‘‘and 

2 114(f)(2)(C)’’; and 

3 (B) in clause (iv), by striking ‘‘or 

4 114(f)(2)(C), as the case may be’’. 

5 SEC. 3. REGISTER OF COPYRIGHTS MEETING AND REPORT. 

6 (a) MEETING.—Not later than 60 days after the 

7 Copyright Royalty Board’s final determination in Docket 

8 No. 2005–1 CRB DTRA, the Register of Copyrights shall 

9 convene a meeting among affected parties to discuss 

10 whether to recommend creating a new category of limited 

11 interactive services, including an appropriate premium 

12 rate for such services, within the statutory license con13 tained in section 114 of title 17, United States Code. 

14 (b) REPORT.—Not later than 90 days after the con15 vening of the meeting under subsection (a), the Register 

16 of Copyrights shall submit a report on the discussions at 

17 that meeting to the Committee on the Judiciary of the 

18 Senate and the Committee on the Judiciary of the House 

19 of Representatives. 

Æ 


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