I 
109TH CONGRESS 
2D SESSION 
H. R. 5361 
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 HOUSE OF REPRESENTATIVES 
MAY 11, 2006 
Mr. BERMAN (for himself and Mrs. BONO) introduced the following bill; which 
was 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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Platform Equality and 
Remedies for Rights Holders in Music Act of 2006’’ or 
the ‘‘Perform Act of 2006’’ . 
SEC. 2. RATE SETTING STANDARDS. 
(a) SECTION 112 LICENSES.—Section 112(e)(4) of 
title 17, United States Code, is amended in the third sen-
tence by striking ‘‘fees that would have been negotiated 
VerDate Aug 31 2005 
00:28 May 14, 2006
Jkt 049196
PO 00000
Frm 00001
Fmt 6652
Sfmt 6201
E:\BILLS\H5361.IH
H5361
ccoleman on PROD1PC71 with BILLS
in the marketplace between a willing buyer and a willing 
seller’’ and inserting ‘‘the fair market value of the rights 
licensed under this subsection’’. 
(b) SECTION 114 LICENSES.—Section 114(f) of title 
17, United States Code, is amended— 
(1) by striking paragraph (1); 
(2) by redesignating paragraphs (2), (3), (4), 
and (5) as paragraphs (1), (2), (3), and (4), respec-
tively; and 
(3) in paragraph (1) (as redesignated under 
this subsection)— 
(A) in subparagraph (A), by striking all 
after ‘‘Proceedings’’ and inserting ‘‘under chap-
ter 8 shall determine reasonable rates and 
terms of royalty payments for eligible trans-
missions during the 5-year period beginning on 
January 1 of the second year following the year 
in which the proceedings are to be commenced, 
and on January 1 of every 5-year period there-
after, except when a different transitional pe-
riod is provided under section 6(b)(3) of the 
Copyright Royalty and Distribution Reform Act 
of 2004, or such other period as the parties 
may agree.’’; 
(B) in subparagraph (B)— 
VerDate Aug 31 2005 
00:28 May 14, 2006
Jkt 049196
PO 00000
Frm 00002
Fmt 6652
Sfmt 6201
E:\BILLS\H5361.IH
H5361
ccoleman on PROD1PC71 with BILLS
(i) in the first sentence, by striking 
‘‘affected by this paragraph’’ and inserting 
‘‘under this section’’; 
(ii) in the second sentence, by striking 
‘‘nonsubscription’’; and 
(iii) in the third sentence— 
(I) by striking ‘‘transmissions by 
eligible nonsubscription services and 
new subscription’’ and inserting ‘‘eli-
gible transmission’’; and 
(II) by striking ‘‘rates and terms 
that would have been negotiated in 
the marketplace between a willing 
buyer and a willing seller’’ and insert-
ing ‘‘the fair market value of the 
rights licensed under this section’’; 
(iv) in the fourth sentence, by striking 
‘‘base its’’ and inserting ‘‘base their’’; 
(v) in clause (i), by striking ‘‘and’’ 
after the semicolon; 
(vi) in clause (ii), by striking the pe-
riod and inserting ‘‘; and’’; 
(vii) by inserting after clause (ii) the 
following: 
VerDate Aug 31 2005 
00:28 May 14, 2006
Jkt 049196
PO 00000
Frm 00003
Fmt 6652
Sfmt 6201
E:\BILLS\H5361.IH
H5361
ccoleman on PROD1PC71 with BILLS
‘‘(iii) the degree to which reasonable 
recording affects the potential market for 
sound recordings, and the additional fees 
that are required to be paid by services for 
compensation.’’; and 
(viii) in the matter following clause 
(ii), by striking ‘‘described in subpara-
graph (A)’’; and 
(C) by striking subparagraph (C) and in-
serting the following: 
‘‘(C) The procedures under subparagraphs (A) 
and (B) shall also be initiated pursuant to a petition 
filed by any copyright owners of sound recordings or 
any transmitting entity indicating that a new type of 
service on which sound recordings are performed is 
or is about to become operational, for the purpose 
of determining reasonable terms and rates of royalty 
payments with respect to that new type of service 
for the period beginning with the inception of such 
new type of service and ending on the date on which 
the royalty rates and terms for preexisting subscrip-
tion services, eligible nonsubscription services, or 
new subscription services, as the case may be, most 
recently determined under subparagraph (A) or (B) 
VerDate Aug 31 2005 
00:28 May 14, 2006
Jkt 049196
PO 00000
Frm 00004
Fmt 6652
Sfmt 6201
E:\BILLS\H5361.IH
H5361
ccoleman on PROD1PC71 with BILLS
and chapter 8 expire, or such other period as the 
parties may agree. 
‘‘(D) In this paragraph, the term ‘eligible trans-
mission’ means— 
‘‘(i) subscription transmissions by pre-
existing subscription services; 
‘‘(ii) subscription transmissions by pre-
existing satellite digital audio radio services; 
‘‘(iii) 
eligible 
nonsubscription 
trans-
missions; and 
‘‘(iv) transmissions by new subscription 
services.’’. 
(c) CONTENT PROTECTION.—Section 114(d)(2) of 
title 17, United States Code, is amended— 
(1) in subparagraph (A)— 
(A) in clause (ii), by striking ‘‘and’’ after 
the semicolon; 
(B) in clause (iii), by adding ‘‘and’’ after 
the semicolon; and 
(C) by adding after clause (iii) the fol-
lowing: 
‘‘(iv) the transmitting entity takes no 
affirmative steps to authorize, enable, 
cause, or induce the making of a copy or 
phonorecord by or for the transmission re-
VerDate Aug 31 2005 
00:28 May 14, 2006
Jkt 049196
PO 00000
Frm 00005
Fmt 6652
Sfmt 6201
E:\BILLS\H5361.IH
H5361
ccoleman on PROD1PC71 with BILLS
cipient and uses technology that is reason-
ably available, technologically feasible, and 
economically reasonable to prevent the 
making of copies or phonorecords embody-
ing the transmission, in whole or in part, 
except for reasonable recording as defined 
in subsection (j)(10);’’; 
(2) in subparagraph (C)— 
(A) by striking clause (vi); and 
(B) by redesignating clauses (vii) through 
(ix) as clauses (vi) through (viii), respectively; 
and 
(3) by adding at the end the following: 
‘‘For purposes of subparagraph (A)(iv), the mere offering 
of a transmission and accompanying metadata does not 
in itself enable the making of a copy or phonorecord. 
Nothing in subparagraph (A)(iv) shall preclude or prevent 
a performing rights society or a mechanical rights organi-
zation, or any entity owned in whole or in part by, or act-
ing on behalf of, such organizations, from monitoring pub-
lic performances or other uses of copyrighted works con-
tained in such transmissions. Any such organization or en-
tity shall be granted a license on either a gratuitous basis 
or for a de minimus fee to cover only the reasonable costs 
to the licensor of providing the license, and on reasonable, 
VerDate Aug 31 2005 
00:28 May 14, 2006
Jkt 049196
PO 00000
Frm 00006
Fmt 6652
Sfmt 6201
E:\BILLS\H5361.IH
H5361
ccoleman on PROD1PC71 with BILLS
nondiscriminatory terms, to access and retransmit as nec-
essary any content contained in such transmissions pro-
tected by content protection or similar technologies, if 
such licenses are for purposes of carrying out the activities 
of such organizations or entities in monitoring the public 
performance or other uses of copyrighted works, and such 
organizations or entities employ reasonable methods to 
protect any such content accessed from further distribu-
tion.’’. 
(d) DEFINITION.—Section 114(j) of title 17, United 
States Code, is amended— 
(1) by redesignating paragraphs (10) through 
(15) as paragraphs (11) through (16), respectively; 
and 
(2) by inserting after paragraph (9) the fol-
lowing: 
‘‘(10)(A) A ‘reasonable recording’ means the 
making of a copy or phonorecord of a performance 
licensed under this section for private, noncommer-
cial use if technological measures used by the trans-
mitting entity and incorporated into a recording de-
vice— 
‘‘(i) permit automated recording or play-
back based on specific programs, time periods, 
or channels as selected by or for the user; 
VerDate Aug 31 2005 
00:28 May 14, 2006
Jkt 049196
PO 00000
Frm 00007
Fmt 6652
Sfmt 6201
E:\BILLS\H5361.IH
H5361
ccoleman on PROD1PC71 with BILLS
‘‘(ii) do not permit automated recording or 
playback based on specific sound recordings, al-
bums, or artists; 
‘‘(iii) do not permit the separation of com-
ponent segments of the copyrighted material 
contained in the transmission program which 
results in the playback of a manipulated se-
quence; and 
‘‘(iv) do not permit the redistribution, re-
transmission, or other exporting of a phono-
record embodying all or part of a performance 
licensed under this section from the device by 
digital outputs or removable media, unless the 
destination device is part of a secure in-home 
network that also complies with this paragraph. 
‘‘(B) Nothing in this paragraph prevents a con-
sumer from engaging in non-automated manual re-
cording and playback in a manner that is not an in-
fringement of copyright.’’. 
(e) TECHNICAL AND CONFORMING AMENDMENTS.— 
(1) SECTION 114.—Section 114(f) of title 17, 
United States Code (as amended by subsection (b) 
of this section), is further amended— 
VerDate Aug 31 2005 
00:28 May 14, 2006
Jkt 049196
PO 00000
Frm 00008
Fmt 6652
Sfmt 6201
E:\BILLS\H5361.IH
H5361
ccoleman on PROD1PC71 with BILLS
(A) in paragraph (1)(B), in the first sen-
tence, by striking ‘‘paragraph (3)’’ and insert-
ing ‘‘paragraph (2)’’; and 
(B) in paragraph (4)(C), by striking 
‘‘under paragraph (4)’’ and inserting ‘‘under 
paragraph (3)’’. 
(2) CHAPTER 8.—(A) Section 801(b) of title 
17, United States Code, is amended— 
(i) 
in 
paragraph 
(1), 
by 
striking 
‘‘114(1)(B), 115,’’ and inserting ‘‘115’’; and 
(ii) in paragraph (7)(B), by striking 
‘‘114(f)(3)’’ and inserting ‘‘114(f)(2)’’. 
(B) Section 803(c)(2)(E)(i)(II) of title 17, 
United States Code, is amended— 
(i) by striking ‘‘or 114(f)(2)(C)’’; and 
(ii) by striking ‘‘114(f)(4)(B)’’ and insert-
ing ‘‘114(f)(3)(B)’’. 
(C) Section 804(b)(3)(C) of title 17, United 
States Code, is amended— 
(i) 
in 
clause 
(i), 
by 
striking 
‘‘and 
114(f)(2)(C)’’; and 
(ii) in clause (iv), by striking ‘‘or 
114(f)(2)(C), as the case may be’’. 
VerDate Aug 31 2005 
00:28 May 14, 2006
Jkt 049196
PO 00000
Frm 00009
Fmt 6652
Sfmt 6201
E:\BILLS\H5361.IH
H5361
ccoleman on PROD1PC71 with BILLS
SEC. 3. REGISTER OF COPYRIGHTS MEETING AND REPORT. 
(a) MEETING.—Not later than 60 days after the 
Copyright Royalty Judges make their final determination 
in Docket No. 2005–1 CRB DTRA, the Register of Copy-
rights shall convene a meeting among affected parties to 
discuss whether to recommend creating a new category of 
limited interactive services, including an appropriate pre-
mium rate for such services, within the statutory license 
contained in section 114 of title 17, United States Code. 
(b) REPORT.—Not later than 90 days after the con-
vening of the meeting under subsection (a), the Register 
of Copyrights shall submit a report on the discussions at 
that meeting to the Committee on the Judiciary of the 
Senate and the Committee on the Judiciary of the House 
of Representatives. 
Æ 
VerDate Aug 31 2005 
05:33 May 14, 2006
Jkt 049200
PO 00000
Frm 00010
Fmt 6652
Sfmt 6301
E:\BILLS\H5361.IH
H5361
ccoleman on PROD1PC71 with BILLS