The HJC approved the bill by a vote of 21-9. However, full House consideration will likely be delayed for at least six months while members await a GAO study on the likely consequences of enactment of the bill.

Section 106 of the Copyright Act, which is codified at 17 U.S.C. § 106, enumerates the exclusive rights of owners of copyrights. Section 106(6) currently provides that "the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: ... (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission".

17 U.S.C. § 114 then elaborates on what is an exclusive right under Section 106(6), and what is exempt. Performances by AM and FM radio broadcasters (terrestrial broadcasters) are exempted from the exclusive rights of copyright holders. These broadcasters do not need to obtain permission, or pay royalties, for playing copyrighted songs in the U.S. The international trend is different.

Rep. Sheila Lee (D-TX) and others stated at the markup that the only other countries that lack a performance right are North Korea, Iran, and the People's Republic of China. The National Association of Broadcasters (NAB), which represents terrestrial broadcasters, vigorously opposes this bill.

This bill would amend § 106(6) to provide an exclusive right "in the case of sound recordings, to perform the copyrighted work publicly by means of an audio transmission." It would also makes several revisions to Section 114. Although, the bulk of the text of the bill provides for special treatment for small, non-commercial, educational, and religious broadcasters.

The managers' amendment approved by the HJC at this markup provides that the provisions of the bill do not take effect for three years for stations grossing less than $5 Million, and for one year for stations grossing more than $5 Million. This amendment also reduces royalty rates for small broadcasters. The HJC approved the managers' amendment by voice vote.

Rep. John Conyers (D-MI) (at left), the Chairman of the HJC, argued for passage of the bill. He also stated that this is "not the end of the legislative process". Passage by the full House is not imminent. The House will not likely consider the bill, if at all, until after receipt of a report from the Congress's Government Accountability Office (GAO).

On May 13, 2009, Rep. Conyers, Rep. Lamar Smith (R-TX), the ranking Republican, and several other HJC members, sent a letter to the GAO requesting a report by November 13, 2009. The letter requests "a detailed analysis of economic factors related to enacting performance royalty legislation". The letter also lists numerous issues to be addressed in the report, including "the promotional value of sound recordings to the radio industry", and "the promotional value of radio airplay to performers, musicians and copyright owners, including whether there is a substitutional effect of airplay on sound recording sales". The letter also requests an analysis of "the effect on minority-owned, female-owned, and religious stations".

Rep. Dan Lungren (R-CA), a leader of the debate against approval of the bill, offered an amendment the would have eliminated the substance of the bill, and replaced it simply with a direction to the GAO to conduct a study.

At Rep. Maxine Waters' (D-CA) suggestion, he amended his amendment, by unanimous consent, to expand the scope of the GAO study to include the impact on minority owned stationed.

His amendment failed on a roll call vote.

Rep. Ted Poe (R-TX) offered an amendment that would have added a new section regarding distribution of receipts. It failed on a voice vote.

Rep. Sheila Lee (D-TX) announced that she had two amendments. However, she did not offer them.

The HJC then approved the bill on a roll call vote of 21-9. Voting correlated with party affiliation. All of the Democrats who voted, except Rep. Waters, supported the bill. Eight of thirteen Republicans who voted, opposed the bill.

While the bill passed overwhelmingly in the HJC, support in the full House is not likely as strong. The HJC is a bastion of support for copyright protection.

Rep. Conyers is the Chairman of the HJC. However, he shared the chair at this markup with Rep. Howard Berman (D-CA), a leading Congressional expert on copyright law and policy.

Rep. Waters was active in seeking delay of consideration of this bill. At one point she complained that she was not included in ongoing negotiations over revising the bill. Rep. Conyers noted that there have not been any real negotiations because the broadcasters have declined invitations to attend. He then appointed Rep. Waters, sua sponte, to lead further negotiations. She abandoned her enthusiasm for participating in negotiations.

Rep. Linda Sanchez (D-CA), a member of the HJC, did not attend the markup. She gave birth to a son just before the start of the markup. As the event dragged into the afternoon, Rep. Adam Schiff (D-CA) quipped that the boy has probably already learned how to walk and play the banjo. Rep. Berman interjected that he is entitled to compensation.

Legislative History. There was a related bill in the 110th Congress. On December 18, 2007, Rep. Howard Berman (D-CA) and others introduced HR 4789 [LOC | WW], the "Performance Rights Act of 2007". Also, Sen. Patrick Leahy (D-VT) and others introduced S 2500, the companion bill in the Senate.

The HJC's former Subcommittee on Courts, the Internet and Intellectual Property approved HR 4789 on June 26, 2008. However, the House did not pass the bill.

The Senate Judiciary Committee (SJC) held a hearing, but did not pass S 2500.

The HJC has held three hearings on this issue. There were subcommittee hearings in 2007 and 2008. Most recently, it held a hearing on HR 848 on March 10, 2009. See, prepared  testimony of witnesses: Billy Corgan (musician with the Smashing Pumpkins), Mitch Bainwol (head of the RIAA), Paul Almeida , Lawrence Patrick (Patrick Communications), Stan Liebowitz (University of Texas at Dallas), and Steve Newberry (NAB).

Rep. Conyers and others introduced the present bill, HR 48, on February 4, 2009. Sen. Patrick Leahy (D-VT) and others introduced the companion bill in the Senate, S 379, on February 4, 2009.

There was no subcommittee markup of HR 848. The HJC organized for the 111th Congress without an intellectual property subcommittee. IP matters are now handled by the full committee.

5/12. The House Judiciary Committee (HJC) approved without amendment HR 2344 [LOC | WW], the "Webcaster Settlement Act of 2009".

Rep. John Conyers (D-MI) and Rep. Lamar Smith (R-TX) both made very brief statements in support of the bill. There was no further debate. No amendments were offered. The HJC approved the bill by unanimous voice vote.

This bill was approved immediately following the HJC's approval of HR 848 [LOC | WW], the "Performance Rights Act". Both relate to compensation for performances of copyrights songs.

While the HJC approved HR 2344 in an instant, Rep. Zoe Lofgren (D-CA) and Rep. Howard Berman (D-CA) discussed the bill during debate over HR 848.

Rep. Lofgren (at right) said that of the four delivery platforms -- terrestrial radio, satellite radio, cable and internet -- only terrestrial radio does not pay for a performance right, and that webcasters pay far more than satellite or cable.

She added that satellite and cable pay about 6 to 8 percent of annual gross revenues, while webcasters pay around 47 percent of annual gross revenues. She argued that there should be a cap for small webcasters. Although, HR 2344 does not accomplish this. She also lamented that HR 2344 does not show the same solicitude to small webcasters that HR 848 shows to small broadcasters.

Rep. Berman (D-CA) argued that there should be "platform parity". Yet, HR 2344 does not provide for platform parity.

Rep. Jay Inslee (D-WA) introduced this bill on May 12, 2009. The original cosponsors are Rep. John Conyers (D-MI), Rep. Rick Boucher (D-VA), Rep. Lofgren, and Rep. Anna Eshoo (D-CA).

 This bill would make further changes to 17 U.S.C. § 114 , which pertains to the scope of exclusive rights in sound recordings. In the 110th Congress, HR 7084 [LOC | WW], the "Webcaster Settlement Act of 2008", which was signed into law on October 16, 2008, made webcasting related changes to § 114. It is now Public Law No. 110-435. HR 2344 would make three additional technical changes to subsection 114(f)(5).

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The House will meet at 1:00 PM for legislative business. See, Rep. Hoyer's schedule for week of May 11.

The Senate will not meet.

9:00 AM - 1:00 PM. Day two of a two day meeting of the National Aeronautics and Space Administration's (NASA) National Space-Based Positioning, Navigation and Timing Advisory Board. See, notice in the Federal Register, April 30, 2009, Vol. 74, No. 82, at Page 19999. Location: Embassy Suites Hotel at Chevy Chase Pavilion, 4300 Military Road, NW.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will host a brown bag lunch titled "The FCC and NTIA’s Boulder Labs: What They Do, How They Differ, How To Use Them". The speakers will be Rashmi Doshi (Chief of the FCC's Office of Engineering and Technology's Laboratory Division), Edward Drocella (Chief of the NTIA's Spectrum Engineering & Analysis Division), Mitchell Lazarus (Fletcher Heald & Hildreth), and Al Vincent (Director of the NTIA's Institute for Telecommunications Services). For more information, contact Tami Smith at tsmith07 at sidley dot com or 202-736-8257. Location: Sidley Austin, 1501 K St., NW.

Deadline to submit comments to the Federal Trade Commission http://www.ftc.gov/ (FTC) in connection with its third set of hearings on "The Evolving Marketplace for Intellectual Property", on March 18 and 19, 2009. See, notice .

The House will meet at 12:30 PM.

9:30 AM - 5:30 PM. The Copyright Office (CO) and the U.S. Patent and Trademark Office (USPTO) will hold a hearing regarding facilitating access to copyrighted works for blind or disabled people. See, notice in the Federal Register, March 26, 2009, Vol. 74, No. 57, at Pages 13268-13270. Location: Montpelier Room, Library of Congress, James Madison Building, 6th Floor, 101 Independence Ave., SE.

5:00 PM. Deadline to submit applications to the National Telecommunications and Information Administration (NTIA) regarding certain digital television Distributed Transmission System (DTS) projects. See, original notice in the Federal Register, October 20, 2008, Vol. 73, No. 203, at Pages 62258-62259; further notice in the Federal Register, December 9, 2008, Vol. 73, No. 237, at Page 74709; and the FCC's DTS Report and Order [56 pages in PDF], adopted on November 3, 2008, and released on November 7, 2008, FCC 08-256 in MB Docket No. 05-312.

5:00 PM. Extended deadline to submit applications to the National Telecommunications and Information Administration (NTIA) for the Public Telecommunications Facilities Program (PTFP) replacement digital television translator projects. See, notice in the Federal Register, January 30, 2009, Vol. 74, No. 19, at Pages 5643-5644.

Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST) and other government agencies titled "Safeguarding Health Information: Building Assurance through HIPAA Security". See, notice. Location: NIST, Building 101/Green Auditorium, 100 Bureau Drive, Gaithersburg, MD.

Extended deadline to submit applications to the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) for grants under the Public Telecommunications Facilities Program (PTFP). The Omnibus Appropriations Act, 2009, Public Law No. 111-8, appropriated $18 Million for the PTFP. See, notice in the Federal Register, April 8, 2009, Vol. 74, No. 66, at Page 15943.

The House will meet at 10:30 AM.

10:30 AM. The Federal Trade Commission's (FTC) Bureau of Economics (BOE) will host a seminar by Luke Froeb (Vanderbilt University) on his paper titled "An Equilibrium Analysis of Antitrust as a Solution to the Problem of Patent Hold-Up". He is an economist, and a former Director of the FTC's BOE. Location: FTC, Conference Room A, New Jersey Ave. Building.

11:00 AM. The Senate Commerce Committee (SCC) will hold a hearing on pending nominations, including Lawrence Strickling to be head of the National Telecommunications and Information Administration (NTIA), Aneesh Chopra to be Chief Technology Officer in the Office of Science and Technology Policy (OSTP), and Rebecca Blank to be the Department of Commerce's Under Secretary for Economic Affairs. See, notice. Location: Room 253, Russell Building.

CANCELLED. 2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a seminar conducted by Luke Froeb (Vanderbilt University) on his paper titled "An Equilibrium Analysis of Antitrust as a Solution to the Problem of Patent Hold-Up". To request permission to attend, contact Patrick Greenlee at 202-307-3745 or atr dot eag at usdoj dot gov. Location: Bicentennial Building, 600 E St., NW.

2:30 PM. The Senate Judiciary Committee (SJC) will hold a hearing titled "The Discount Pricing Consumer Protection Act: Do We Need to Restore the Ban on Vertical Price Fixing?". Sen. Herb Kohl (D-WI) will  preside. See, notice . Location: Room 226, Dirksen Building. Day two of a two day conference hosted by the National Institute of Standards and Technology (NIST) and other government agencies titled "Safeguarding Health Information: Building Assurance through HIPAA Security". See, notice. Location: NIST, Building 101/Green Auditorium, 100 Bureau Drive, Gaithersburg, MD.

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing on the Federal Bureau of Investigation (FBI). The HJC will webcast this event. See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The Securities and Exchange Commission (SEC) will hold a meeting to consider changes to the federal proxy rules to facilitate director nominations by shareholders. See, notice. Location: SEC, Auditorium (Room L-002).

12:00 NOON - 2:00 PM. The DC Bar Association will host a brown bag lunch titled "Standards & Patents: Living with Contradictions". The speaker will be Donald Purcell. He will discuss the DC Circuit's April 22, 2008, opinion [24 pages in PDF] in Rambus. v. FTC, 522 F.3d 456, the Federal Circuit's December 1, 2008, opinion [40 pages in PDF] in Qualcomm v. Broadcom, 548 F.3d 1004, and the 3rd Circuit's September 4, 2007, opinion [39 pages in PDF] in Broadcom v. Qualcomm, 501 F.3d 297. See also, story titled "Supreme Court Denies Cert in Rambus Case" in TLJ Daily Alert No. 1,903 , February 24, 2009; story titled "Court of Appeals Rules in Rambus v. FTC" in TLJ Daily E-Mail Alert No. 1,752, April 23, 2008; story titled "Federal Circuit Affirms in Qualcomm v. Broadcom" in TLJ Daily E-Mail Alert No. 1,865, December 2, 2008; and story titled "3rd Circuit Rules that Deception of SDO Can Give Rise to Claims for Violation of Sherman Act" in TLJ Daily E-Mail Alert No. 1,635, September 7, 2007. The price to attend ranges from $10 to $20. See, notice. The DC Bar Association has a history of excluding persons from its events. For more information, call 202-626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

1:00 PM. The President's Economic Recovery Advisory Board will hold its first meeting. See, notice in the Federal Register, May 5, 2009, Vol. 74, No. 85, at Pages 20779-20780. Location: White House, 1600 Pennsylvania Ave., NW.

TIME? The U.S.-China Economic and Security Review Commission will hold a meeting titled "China in Asia, with particular focus on Pakistan, and the former Soviet Republics in Asia: Economic and security issues and implications for the United States". Location: Room __, Dirksen Building, Capitol Hill.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Hot Topics in FCC Enforcement". The first panel is titled "Current FCC Enforcement Topics: Indecency, Payola, the Omnibus CPNI NAL and Other Substantive FCC Enforcement Initiatives". The speakers will be Tom Davidson (Akin Gump), John Fiorini (Wiley Rein), and Jon Frankel (Bingham McCutchen). The second panel is titled "Important FCC Enforcement Procedural Issues for Practitioners: Consent Decree Negotiations, Tolling Agreements, Escrow Agreements, and Statute of Limitations Issues and Interpretations". The speakers will be Kathryn Berthot (Chief of the FCC's Enforcement Bureau's Spectrum Enforcement Division), Mace Rosenstein (Covington & Burling), and Irene Flannery (FCC's EB's Investigations and Hearings Division). The price to attend ranges from $25 to $150. Location: Bingham McCutchen, 2020 K St., NW.

Extended target date in the U.S. International Trade Commission's (USITC) Section 337 proceeding titled "In the Matter of Certain Semiconductor Chips With Minimized Chip Package Size and Products Containing Same" and numbered 337-TA-605. See, notice in the Federal Register, April 1, 2009, Vol. 74, No. 61, at Pages 14820-14821. Deadline to submit certain initial comments to the Federal Communications Commission (FCC) in response to its  supplemental Notice of Inquiry [22 pages in PDF] regarding its preparation of a video competition report for the years ending June 30, 2007, June 30, 2008, and June 20, 2009. This deadline pertains to comments regarding 2007 and 2008. See, notice in the Federal Register, April 27, 2009, Vol. 74, No. 79, at Pages 19085-19091. See also, story titled "FCC Resumes Its Statutory Obligation to Study Video Competition" in TLJ Daily E-Mail Alert No. 1,886, January 21, 2009, and story titled "FCC Releases Amended NOI on Annual Video Competition Reports" in TLJ Daily E-Mail Alert No. 1924, April 11, 2009.

8:00 AM. The Federal Aviation Administration's (FAA) Commercial Space Transportation Advisory Committee will meet. See, notice in the Federal Register, April 13, 2009, Vol. 74, No. 69, at Page 16914. Location: FAA Headquarters Building, Bessie Coleman Conference Center, 2nd floor, 800 Independence Ave., SW.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda again includes consideration of S 417 [LOC | WW ], the "States Secret Protection Act", and HR 985 [LOC | WW] and S 448 [LOC | WW], both titled the "Free Flow of Information Act of 2009". See, stories titled "Senate Judiciary Committee to Consider State Secrets Bill" and "9th Circuit Rules in State Secrets Case" in TLJ Daily E-Mail Alert No. 1,933, April 29, 2009. The agenda also includes consideration of the nominations of David Hamilton to be a Judge of the U.S. Court of Appeals (6thCir), Andre Davis to be a Judge of the U.S. Court of Appeals (4thCir), and Thomas Perez to be Assistant Attorney General in charge of the Civil Rights Division. The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building. 10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "The U.S. - Panama Trade Promotion Agreement". See, notice. Location: Room 215, Dirksen Building.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics (BOE) will host a seminar by Chris Knittel (UC Davis). He is an economist, and co-author of the paper [76 pages in PDF] titled "Estimation of Random Coefficient Demand Models: Challenges, Difficulties and Warnings". Location: FTC Conference Center, 601 New Jersey Ave., NW.