Musicians demand pay for radio play

Billy Corgan, vocalist and guitarist of the music group Smashing Pumpkins, spoke today before the House Judiciary Committee on behalf of musicFIRST, a coalition of musicians pushing for compensation when their sound recordings are broadcasted. As the law stands, the song writer receives compensation when it is played on AM/FM radio, but the performer does not. Corgan argued, "The decision behind this long-held inequity stems back to 1909 when radio was in its infancy... the old-fashioned radio business has held onto this exemption for over 80 years -- a law made in a bygone era for a set of reasons long past. This landmark exemption however stripped performers of their right to a free market evaluation of the value of their recorded works."

The committee was split on the issue. Chairman Congressman John Conyers (D- MI) spoke strongly in support bill HR 848 which would legally mandate artist compensation for radio broadcasts. He pointed out that only four developed nations in the world do not pay musicians: The US, Iran, North Korea, and China. This, he stated, is not something we should be proud of. He predicted that sooner or later, HR 848 will become a law, and "the sooner, the better."

However, dissenting views were expressed by other members of the committee. Congressman Bob Goodlatte (R-VA) pointed out how radio stations have seen steep decline in revenue during the current economic downturn, and the forecast is that the situation will only get worse. Goodlatte stated that it would be detrimental to apply another fee to small radio stations, in fact, this bill may be "the last straw" which causes small stations to close.

The core of the debate came down to which side receives unfair benefits in this situation; Whether musicians benefit from promotion due to radio play, or radio stations benefit in terms of listenership from playing music. Judiciary Committee ranking member Lamar Smith (R- TX) stated his proposition, "What I propose is that both parties agree to have a third-party entity conduct an objective study of the economic impact of royalty payments on performing artists and radio stations. Stakeholders would offer issues to be evaluated. And at least there will be some quantitative analysis to help mold legislation."

Major hurdles remain in patent reform legislation

Senators Leahy (D-Vt.) and Hatch (R-Utah), along with Congressmen Conyers (D-Mich.) and Smith (R-Tex.), today announced the introduction of major patent reform legislation in both chambers of Congress with bipartisan support. The House and Senate Judiciary Committees have been working on patent reform for the last 4 years, and in the last Congress the House was able to pass the legislation, while it stalled in the Senate. The Congressmen today all expressed hope that the legislation would become law this time around, though all admitted there were major issues to be worked out.

Last time the Senate took up the bill, debate deadlocked over how to reform damage calculations and the handling of inequitable conduct, which occurs when a party tries to enforce a patent it obtained without being completely honest with the U.S. Patent and Trademark Office. While these disagreements are large, all parties today expressed hope. Senator Leahy, asked what had changed since the last time the Senate took up the bill, responded that there is "urgency" to get the bill through. The Senators and Congressmen linked the bill to the economic downturn, saying that reforms were important to improving the economy.

The bill as introduced picks up where discussions left off last time. It includes several major changes, including switching the U.S. to a first-to-file system from a first-to-invent system, creating a post-grant opposition system to allow challenges to patents within 12 months after they have been issued, and eliminating the publication of pending patent claims. Further, it streamlines many of the forms and procedures in the patent application process.

Senate Judiciary Chairman Leahy said that hearings on the new bill will begin next week. Because the bill stalled in the Senate last time, the House Judiciary Committee is waiting for Senate action before bringing the bill up for consideration.

FBI oversight ineffective; new investigation guidelines unclear

Multiple Congressmen expressed frustration at the inefficacy of FBI oversight as currently carried out by the House Judiciary Committee in a hearing today. FBI Director Robert Mueller was the sole witness. Chairman John Conyers (D-Mich.) opened the session complaining in an exasperated tone that the committee had not yet received a response to a September 5 letter asking about "the FBI’s anthrax investigation, disturbing revelations about the Bureau’s improper collection of information on reporters, the FBI’s approach to this country’s mortgage fraud crisis, and the expanded investigative and intelligence gathering powers resulting from the proposed Attorney General Guidelines concerning the FBI’s domestic operations."

Conyers and other congressmen elaborated in questions about why they wanted the Attorney General Guidelines (set to be made public in a few weeks), which Mueller said were still under review but which would unify the FBI's standards for starting investigations over different types of investigations. For example, the standards for when to open a criminal investigation are different from those used for national security investigations, and it is hoped that the new guidelines would make standards easier to follow. Congressman Artur Davis (D-Ala.), a former assistant U.S. Attorney, questioned Mueller about whether the new standards for opening an investigation would be lower than the standards police use for when they are allowed to stop and question a person (set out in the Terry v. Ohio Supreme Court decision of 1968). Mueller resisted the comparison, but Davis pointed out that the investigative activities carried out by the FBI are similar to those used by police. Mueller finally admitted that the standard has a lower threshold, so investigations could be opened without having reasonable suspicion based on "specific and articulable facts" that a person has committed, is committing, or is about to commit a crime.

Congressman Bill Delahunt (D-Mass.) expressed frustration at the committee's policy of allowing each congressman only 5 minutes for asking questions; "this format doesn't work," he said, pointing out that it was impossible to get deep into any issue in that time. He suggested the FBI could have experts in particular areas come testify, and on a more frequent basis than Director Mueller does. Mueller responded by saying that the committee will always be frustrated regardless of administration, as answers to questions must be vetted before being sent back. He also offered to come up to the hill at any time for briefings or discussions.

Congresswoman Maxine Waters (D-Calif.) asked Director Mueller about allegations that voters will be challenged at polling places if their homes have been foreclosed on. Mueller said he had not heard about that particular plan. He said the Department of Justice Civil Rights Division would investigate any such issue, though Mueller was unable to name the head of that division without the help of an aide. Mueller promised to follow up on making sure the Civil Rights Division knew about the problem, and Chairman Conyers assured Waters that Civil Rights Division head Grace Chung Becker would be testifying before the committee soon.

Democrats blocking executive privilege

The House Constitution, Civil Rights, and Civil Liberties Subcommittee met to discuss the State Secrets Protection Act of 2008. Rep. Jerrold Nadler (D-N.Y.) who introduced the legislation, said members of the Executive Branch are misusing the state secrets privilege to avoid Congressional oversight and thus, shielding itself from questions concerning spying against Americans and acts of torture committed at Guantanamo Bay. He said the act protects justice and, noting checks and balances, the Constitution. Rep. John Conyers (D-Mich.) referenced a Los Angeles Times article from 2006 that suggests over half of government information is over-classified.

Rep. Trent Franks (R-Ariz.) said disclosing classified information threatens the national security of the United States and that though a denial of access to judicial review may be disadvantageous for some, it is necessary for the safety of all Americans. Franks said that the post-September 11 era has shown the significant role of the state secrets privilege in the Department of Justice. He also said the Supreme Court has defended the privilege, adding that he finds it “shocking” that Democrats want courts to deviate from precedent as 200 detainees at Guantanamo Bay qualify for trial in American courts.

Meredith Fuchs of the National Security Archives supported the State Secrets Protection Act, saying that federal agencies often do not feel the need to disclose information without independent pressure. She said courts should have the right to consider evidence in claims of state secrets privilege, adding that courts should not refuse evidence provided by non-governmental experts. Steven Shapiro of the American Civil Liberties Union said Nadler’s legislation restores the state secrets privilege to its proper role and bring legal clarity. Shapiro said the ACLU supports the passing of the State Secrets Protection Act. Michael Vatis, a partner at Steptoe & Johnson, LLP expressed concern with a section of the act he said could be interpreted to mean that courts would analyze governmental and independent evidence equally. He said courts should exercise judgement but give substantial weight to the, potentially better-informed, government.

Sorting out the fact from fiction in electronic employment verification systems

The House Judiciary Committee oversaw a hearing on electronic employment verification systems and the safeguards needed to protect privacy and prevent misuse within them. Chairwoman Zoe Lofgren (D-Calif.) and Chairman John Conyers, Jr. (D-Mich.) presided over the hearing, while Rep. Ken Calvert (R-Calif.), Rep. Heath Shuler (D-N.C.), Rep. Sam Johnson (R-Tex.), and Rep. Gabrielle Giffords (D-Ariz.) served as the primary witnesses. Both Lofgren and Conyers wanted a thorough explanation of the E-Verify system and the New Employee Verification Act (NEVA), sorting out the fact from the fiction.

Conyers said that the main purpose of the hearing was to figure out a way to improve the E-Verify system. E-Verify was created as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 in order to verify the employment eligibility of both U.S. citizens and noncitizens at no charge to the employer. Calvert and Shuler highlighted the benefits of using E-Verify. Calvert said that all employers are required to check all potential new employees, inversely protecting everyone from discrimination. Shuler explained the high performance rate, saying that out of 1,000 employees 942 would be cleared automatically, 53 would be correctly mismatched, and the remaining five would successfully fight their mismatch. This gave the system an error rate of only half a percent.

Johnson and Giffords argued the flaws of E-Verify and explained the benefits of NEVA. Johnson said that in order to create an effective, secure, and reliable system, the system must prohibit unlawful employment, protect workers, partner with employers, reduce the risk of identity theft, and protect Social Security. Giffords agreed with him and said that NEVA fulfills each of these guidelines making it the best alternative to the E-Verify system. She stressed that if Congress does nothing to improve the system, “we will have failed.”