Shapiro Urges RIAA: Stop Pursuing Audio Flag Bill, Obey AHRA

The debate has returned to the spotlight in the lame- duck Congress, sparked by CEA warnings that outgoing Senate Majority Leader Frist (R-Tenn.) likely will seek an audio flag bill as a favor to his Nashville music industry constituents . Bainwol is Frist’s former chief of staff. CEA stepped up its warnings Mon. with ads in the newspapers Roll Call and The Hill urging lawmakers to “say NO to the RIAA’s extremist agenda. Say NO to the audio flag.” The ads, citing definitions of “piracy” on the RIAA website, said: “The big record labels say that making a personal mix CD of your music is piracy. It isn’t.”

The ads prompted Bainwol to write an angry letter Tues. to CEA blasting its “hit piece” for “mischaracterizations” that are “purposely inaccurate and deceptive.” On the reference to RIAA’s site, for example, Bainwol said the definition cited in the ad “references the problem of CD piracy, including commercial piracy, that includes the making of mixed CDs for sale on the street.” CEA’s ad “conveniently” omits mention of the recording industry’s consumer outreach site, MusicUnited.org, “that clearly expresses record labels don’t object to consumers making copies of purchased songs for their own personal use or to moving songs that they have legally purchased to their iPods, Zunes or other players,” Bainwol said.

Not only are CEA’s “scare tactics inaccurate and inflammatory,” they have “NOTHING to do with the audio flag,” Bainwol said. An audio flag bill “is merely the establishment of a PROCESS to allow for a marketplace solution,” Bainwol said: “It is through this open process that we seek to ensure that creators are paid for their works when digital radio services are transformed into download services that replace the sale of a song while profiting the device company and radio company. That’s it.”

Shapiro responded by telling Bainwol that an audio flag bill would thwart consumer rights that were “specifically endorsed by Congress” under 1992’s Audio Home Recording Act (AHRA) -- “a deal I personally negotiated with your predecessor,” Hilary Rosen. AHRA was meant as a “generic solution” to digital home recording issues “that would ensure Congress did not have to revisit this issue on a regular basis,” Shapiro said: “We made a tradeoff: We agreed to limit digital home recording devices to prevent multiple copies, and manufacturers agreed to pay you a royalty for every unit sold. In return, you agreed to refrain from lawsuits based on the use of these devices. In fact, you cashed the royalty checks, ignored the lawsuit limitations and now seek legislation that would obviate the deal entirely. That is the basis of our disagreement.”

Shapiro defended the accuracy of CEA’s ads and stood by the citation of the piracy definition from RIAA’s website. He also took Bainwol to task as having taken CEA statements out of context to suit RIAA’s audio flag cause. “You accuse us of promoting ‘piracy’ when we protect the rights of consumers to use lawfully acquired music in their private homes,” Shapiro said. CEA opposes commercial piracy “and we always have,” Shapiro said.

In his letter, Bainwol urged CEA to “discuss the facts” rather than “continue to engage in a silly exercise in diversionary rhetoric that is unworthy of a group that represents a great industry.” Shapiro replied that “we have always been and continue to be willing to engage in thoughtful conversations and work together to address these important issues.” As a “first step” toward conciliation, Shapiro asked Bainwol to: (1) Stop actively pursuing legislation and lawsuits “aimed at legitimate products and consumers.” The “climate of fear” created among innovators and lawful customers “does not benefit our industries or our society,” Shapiro said. (2) Declare that “ordinary consumers are not pirates.” Equating the private, noncommercial use of lawfully acquired content with piracy “is disingenuous and does not add to the debate,” he said.