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powerful lobby, the RIAA. Thus when Congress considered the phenomenon
of Internet radio in 1995, the lobbyists had primed Congress
to adopt a different rule for Internet radio than the rule that applies to
terrestrial radio. While terrestrial radio does not have to pay our hypothetical
Marilyn Monroe when it plays her hypothetical recording of
“Happy Birthday” on the air, Internet radio does. Not only is the law not
neutral toward Internet radio—the law actually burdens Internet radio
more than it burdens terrestrial radio.
This financial burden is not slight. As Harvard law professor
William Fisher estimates, if an Internet radio station distributed adfree
popular music to (on average) ten thousand listeners, twenty-four
hours a day, the total artist fees that radio station would owe would be
over $1 million a year. 14 A regular radio station broadcasting the same
content would pay no equivalent fee.
The burden is not financial only. Under the original rules that were
proposed, an Internet radio station (but not a terrestrial radio station)
would have to collect the following data from every listening transaction:
1. name of the service;
2. channel of the program (AM/FM stations use station ID);
3. type of program (archived/looped/live);
4. date of transmission;
5. time of transmission;
6. time zone of origination of transmission;
7. numeric designation of the place of the sound recording
within the program;
8. duration of transmission (to nearest second);
9. sound recording title;
10. ISRC code of the recording;
11. release year of the album per copyright notice and in the case
of compilation albums, the release year of the album and copyright
date of the track;
12. featured recording artist;
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