The Copyright Office is conducting a Ruelmaking regarding Section 115 of the Copyright Act.  Anyone interested in submitting comments to the Notice of Proposed Rulemaking (NPRM) MUST get them into the Copyright Office on or before the August 28, 2008, deadline.

A little background: 

Section 115 provides that when musical works have been distributed to the public in the United States under the authority of the copyright owner, any other person may obtain a compulsory license to make and distribute the work (think cover songs).  This ”compulsory license”–set forth in section 115–permits the use of musical works without the consent of the copyright owner if certain conditions are met and royalties are paid.

 (Hear Russel Rains explain all about compulsory licensing.)

 

What does this have to do with Internet Radio?

Section 115 was amended on November 1, 1995, with the enactment of the Digital Performance Right in Sound Recordings Act of  1995 (”DPRA”). Among other things, this law expanded the section 115 compulsory license for making and distributing phonorecords to include distribution of a musical work by means of a digital phonorecord delivery.  A digital phonorecord delivery (DPD) is 

Each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein.

Here’s the rub:  

The proposed regulations would permit the section 115 license to cover all musical works made and distributed to the public for private use, including those works made on the end‑users’ RAM or hard drive, on transmission services’ servers, and all intermediate reproductions on the networks through which transmission occurs. A statute that was written to cover the reproduction of physical media now applies to the songs stored in your computer’s RAM while you listen to Pandora.  Very, very expensive.  In fact, so expensive that it will kill Internet radio faster than Raid v. Cockroaches.  Broadcast radio stations pay no royalties.

Were are we now?

Several digital media groups have asked the Copyright Office to extend the time for submitting comments on the new regulations to ensure that incidental server copies (those required to manufacture and deliver a consumer copy) and songs stored temporarily in RAM do not trigger royalties and that the 115 License covers only legitimate copies of songs, those that are burned to CD or copied to a portable device.  

The Second Circuit Court of Appeals August 4, 2008, ruling in The Cartoon Network LP, LLLP v. CSC Holdings, Inc., (no copyright infringement for storing media in a remote server to watch later) gave the Copyright Office the political cover it needed to re-evaluate the regulation and to extend the rulemaking for additional comments.   

“The Office agrees that the ruling in the Cartoon Networkcase may be pertinent to the issues raised in this rulemaking and that interested parties should be given sufficient time in which to consider and comment upon the implications of that ruling.  Therefore, the Office has decided to extend the deadlines for submission of comments. Comments must be received in the Office of the General Counsel of the Copyright Office no later than Thursday, August 28, 2008 at 5:00 p.m.  Reply Comments must be received no later than Monday,  September 15, 2008 at 5:00 p.m.  The purpose of reply comments is to respond to what is said in the initial round of comments.  The Office will post the initial comments on its website, www.copyright.gov, shortly after the August 28 deadline.”

Hopefully, we’ll see a final rule that recognizes Internet broadcasting as a performance and not as a copy.

This entry was posted on Friday, August 22nd, 2008 at 5:35 pm and is filed under Copyright, RIAA. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.