Chapter 14COPYRIGHT

& DIGITAL TECHNOLOGY

The Digital Performance Right in Sound Recordings

Act (1995)

Sound Recordings & The Performance Right

The public performance right in Section 106(4) does not apply to sound recordings. Therefore, when a recording is broadcast or played at a venue, the record label and the artist do NOT receive royalties. Many other countries provide this right, so labels and artists are paid when their recordings are broadcast. But U.S. labels/artists aren’t paid for foreign broadcasts.

Sound Recordings & The Performance Right

U.S. recordings are performed all over the world, to a much greater degree than other countries’ recordings.So there is a lot of money left “on the table” and uncollected. - Ex: Aerosmith song from Con Air - Copyright owners have introduced bills to add a sound recording performance right, but the broadcasters’ lobby has defeated these attempts.

Digital Performance Right in Sound Recordings Act of 1995

The DPRA changed copyright law 2 ways:1) Created a performance right in sound recordings

publicly performed by “digital audio transmission” (streaming) in Section 106(6).

2) Expanded the compulsory mechanical license provision to apply to digital phonorecord deliveries (DPDs).

The DMCA

The Digital Millennium Copyright Act has three main parts: (1) Rules for webcasters, (2) Liability for ISPs or OSPs, and (3) Anti-piracy provisions.

SoundExchange SoundExchange is a PRO that collects license fees from webcasters such as Sirius/XM Radio, Pandora, Apple for iTunes Radio, Spotify for custom radio channels, etc.

SoundExchange distributes royalties: 50% to the label or owner of sound recording45% to the featured artist2.5% to non-featured musicians

2.5% to non-featured vocalists

Digital Performance Right in Sound Recordings Act of 1995

So in the U.S., radio stations do NOT have to pay to play recordings. But if they simulcast (stream) over the Internet they must obtain a public performance license from and pay license fees to SoundExchange. This was the holding in Bonneville Corp. Int’l v. Peters.

Bonneville Corp. Int’l v. Peters

FACTS: DPRA created new performance right for digital audio transmissions of sound recordings. The statute includes an exemption for “nonsubscription broadcast transmissions”. The Copyright Office made a rule that this term did not include webcasts (streaming) of radio broadcasts. The National Assoc. of Broadcasters sued the Register of Copyrights in federal district court. The trial court held for the Copyright Office. The broadcasters appealed.

Is a Download a Sale or a License?F.B.T. Productions, LLC v. Aftermath Records

Eminem’s record contract stated that he would receive 12% - 20% of the adjusted retail price of “records sold through normal retail channels.” Under the contract, Eminem was to receive 50% of income from “masters licensed” by the record company. Eminem argued that his label licensed its master recordings to iTunes and other download sellers, so he was entitled to 50% of the label’s income from the download sales. Court held for Eminem.

Streaming = Not Reproduction

When a music file is streamed from a website to a listener, it is not a reproduction.

While it is streaming, the file is in RAM on the listener’s computer, but no copy is made on the listener’s hard drive.

Distribution v. ReproductionWhen a work is downloaded it is not distributed. This is true because:• There is no transfer of a material object.• The owner of the copy or phonorecord

transmitted still possesses that copy or phonorecord.

• Instead of a distribution, what has taken place is really a reproduction of the original work that results in a new copy being created.

Copies of Music Files

True or False? You can make infinite copies (of a music file), which if made from a lawfully acquired file used solely for your own personal use may constitute a fair use for this purpose.

File-SharingA music lover buys a CD of her favorite artist at a retail store. She listens to the CD repeatedly for six months, and then grows tired of it. Using “ripper” software, she converts the tracks on the CD to MP3 files on her computer, and uploads the MP3 to a file sharing website where she is able to obtain for free the newest single by the same artist. She can do this under which of the following laws or copyright principles?

Napster

In the Napster case, the direct infringers were the Napster users themselves.

Copyright Alert System

There are currently two prominent and similar programs to discourage online copyright infringement in the world. One of those programs is the “Three Strikes and You’re Out” approach being tried in Europe and the other is the “Copyright Alert System” being tried in the U.S.

Copyright Alert System

The CAS was created by entertainment companies and ISPs such as Comcast . If a user’s account appears to be used for file-sharing, the user receives 5 notices. After that, the ISP takes “Mitigation Measures”: 1) Reducing the user’s Internet speed, 2) Directing the user to contact the ISP to discuss the matter, 3) Other measures including turning Internet service off.

“Migitation Measure”

One of several notice steps to a subscriber to help resolve a possible copyright infringement under the Copyright Alert System

RIAA

Prior to its legal campaign against file sharers, the RIAA indicated that it would be likely to refrain from suing individual file sharers if file sharing companies would agree to adopt policies clearly disclosing to their users that unauthorized uploading and downloading of copyrighted works is illegal.

RIAA Lawsuits

One indisputable result of the RIAA lawsuits against file sharers was public awareness that unauthorized file sharing of copyrighted works is illegal.

Copyright Education

Unfortunately, the greatest challenge to educating people about copyright law is that it is not simple.