Promoting progress or rewarding authors? Copyright law and free speech in Bonneville International Corp. v. Peters

Brigham Young University Law Review, 2002 by Carter, Edward L

I. INTRODUCTION

extent of the right to public digital performance of a sound recording in the area of broadcast radio on the Internet.7

The district court's reasoning in Bonneville suffers two primary flaws that undercut the constitutional purpose of copyright law and raise questions about abridgement of speech. First, the trial court failed to give effect to congressional intent regarding the right to digitally perform sound recordings. Second, the court made an unsupported empirical assumption about potential economic harm of online radio broadcasts. The Bonneville case illustrates the potential for courts blinded by technology and globalization to transform copyright law from a society-based system aiming to promote scientific and artistic progress into an individual-based, moral-rights system aiming to compensate authors. Bonneville also illustrates that courts interpreting copyright law without considering the policies behind the Speech Clause of the First Amendment may unnecessarily restrict speech by limiting public access to information.

This Note begins by discussing the purpose of U.S. copyright law and the effects of globalization and technology on the Copyright Act during the twentieth century. Part III describes the factual and procedural aspects of Bonneville as well as the reasoning of the Eastern District of Pennsylvania in that case. Part IV discusses the interplay between copyright and free speech by first evaluating the Bonneville court's interpretation of the Copyright Act and then examining what First Amendment policies add to the adjudication of copyright law questions. Part V offers a brief conclusion.

II. BACKGROUND

fourteen years.9 Today's Copyright Act hardly resembles the 1790 statute: registration is no longer required so virtually every creative work imaginable is automatically copyrighted as long as it meets the low thresholds of originality10 and fixation.11 For works created after January 1, 1978, copyright endures for the life of the author plus seventy years.12

Copyright law encompasses not facts or ideas, but an author's expression in literary, musical, dramatic, filmed, recorded, and other formats.13 Among six exclusive rights14 spelled out in the Copyright Act, this Note discusses the right of public digital performance of a sound recording. Congress created this narrow public performance right in the Digital Performance Right in Sound Recordings Act of 1995 ("DPRA")15 and modified it in the Digital Millennium Copyright Act of 1998 ("DMCA").16

A. Constitutional Purpose of Copyright Law

accomplish that purpose, "by granting, not to publishers, but to authors, 'exclusive Right[s]' 'for limited Times.'"18

Two phenomena that have led to changes in copyright law that cause First Amendment concerns are globalization and technology. First, the Internet's global nature raises the specter of international piracy, especially with respect to music copyrighted in the United States.27 In response to that threat, U.S. copyright holders have encouraged the federal government to join international treaties such as the Berne Convention that, under the principle of national treatment, afford U.S. copyright holders the same protection in foreign countries enjoyed by copyright holders native to those countries.28 The Berne Convention, however, also incorporates the theory of moral rights:

which requires recognition of the right of an author to be named as the author of a work (the right of paternity) and the right for an author to object to uses of a work which would bring dishonor or discredit on his or her reputation (the right of integrity).29

Second, technological advances have caused copyright owners to fear that copyrights will be more easily infringed.31 Digital information is more frequently copied than nondigital information; computers, for example, routinely make copies of copyrighted works to facilitate access32 even for nonfringing uses. This characteristic of technology raises First Amendment concerns because free speech depends on free flow of information33 and, "in the digital world, where no access is possible except by copying, complete control of copying would mean control of access as well."34 Restricted access to copyrighted digital works inhibits the "democratization of information and knowledge"35 and results in a less informed public.36

B. Creation of Right to Digitally Perform Sound Recordings

1. The Digital Performance Right in Sound Recordings Act

Congress, in 1995, created a limited right "in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission."41 In creating the right, however, Congress took great pains to exclude over-the-air broadcasts such as those effected by commercial radio stations. Congress was primarily concerned with preventing digital subscription42 and interactive43 services from benefiting without compensation to the copyright holders.44 In fact, Congress clearly intended not to subject commercial broadcast radio stations to the new limited right to digitally perform a sound recording.45 Thus, Congress exempted from the digital audio performance right a variety of transmissions, notably nonsubscription broadcast transmissions such as those effected by commercial radio stations licensed by the Federal Communications Commission.