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

2. The Digital Millennium Copyright Act

digital works.46 The DMCA also slightly altered the DPRA's statutory licensing scheme for transmissions that did not qualify for an exemption from the digital audio transmission right.47 The DMCA subjected "eligible nonsubscription transmissions" to the statutory licensing scheme, while continuing to exempt other nonsubscription broadcast transmissions. An "eligible nonsubscription transmission" was defined as:

a noninteractive nonsubscription digital audio transmission ... that is made as part of a service that provides audio programming consisting, in whole or in part, of performances of sound recordings, including retransmissions of broadcast transmissions, if the primary purpose of the service is to provide to the public such audio or other entertainment programming, and the primary purpose of the service is not to sell, advertise, or promote particular products or services other than sound recordings, live concerts, or other music-related events.48

assisting the public to make informed decisions about economic matters in the free enterprise system.52

C. Delivering Radio Content on the Internet

With the growth of the Internet in the late 1990s, traditional broadcast radio stations began delivering their content online in an effort to reach listeners who, for example, might have a personal computer in front of them at work but no radio.53 AM/FM webcasting "is the digital audio transmission of a sound recording or live performance over the Internet where no permanent copy of an audio file is created on a listener's computer."54 Two important features of webcasting that relate to the infringement concerns of copyright holders are quality of sound and potential for copying: "the sound quality of webcasted music is generally lower than that of a CD,"55 and "[a]lthough webcasting is quite similar to a radio broadcast, there is no easy way to record it digitally."56

In contrast with AM/FM webcasting, or streaming,57 certain Internet sites facilitate downloading, or "digital phonorecord delivery," which "occurs when a user receives a complete digital audio file onto a hard drive or other media storage device."58 Like webcasting, downloading music in a compressed format like an MP3 may result in imperfect sound quality; unlike webcasting or streaming, however, download delivery creates actual copies of songs on a listener's computer.59

III. BONNEVILLE INTERNATIONAL CORP. V. PETERS

A. Facts and Procedural History

engaged in streaming were subject to the statutory licensing scheme established by the 1995 and 1998 amendments to the Copyright Act, or whether AM/FM audio streaming fell under the "nonsubscription broadcast transmission" exemption60 to the digital audio performance of a sound recording right. In response to the Copyright Office's March 16, 2000, Notice of Proposed Rulemaking, the National Association of Broadcasters ("NAB") filed suit against RIAA seeking a declaratory judgment that AM/FM streaming was exempt from the public performance of a sound recording right in 17 U.S.C. sec 106.61 The Copyright Office refused to suspend its rulemaking process despite the NAB suit, and the Copyright Office's December 11, 2000, rulemaking determined that AM/FM streaming was subject to the statutory license provisions of the Copyright Act because streaming was not exempt from the public performance of a sound recording right.62 Eventually, the NAB suit was dismissed.63