Re: Performers' Right in Sound Recordings

David McConville writes:
>
> The Working Group on Intellectual Property's proposal was that Congress
> "add to the exclusive rights of a copyright owner in a sound recording
> the right to perform or authorize the performance of the sound recording
> by 'digital transmission.'" It was specified in the proposal that this
> would NOT apply to analog transmission...an odd double-standard that
> puts digital broadcasters in a very uncomfortable position.
>
> Any ideas on this? I'm quite disturbed by these proposals since we
> recently started broadcasting the first 24/7 radio station on the net
> <http://sunsite.unc.edu/wxyc/>. Needless to say, this kind of legal
> bias would suppress the potentials of digital transmissions to the
> point of virtual uselessness...

    Well, my view is that the Working Group's proposal merely clarifies the law, and doesn't change it. Communicating music through the Net always involves reproduction; you have to reproduce it to put it onto your server, and you have to reproduce it every time you send a copy to someone else's computer.

    I agree that the economic effects might be similar to those of a radio broadcast (but note the greater ease of copying), but I think the law even today is rather against today. Cf. MAI v. Peak Systems (9th Cir.), which held that reading a computer program from disk into RAM was a reproduction, and could be an infringement if unauthorized.

• Eugene Volokh, UCLA Law <volokh[_at_]law.ucla.edu>