Re: Do we now have a limited perf. right in sound recording

> I wrote:
> >
> > Let's say that after the Act's effective date a radio station
> >plays some artist's live album. The album was legitimately
> >recorded; the radio station legitimately bought it; and the station
> >has an ASCAP or BMI license for performing the compositions.
> >
> > The copyright owner in the sound recording [of a live
> >performance] sues, claiming that
> >the performance of the sound recording was "transmit[ting] or
> >otherwise communicat[ing] to the public the sounds . . . of a live
> >musical performance." Sec. 1101(a)(2). Does the sound recording
> >owner win? Or will a court limit this language to contemporaneous
> >transmissions, or transmissions of unauthorized fixations?

Mark Lemley:
>
> Definitely the latter. The statute says you can't transmit (or
> record yourself) a "live musical performance." There is no
> prohibition against transmitting a sound recording, which is what
> the radio station is doing here. Absent clear legislative intent,
> I can't imagine a court would read the language otherwise.

    I like that argument. I still think the "sounds of a live musical performance" might be interpreted to include the sounds as fixed on a sound recording. Cf. 114(b) (which talks about "the actual sounds fixed in the sound recording" in a way that implies that sounds captured in a recording are still the same sounds). Nonetheless, Mark's reading seems to be the one that's most consistent with the overall purpose of the section, and that plus the plausible textual interpretation should be a winner. Whew, load off my mind.

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