Digital Audio Transmission?

On April 24, 1997, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote in part:
>
> I will say that I see no way performance of a musical work transmitted
> through the air as sound inside a building could qualify as a "digital
> audio transmission"; perhaps I simply haven't mastered the Act's
> labrynthine provisions.

     Mark is being much too modest. His mastery of the Act's labyrinthine provisions is second to no one's. As I said in my previous message, I am admittedly making this harder than it needs to be, and conjuring arguments that I concede are weak for the  purpose of discussion.

     So, let me give it a shot: A "digital audio transmission" is simply a transmission of sounds by digital or non-analog means, and to "transmit" a performance or display means "to communicate it by any device or process whereby images or sounds are re ceived beyond the place from which they are sent." So, if the CD player is in one room (perhaps a control room at the back of the church), and the digital signals of the CD are being "transmitted" from the CD player through the sound system (I guess it w ould have to be a digital sound system to qualify), and are received in the sanctuary, aren't the signals being received in a place (the sanctuary) beyond the place from which they were sent?

     As I explained previously, this argument makes sense only if one takes an exceedingly narrow view of the phrase "beyond the place from which they are sent." I agree with Mark and the others who have commented that the playing of a CD through a digit al sound system is unlikely to be construed to fall within the definition in this manner, even if the signal is received in a different room in the same building. But it becomes less clear if the CD is digitally transmitted to more than one room, such as  the various apartments in one building. (That would bring into play  111(a)(1), an exemption for secondary transmissions within an apartment house that is not limited to musical works.)

     This argument also raises the question of whether the entire transmission has to be digital, or whether the insertion of an analog path at the end (from the speaker to the listener) removes the entire transmission from the definition. Surely a digit al sound recording sent over the Internet does not become less digital simply because it is played through the computer's speakers at the end. And I don't think that there is anything in the statute that confines digital transmissions to wire-connected transmissions; doesn't digital radio broadcasting qualify?

     So just how far apart do the two "places" have to be? And if one is inclined to take a "common sense" position, doesn't that guarantee that eventually there will be litigation concerning this issue (albeit probably not in the context of religious se rvices)?

Tyler T. Ochoa
Assistant Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Fri Apr 25 1997 - 01:18:28 GMT