Re: Digital Audio Transmission?

On 4/29/97, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> I think I am beginning to see Tyler Ochoa's point about digital audio
> transmissions. [Those of you who were way ahead of me, forgive the
> posting.]
>
> Section 106(6) now prohibits performance of a work "by means of a
> digital audio transmission." "Digital transmission" is defined in
> section 101 as "a transmission in whole or in part in a digital or
> other non-analog format." The "in part" language seems to be crucial;
> I take it the intent of the act is to capture information sent by
> modem, for example, even though information sent by modem travels
> along the phone lines between sender and recipient in analog, *not*
> digital, form. Thus, having the information "transmitted" from the
> computer to your own modem presumably qualifies as digital
> transmission in part. If that is true, I can see how someone could
> argue that use of a CD player also constitutes a digital transmission
> in part.
>
> I should know better than to doubt Tyler.

     And I, in turn, thank Mark for making the point more clearly and succinctly than I did. Verbosity sometimes gets the better of me. :-)

     I still would like to hear from anyone in the "Digital Audio Transmission" industry, if there is such as thing. Exactly what was Congress concerned about? Was this simply a change lobbied for by producers of sound recordings in anticipation of digital audio becoming an important medium in the future, as a means of getting a performance right in sound recordings that was denied them under the 1976 Act?

     I can easily imagine that such legislation would be relatively non-controversial and more easily passed while the medium was still relatively new, before the public knew what was happening, rather than after consumers had come to rely on the status quo.

     I can also easily believe that the Amendments were sold to Congress as an extremely narrow exception to the general rule regarding public performance rights in sound recordings, but that after a few years it will be argued that the right is in fact very broad, and that its existence will then be used as an equal-treatment justification for legislating a more general right of public performance in sound recordings. Am I simply being cynical?

Tyler T. Ochoa
Assistant Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Wed Apr 30 1997 - 18:48:00 GMT