On Tue, 29 Apr 1997, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> I think I am beginning to see Tyler Ochoa's point about digital
> audio transmissions.
>
> 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.
In most stereo systems the only part that is digital in the playing of a CD is the decoding of the CD within the player. Once it goes from the player to the preamp, it has already been transformed into analog. I believe there are some preamps now that will accept a digital input signal, in which case that first transformation may be bypassed, but then the preamp must transform the digital signal into analog before it gets to the amp. I don't believe (and I am far from an expert in this area) that there is currently any amp that accepts a digital signal. So at least at the point that it gets to the amp, it is no longer digital, and unlike a modem transmission, it never becomes digital again.
This is now Tyler's example:
>
> 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 received 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 would 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?
Mark makes the point that the words "in part" seem to imply that that the process does not have to be entirely digital, and he mentions modem delivery systems which are most commonly part digital and part analog. The first problem I have is that in a modem connection the end product is digital. It starts off digital (just like the CD player) and ends up digital, not like the CD player. The definition of "digital transmission" uses the word "format" at the end of the definition, a somewhat odd choice of words. Does it mean that the format has to be digital at both the sending and receiving point? Not clear.
But in any event, that is just a problem with trying to define what *might* qualify as a digital audio transmission, but moving along to the more specific provisions of section 114, it becomes clear that the playing of a CD in a church or anywhere else through a sound system, whether to another room or to another city, would not implicate the newly granted public performance rights of sound recording owners. Without going into all the details of the statute, the right applies only to interactive services and subscription transmissions. Besides looking at the statutory language, see, e.g., Rebecca F. Martin, The Digital Performance Right In The Sound Recordings Act Of 1995: Can It Protect U.S. Sound Recording Copyright Owners In A Global Market?, 14 Cardozo Arts & Ent. L.J. 733 (1996). See also House Report #274 from the 1st session of the 104th Congress.
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