Lex 8256: The Law in Cyberspace Seminar

Webcasting

-Bruce Bielawa


In what ways is webcasting – a.k.a. Internet radio – alike and different from traditional radio?  What similarities or differences are (or should be) reflected in the law?   Spend some time on Live365.com and AnnArborAlive.com to get a feel for large- and small-scale webcasting.  Also go to RadioTime.com and check out "on-demand radio".  (Is this the same medium?)
 
Parts I-III of this article by Emily Harwood take you through the basics of music copyright – copyright of the "musical work" vs. that of the "sound recording", the right of "public performance" vs. that of "reproduction" – and the short but tumultuous legal history of webcasting (the DPRSRA, the DMCA, Bonneville, the CARP, the Librarian of Congress' response and the SWSA).  Try to keep track of which rights are protected by which agencies, which are implicated under what circumstances, and how this regulatory regime changes over time.   We'll go over it in class.
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In 1995 Congress passed the Digital Performance Right Sound Recordings Act ("DPRSRA"), largely in response to lobbying by the Recording Industry Association of America ("RIAA").   The Act created licensing provisions governing "digital phonorecord delivery".  Carefully read the statutory definition of that term:   17 U.S.C. § 115(d) [link fixed -- jtw].  Then read about how the compulsory license for DPDs is administered.
 
Although the language of the DPRSRA is ambiguous as to whether or not webcasters should enjoy the same exemptions from the compulsory license as terrestrial radio broadcasters do, the 1998 Digital Millenium Copyright Act ("DMCA") establishes that they do not.   So although both broadcasters and webcasters must pay rightsholders for the musical work, only webcasters have to pay rightsholders for the sound recording as well.
 
The licensing regime does not just assess fees, either:  it regulates webcasters' programming choices.   The underlying assumption is that digital performance implicates the sound recording's reproduction right IF various operating and programming rules designed to discourage copying are not adhered to.
 
As Harwood tells you, the new rules put many webcasters out of business.  When the Bonneville decision extended the compulsory license web simulcasts of AM/FM radio, many analog radio stations dropped their webcasts as well, including WDET.   To get a sense for what webcasters faced after the DPRSRA and DMCA, read this article by Jamie Zawinski.  Part IV of Harwood argues that the DMCA should never have subjected webcasters to the compulsory license provisions in the first place.   Although the issue is politically settled, this remains a common sentiment.  Is she right?
 
The RIAA was concerned that streaming audio would be highly conducive to copyright-infringing activity (i.e. illegal copying) and replace record sales.   This is despite the fact that streaming audio does not leave an intact audio file on your computer:  individual packets are stored in your computer's RAM to facilitate playing the stream in real time, but the packets are left to be written over at random, and an intact copy does not remain after the stream has concluded.   The tools you use to stream audio over the Internet are not set up to create one for you either.
 
That doesn't mean it can't be done, though.  Take a look at this website, which is accessible via a prominently displayed link from RadioTimes.com, and which promises that "if you can hear it you can record it".   Do the anti-circumvention provisions of the DMCA make this product – or this website – illegal?  Is this sort of activity the kind of significant threat the RIAA thinks it is?
 
The Congressional response to the outcry over webcasting's woes was ultimately to pass the Small Webcaster Settlement Act of 2002 ("SWSA"), which is here.   Does it address Zawinski's concerns?  The Harwood article (and many others of like sentiment) were written after the SWSA.  Why doesn't the SWSA satisfy them?
 
For an example of a recent webcasting case under the present regulatory regime, read Beethoven.com LLC v. Librarian of Cong., 394 F.3d 939 (D.C. Cir. 2005) [link fixed].
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Some further issues:
 
The revenues from the compulsory license for the digital performance right are not just going to the RIAA's clients.   They've also been set up to benefit a party historically short-changed by US music copyright law:   the performing artists (as distinguished from the composers/songwriters, who've always received royalties through ASCAP or BMI).   Read this interview with the membership director of SoundExchange, the new agency that manages digital public performance royalties.   Is this a kind of progress?  Or a cynical political ploy by the RIAA to quell controversy over its new revenue stream?   Or both?
 
Finally, notice how SoundExchange also seems to be filling an administrative gap with respect to royalties paid to foreign royalty organizations for broadcasts of American musical recordings.   Taking a further cue from foreign copyright law:  might there be a webcaster's right?  Read this article by Andy Oram.