Facing the Music: Webcasting, Interactivity, and a Sensible Statutory Royalty Scheme for Sound Recording Transmissions
2011; Volume: 36; Issue: 3 Linguagem: Inglês
ISSN
0360-795X
Autores Tópico(s)Digital Rights Management and Security
ResumoI. Introduction II. Background A. Pre-DPRA and DMCA Copyright in Sound Recordings B. Digital Performance Right in Sound Recordings Act C. Digital Millennium Copyright Act D. Interactivity and 17 U.S.C. [section] 114(j)(7) E. Arista Records v. Launch Media III. Analysis A. Arista Records v. Launch Media's Direct Effects on User-Influenced Webcasts B. Possible Implications of Arista Records v. Launch Media's Analytical Approach: A Purpose- and Effects-Based Performance Right in Sound Recordings? 1. The Push Parity in Sound Transmission Royalty Rates 2. Technology Anxiety Versus Webcasting's Positive, Promotional Potential VI. Recommendation A. Royalty Parity Among Terrestrial, Satellite, and Internet Radio B. Factoring Promotional Value into a Royalty Rate that Makes Sense All Forms of Radio V. Conclusion I. INTRODUCTION The Internet provides consumers with a myriad of ways to listen to and obtain music that no one ever dreamed of when Congress passed 1976 Copyright Act. (1) Courts are now applying statutes originally drafted to handle records, audiotapes, and terrestrial radio stations to CDs, digital downloads, and online streaming audio. (2) Streaming technology alone comes in a wide array of formats, ranging from individual hobbyists creating niche musical programming (3) and official and unofficial YouTube playlists (4) to subscription jukebox services like Rhapsody (5) and create-your-own station websites like Pandora (6) and Yahoo!'s now-defunct LAUNCHcast service. (7) Congress has been trying to keep up by adapting copyright protections sound recordings as technology advances, but it has not been a smooth process. (8) Each of these new methods of disseminating music has its own unique attributes, and these attributes present their own distinctive assortment of benefits and risks record companies who hold copyrights in musical sound recordings. These new dissemination platforms therefore present legislators and courts with difficult task of crafting copyright protection sound recordings that balances copyright's dual goals: protecting material to incentivize creation, and making copyrighted material available so public can receive maximum benefit from it. (9) One of these new formats that Congress and courts have struggled with is online streaming radio, commonly known as webcasts. (10) A recent case, Arista Records, LLC, v. Launch Media, Inc., (11) resolved one contentious webcasting issue, but this Note examines not only that decision's immediate impact but also effects court's reasoning may have on other aspects of webcasts as they relate to copyright law. Specifically, Part II of this Note provides a summary of statutes that most directly affect webcasting royalties and describes how Arista Records v. Launch Media and its definition of interactivity as applied to webcasts fits into statutory scheme. (12) Part III analyzes immediate effects of Arista Records v. Launch Media ruling on webcasters. (13) Then, it looks at how reasoning similar to that which court used in this case would resolve two other major issues in webcasting: royalty parity among terrestrial, satellite, and web radio, and what role, if any, webcasting's promotional capabilities should play in royalty rate determinations. (14) Finally, Part IV argues that not only did court correctly interpret Congressional intent in its definition of interactivity but that Congress and rate-setting bodies should use court's purpose- and effects-based approach in resolving other webcast-related issues. (15) II. BACKGROUND A. Pre-DPRA and DMCA Copyright in Sound Recordings The Constitution enables Congress to grant for limited Times to Authors ... exclusive Right to their respective Writings purpose of promoting the Progress of Science. …
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