and the resultant copy is referred to as a “download.” A “limited download” refers to a
download that can be played only for a limited period of time or a limited number of plays.
Streaming potentially implicates at least two rights of the copyright holder in both the
sound recording being transmitted and the musical work embodied in the sound recording – the
right of public performance and the right of reproduction. The right of public performance is
potentially implicated because Section 101 of the copyright statute defines the public
performance of a work to include the following: “to transmit or otherwise communicate a
performance ... of the work ... to the public, by means of any device or process, whether the
members of the public capable of receiving the performance ... receive it in the same place or in
separate places and at the same time or at different times.”^3106 The right of reproduction is
potentially implicated because interim whole or partial copies of the work are made in various
RAM memories in the course of transmission of the work through the Internet.^3107 In addition,
copies of the works available for streaming generally must be stored on one or more servers
operated by the streaming vendor.
Significant legal disputes have arisen over the application of the rights of public
performance and reproduction, as well as the compulsory statutory licenses afforded by the
copyright statute, to streaming and limited downloads. The nature of these disputes, and the
cases decided to date with respect to them, are discussed below.
- The Digital Performance Right – The Section 114(d)(1) Exemption and
Streaming by FCC-Licensed Broadcasters
Section 106 (4) of the copyright statute grants the owner of copyright in a work the
exclusive right to perform the work publicly. The right does not apply, however, to sound
recordings,^3108 except with respect to certain public performances by digital transmission. In
particular, the Digital Performance Right in Sound Recordings Act of 1995 (DPRA)^3109 created
as of February 1, 1996 a limited right to perform a sound recording by means of a “digital audio
transmission.”^3110
Certain digital transmissions of performances are exempt from this right under Section
114(d)(1). Specifically, the performance of a sound recording publicly by means of a digital
audio transmission (i) as part of a “nonsubscription broadcast transmission,”^3111 (ii) as part of a
(^3106) 17 U.S.C. § 101.
(^3107) See the analysis in Sections I.A.1 & I.A.2 above.
(^3108) 17 U.S.C. § 114(a).
(^3109) Pub. L. No. 104-39, 109 Stat. 336 (codified at 17 U.S.C. §§ 106, 114, 115).
(^3110) See 17 U.S.C. § 106(6). Section 114(j)(5) of the copyright statute defines a “digital audio transmission” to
mean “a digital transmission as defined in section 101, that embodies the transmission of a sound recording.
This term does not include the transmission of any audiovisual work.” Section 101 defines “digital
transmission” as “a transmission in whole or in part in a digital or other non-analog format.”
(^3111) 17 U.S.C. § 114(d)(1)(A). A “broadcast” transmission is “a transmission made by a terrestrial broadcast station
licensed as such by the Federal Communications Commission.” Id. § 114(j)(3). A "nonsubscription"