Advanced Copyright Law on the Internet

copies necessary to transmit On-Demand Streams and Limited Downloads; and

(3) the royalty rate applicable to On-Demand Streams (if they are covered by the

license) and Limited Downloads.^3271

The Copyright Office sought public comment on these issues and other related issues,
including the following:

• “Is it possible to define ‘incidental DPD’ through a rulemaking proceeding?”^3272


• “Are some or all the copies of a musical work made that are necessary to stream that
  work incidental DPDs?”^3273


• “Aren’t incidental DPDs subject to section 115’s definition of digital phonorecord
  deliveries? If so, does the requirement that a DPD result in a ‘specifically identifiable
  reproduction’ by or for a transmission recipient rule out some of the copies discussed above from
  consideration as incidental or general DPDs?”^3274

(c) The NMPA/HFA/RIAA Agreement of 2001

While the public comment proceedings were ongoing, the RIAA and music publishers,
acting through the National Music Publishers Association (NMPA) and the Harry Fox Agency
(HFA), announced on Oct. 9, 2001 a breakthrough agreement on the licensing of musical works
for new subscription services over the Internet. According to a joint statement filed by NMPA,
HFA and RIAA with the Copyright Office on Dec. 6, 2001, the agreement applies to subscription
digital music services that include among their offerings “On-Demand Streams” (defined as “an
on-demand, real-time transmission of a song to a consumer who requests that song using
streaming technology”) and/or “Limited Downloads” (defined as “a download that can be played
for a limited period of time or a limited number of plays”).^3275

Under the agreement, the parties agreed that a mechanical license under Section 115 for
On-Demand Streams and Limited Downloads is available (contrary to the holding of the Rodgers
and Hammerstein case discussed in Section III.E.4(a) above) through HFA to all RIAA member
companies and to any digital music service that is majority owned by one or more RIAA
members. The rights under any such license can be extended to any service authorized by a
licensee to make On-Demand Streams and/or Limited Downloads of a licensed musical work. In

(^3271) Id. at 14100-101.
(^3272) Id. at 14101.
(^3273) Id.
(^3274) Id. at 14102.
(^3275) Joint Statement of The Recording Industry Association of America, Inc., National Music Publishers’
Association, Inc. and The Harry Fox Agency, Inc., In re Matter of Mechanical and Digital Phonorecord
Delivery Compulsory License, Docket No. RM 2000-7 (Dec. 6, 2001), at 3 (available as of Feb. 9, 2002 at
http://www.loc.gov/copyright/carp/10-5agreement.pdf)..)