playback on subsequent occasions (or for any other purpose), delivering the
phonorecord to the transmission recipient would be incidental to the
transmission.^373- The Meaning of “Publicly”
Section 106 (4) grants the exclusive right to perform a work “publicly.” Section 101
defines performing a work “publicly” to include performance by transmission to an audience that
may receive the transmission at different times, at different places, or both. Thus, the mere fact
that recipients may download performances of a work at dispersed times on demand through the
Internet does not diminish the “public” nature of such performances. For example, in On
Command Video Corp. v. Columbia Pictures Industries, Inc.,^374 the court held that the public
performance right was implicated by a system of video cassette players wired to hotel rooms
which was capable of transmitting guest-selected movies to the occupants of one room at a time.
In sum, the breadth of definition of “public” performances makes a variety of online
transmissions of “on demand” information potentially within the public performance right. How
contemporaneously the playback of that information must be with the transmission in order for
there to be deemed a “performance” under current United States law remains to be seen. The
WIPO treaties could render many of these issues largely academic in view of the fact that the
current public performance right could become subsumed in the potentially broader right of
“communication to the public” or “making available to the public” contained in the WIPO
treaties discussed below. However, as discussed further below, the implementation of the WIPO
treaties in the DMCA takes a minimalist approach and does not adopt separate rights of
“communication to the public” or “making available to the public.” Accordingly, the noted
uncertainties with respect to the right of public performance are likely to await further
clarification through judicial development.
- Live Nation Motor Sports v. Davis
In Live Nation Motor Sports, Inc. v. Davis,^375 the plaintiff promoted and produced
motorcycle racing events and streamed webcasts of the events on its web site. Although the facts
are unclear from the court’s opinion, the defendant provided links to the plaintiff’s web site that
enabled users of the defendant’s web site to view the webcasts from the defendant’s web site.
The plaintiff sought a preliminary injunction against the defendant, arguing that the defendant’s
links to the plaintiff’s web site constituted an unauthorized display and performance of the
plaintiff’s copyrighted broadcasts.^376
The court granted a preliminary injunction enjoining the defendant from providing
Internet links to the plaintiff’s webcasts of its racing events or otherwise displaying or
(^373) S. Rep. No. 104-128, at 39 (1995), reprinted in 1995 U.S.C.C.A.N. 356, 386.
(^374) 777 F. Supp. 787 (N.D. Cal. 1991).
(^375) 2006 U.S. Dist. LEXIS 89552 (N.D. Tex. Dec. 11, 2006).
(^376) Id. at *3-4.