Advanced Copyright Law on the Internet

Thus the Defendants’ server copies of the copyrighted works are not analogous to

master recordings made in the course of the process of making phonorecords to be

distributed to the public. Defendants concede that their server copies themselves

are not for distribution to the public. Since Defendants’ server copies are neither

intended for distribution to the public nor part of a process for distributing digital

copies of the existing phonorecords, Section 115 would not give the Defendants a

right to a compulsory license for the server copies.^3261

Accordingly, the court denied the defendants’ motion for summary judgment that they were
licensed to stream the works.^3262

The court also granted the plaintiffs’ cross motion for partial summary judgment. The
court stated:

While Defendants have been less than candid with the Court, it is clear that what

Defendants are attempting to do is to limit the payments due from them for the

streaming of recordings of copyrighted works to their customers to the licensing

fee that would be applicable when a radio station sends a recording over the

airwaves. It is obvious that Defendants do not want to pay the Plaintiffs the

license fee for a record every time one of their customers listens to recording on

the Internet. However, the only license that Defendants rely on here is one that is

limited to the distribution of records to the public for which there is an established

fee. Defendants choice is to obtain a license for that purpose and pay the fee or

cease their infringing activity.^3263

It is unclear what precisely the “infringing activity” was that the court was referring to. It does
not seem to be the distribution of copies, for the court found the defendants were not distributing
digital copies of phonorecords (and thus Section 115 did not apply). It therefore must have been
the public performance of the compositions via streaming for which the defendants required a
license.

(b) The Copyright Office’s Position – The 2001 DMCA Report and
Comment Proceedings

As discussed in Section II.G.6(a) above, Section 104 of the DMCA requires the Register
of Copyrights and the Assistant Secretary for Communications and Information of the
Commerce Department to study and report to Congress within two years of enactment of the
DMCA with respect to the DMCA’s impact on, among other things, “the relationship between
existing and emergent technology” and Sections 109 and 117 of the copyright statute. The report
required under Section 104 was issued in August of 2001 and is available online at
http://www.loc.gov/copyright/reports/studies/dmca/dmca_study.html.

(^3261) Id. (citation omitted).
(^3262) Id. at 1361.
(^3263) Id.