The report concluded that the making of temporary copies of a work in RAM in the
course of streaming implicates the reproduction right of the copyright holder so long as the
reproduction persists long enough to be perceived, copied, or communicated.^3264 The report
noted considerable uncertainty in the industry concerning the legal status of buffer copies and the
exposure of webcasters to demands for additional royalty payments from the owners of streamed
sound recordings. The report expressed the belief “that there is a strong case that the making of
a buffer copy in the course of streaming is a fair use,” based largely on the fact that buffer copies
do not supersede or supplant the market for the original works and the effect on the actual or
potential market for the works appears to minimal or nonexistent.^3265 Because the sole purpose
for making the buffer copies is to permit an activity that is licensed by the copyright owner and
for which the copyright owner receives a performance royalty, the report concluded that
copyright owners appeared “to be seeking to be paid twice for the same activity.”^3266
Accordingly, the report recommended:that Congress enact legislation amending the Copyright Act to preclude any
liability arising from the assertion of a copyright owner’s reproduction right with
respect to temporary buffer copies that are incidental to a licensed digital
transmission of a public performance of a sound recording and any underlying
musical work.The economic value of licensed streaming is in the public performances of the
musical work and the sound recording, both of which are paid for. The buffer
copies have no independent economic significance. They are made solely to
enable the performance of these works. The uncertainty of the present law
potentially allows those who administer the reproduction right in musical works
to prevent webcasting from taking place – to the detriment of other copyright
owners, webcasters and consumers alike – or to extract an additional payment that
is not justified by the economic value of the copies at issue. Congressional action
is desirable to remove the uncertainty and to allow the activity that Congress
sought to encourage through the adoption of the section 114 webcasting
compulsory license to take place.Although we believe that the fair use defense probably does apply to temporary
buffer copies, this approach is fraught with uncertain application in the courts.
This uncertainty, coupled with the apparent willingness of some copyright owners
to assert claims based on the making of buffer copies, argues for statutory
change.^3267(^3264) See Section III.B.2.a of the Executive Summary of the report, which may be found online at
http://www.loc.gov/copyright/reports/studies/dmca/dmca_executive.html.
(^3265) Id. Section III.B.2.b.
(^3266) Id.
(^3267) Id. Section III.B.2.c. The report also acknowledged a “symmetrical difficulty” faced in the online music
industry relating to digital performances that are incidental to digital music downloads: