addition, NMPA and HFA publicly announced that it is their policy to license not only RIAA
members but also other digital music services that wish to negotiate comparable agreements.^3276
The agreement provides that a mechanical license obtained under it includes all
reproduction and distribution rights for delivery of On-Demand Streams and Limited
Downloads. The agreement confirms that a mechanical license for these services includes the
right to make server copies, buffer copies and other related copies used in the operation of the
services. The license does not include performance rights, which are licensable separately
through performing rights organizations such as ASCAP, BMI and SESAC.^3277 The agreement
does not establish specific royalty rates. The parties to the agreement committed to negotiate
those rates pursuant to the procedures of Sections 115(c)(3)(B),(C), and (F) of the copyright
statute (described in the opening paragraphs to Section III.E.4 above). If negotiations are not
successful, the applicable rates are to be determined through CARP proceedings.^3278
Finally, under the agreement the parties agreed to the following legal points: (1) that the
process of making On-Demand Streams and Limited Downloads, from the making of server
copies to the transmission and local storage of the stream or download, viewed in its entirety,
involves the making and distribution of a DPD; (2) that a compulsory license is available under
Section 115 for On-Demand Streams and Limited Downloads; and (3) radio-style and other non-
interactive webcasting that would qualify for a statutory license under Section 114(d)(2) does not
involve the making or distribution of a DPD and thus does not require a mechanical license.^3279
On Dec. 14, 2001, the Copyright Office sought public comments on the effect of the
RIAA/NMPA/HFA agreement on the issues identified in its public comment proceedings
initiated on Mar. 9, 2001.^3280 The period for comment on the RIAA/NMPA/HFA agreement was
extended to Feb. 6, 2002, with reply comments due on Feb. 27, 2002.^3281
On June 22, 2004, the Copyright Office amended its regulations governing the content
and service of notices on the copyright owner required to take advantage of the compulsory
license of Section 115. The purpose of the amended regulations was to simplify the notice
process for digital music services wishing to take advantage of the compulsory license for a
broad spectrum of musical works embodied in sound recordings.^3282
(^3276) Id. at 3-4.
(^3277) Id. at 4.
(^3278) Id. at 5.
(^3279) Id. at 6.
(^3280) 66 Fed. Reg. 64783 (Dec. 14, 2001).
(^3281) 67 Fed. Reg. 4694 (Jan. 31, 2002).
(^3282) 69 Fed. Reg. 34578 (June 22, 2004).