although the Register’s decision is binding as precedent only on subsequent proceedings, the
CRB chose to exercise its ability to modify the terms (but not the rates) of an agreement, so as to
avoid potential confusion for users of the license at issue.^3290
(e) 2008 Interim Regulation re Compulsory DPD LicenseFollowing a notice of proposed rulemaking, the Copyright Office announced on Nov. 7,
2008 an interim regulation concerning the Section 115 mechanical license for making and
distributing DPDs. Initially, the proposed rule defined a DPD as including all buffer copies
made in the course of streaming, meaning that all music streaming would therefore have been
included in the scope of the mechanical license. However, in light of comments and testimony,
as well as uncertainties created by the Cartoon Network LP v. CSC Holdings, Inc.^3291 decision,
the resulting Interim Regulation backtracked. The Interim Regulation “takes no position on
whether or when a buffer copy independently qualifies as a DPD, or whether or when it is
necessary to obtain a license to cover the reproduction or distribution of a musical work in order
to engage in activities such as streaming.”^3292 Instead, the Interim Regulation simply clarifies
that “(1) whenever there is a transmission that results in a DPD, all reproductions made for the
purpose of making the DPD are also included as part of the DPD, and (2) limited downloads
qualify as DPDs.”^3293 As explained below, the Interim Regulation also does not define the
duration threshold at which a DPD occurs for the purposes of “fixation.”^3294
The issue of fixation vexed the Copyright Office because Cartoon Network indicated that
if a reproduction was not fixed for a sufficient duration then it did not qualify as an infringement
of the right of reproduction. However, Cartoon Network provided no clear answers as to the
minimum duration that still constituted fixation. After considering Cartoon Network’s
determination that a buffer that held a work for not more than 1.2 seconds is not “fixed,” and
contrasting it with the ruling in MAI Sys. Corp. v. Peak Computer, Inc.,^3295 which held that a
duration of several minutes was sufficiently fixed, the interim regulation concluded that Cartoon
Network did not provide guidance as to the minimum duration sufficient for fixation.
Because of this uncertainty, the interim regulation declined to address whether streaming
music that involves making buffer copies (but makes no other copies) is included in the Section
115 mechanical license.^3296 Nonetheless, the Interim Regulation did respond to Cartoon
Network by altering 37 CFR 201.18 to include the requirement that a DPD be “sufficiently
permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a
(^3290) Id. at 6833.
(^3291) 536 F.3d 121 (2d Cir. 2008), cert. denied sub nom. CNN, Inc. v. CSC Holdings, Inc., 557 U.S. 946 (2009).
(^3292) 73 Fed. Reg. 66173, 66174 (Nov. 7, 2008).
(^3293) Id.
(^3294) Id.
(^3295) 991 F.2d 511 (9th Cir. 1993), cert. dismissed, 114 S. Ct. 672 (1994).
(^3296) Id. at 66177.