period of more than transitory duration.”^3297 Although the Regulation noted that some, if not
many, such buffer copies constitute DPDs, it left it to the marketplace to decide the issue, noting
that most licenses that are made pursuant to Section 115 are not actually mechanical licenses, but
rather are voluntary licenses that mirror the rates for mechanical licenses. Providing some
clarification, however, the Interim Regulation did state that cached copies on users’ hard drives
that are created by streaming services do satisfy the fixation/reproduction requirement and
thereby qualify as DPDs.^3298 It further resolved a disagreement over who must be able to
perceive a copy in order for it to be “specifically identifiable” and therefore qualify under one of
the requirements for DPDs, stating that copies that are identifiable by any human or computer are
thereby “specifically identifiable.”^3299
The Interim Regulation declined to comment on what differentiates an “incidental DPD”
from an ordinary DPD, noting that the distinction is not often important because both are
included under the Section 115 license, and stating that if a differentiation was ever required in a
particular case, it could be made in the context of a factual analysis before the CRB. The Interim
Regulation did, however, state that limited downloads qualify as DPDs, citing the fact that they
are delivered, they are phonorecords, and they are specifically identifiable.^3300 According to the
interim regulation, any copy of a phonorecord made in the process of making and distributing a
DPD is covered under the Section 115 license, even if the copy is not delivered to the recipient.
However, “server and intermediate copies that are the source of a transmission that does not
result in the making and distribution of a DPD would not fall within the scope of the [Section
115 mechanical] license.”^3301
(f) Applicability of the Section 115 Compulsory License to
Ringtones
In October of 2006, in response to a request by the Copyright Royalty Board for a ruling,
the Copyright Office issued a memorandum opinion concluding that ringtones qualify as DPDs
eligible for the statutory license of Section 115. Specifically, the Copyright Office ruled as
follows:
We find that ringtones (including monophonic and polyphonic ringtones, as well
as mastertones) are phonorecords and the delivery of such by wire or wireless
technology meets the definition of DPD set forth in the Copyright Act. However,
there are a variety of different types of ringtones ranging from those that are
simple excerpts taken from a larger musical work to ones that include additional
material and may be considered original musical works in and of themselves.
Ringtones that are merely excerpts of a preexisting sound recording fall squarely(^3297) Id. at 66181.
(^3298) Id.
(^3299) Id. at 66178.
(^3300) Id. at 66178-79.
(^3301) Id. at 66180.