In early efforts (1993) to enact a performance right for sound recordings, after it became clear that the right would be digital only, a series of problems arose beginning with when is a performance a performance and a distribution a distribution, and can a single transmission be both a performance and a distribution? The answers to those questions had a number of implications, extending beyond rights in sound recordings and including the underlying musical composition, where the relative roles of the performing rights and music publishers were at issue. These interests ultimately came into play in the amendments to Section 115, which created a compulsory license for digital phonorecord deliveries ("DPD")
The DPD issue parallels in some ways the distribution right question for sound recordings. Sound recordings already had a distribution right in the 1976 Act: the addition of a digital performance right didn't change the distribution right; thus, both before and after the enactment of Section 106(6), if a distribution is involved, it is Section 106(3) that is implicated.
In the hard copy world, no real questions arose, but when digital dissemination takes place, one has to ask whether there has been a distribution, a transmission, or both. There is a significant difference between Section 106(3) and Sections 106(4) and (6): Sections 106(4) and (6) cover performance (including transmission) of the work, while Section 106(3) covers distribution of copies or phonorecords. Section 106(3) is, therefore, not violated when no distribution of a copy or phonorecord occurs. Copies and phonorecords are defined in Section 101 and involve "material objects."
Do transmissions involve distributions of "material objects?" In the DPD situation, the dividing line Congress drew essentially involved the difference between listening to something in real-time, versus sending a digital version for storage purposes, conduct that was believed to act as a displacement for a hard copy. The issue also arises in peer-to-peer file sharing, where uploads have been argued to be a distribution. That question has recently been briefed in a case in the SDNY, Elektra Entertainment Group Inc. v. Barker, 05 CV 7340 (KMK). The RIAA and the EFF take diametrically opposed views (surprise surprise Gomer). A very large amount of court documents may be found here, if you scroll down to Elektra v. Barker.
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Prof. Patry, I'm assuming that the dividing line you're referring to is what is reflected in the Senate committee report from 1995 (S.Rep. 104-128, the relevant portion of which is pasted below). So, one reponse to EFF's brief would seem to be that Congress hasn't modified the language of 106(3) because it didn't think it needed to -- it already understand the 106(3) "distribution" right to encompass digital downloads (at least when these or in the nature of downloading an entire file for storage and use later, as opposed to merely "streaming" it).
From S.Rep. 104-128:
Section 114(d)(4). Rights not otherwise limited
Under existing principles of copyright law, the transmission or other communication to the public of a musical work constitutes a public performance of that musical work. In addition, the digital transmission of a sound recording that results in the reproduction by or for the transmission recipient of a phonorecord of that sound recording implicates the exclusive rights to reproduce and distribute the sound recording and the musical work embodied therein. New technological uses of copyrighted sound recordings are arising which require an affirmation of existing copyright principles and application of those principles to the digital transmission of sound recordings, to encourage the creation of and protect rights in those sound recordings and the musical works they contain.
This subsection makes clear, in paragraph (4)(A), the Committee's intent that except as explicitly provided in section 114, nothing in that section limits the exclusive right to perform a sound recording publicly by means of a digital audio transmission. Paragraph (4)(B) also makes clear that section 114 does not in any way limit the exclusive right to publicly perform a musical work under section 106(4); the exclusive rights in sound recordings and musical works under sections 106(1) and 106(3); and any other rights and remedies available under title 17. Similarly, the bill does not affect any existing limitation under sections 107-113, sections 116-120, or the unamended portions of sections 114 and 115.
Paragraph (4)(C) ensures that where an activity implicates a sound recording copyright owner's rights under both section 106(6) and some other clause of section 106, the limitations contained in section 114 shall not be construed to limit or impair in any way any other rights the copyright owner may have, or any other exemptions to which users may be entitled, with respect to the particular activity. For example, where a digital audio transmission is a digital phonorecord delivery as well as a public performance of a sound recording, the fact that the public performance may be exempt from liability under section 114(d)(1) or subject to statutory licensing under section 114(f) does not in any way limit or impair the sound recording copyright owner's rights and remedies under section 106(3) against the transmitter for the distribution of a phonorecord of the sound recording. As another example, where an interactive digital audio transmission constitutes a distribution of a phonorecord as well as a public performance of a sound recording, the fact that the transmitting entity has obtained a license to perform the sound recording does not in any way limit or affect the entity's obligation to obtain a license to distribute phonorecords of the sound recording. Similarly, the bill does not affect any existing limitation under sections 107-113, sections 116-120, or the unamended portions of sections 114 and 115.
Analoghole (love the name, btw):
As a former House staffer, I wouldn't ever want to speak for the Senate (when Rick Santorum left the House for the Senate, the comment was that the IQ level in both chambers was raised). Our view in the House subcommittee in 1993-1994 was that whatever was a distribution before would be after Section 106(6) was enacted, and that it was unnecessary to amend Section 106(3) to encompass digital distributions; to the such things would be determined by general principles as set forth largely in the Section 101 definitions.
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