Copyright Law Ronald W. Staudt Class 20 November 5, 2013

Class Overview zRight to Make Phonorecords yMusical compositions and compulsory licenses--115 xKaraoke, ringtones, XM-MP3 yReproduction rights in sound recordings—114 xRemix, mash ups and Bridgeport zPerformance Right in Musical Works and Sound Recordings yMusical composition performance right ySound recording performance right by digital audio transmission 106(6) zRight of Public Performance and Display ySect 106(4)- performance ySect 106(5)- display xPerfect 10 v. Amazon

Reproduction Right in Musical Works zMusical works and sound recordings on phonorecordssound recordings zMechanical License to reproduce and distribute phonorecords of nondramatical musical works— Sect 115 yPrior distribution to the public yMechanical license intended for distribution of phonorecords to the public for private use yImitation, rearrangement, derivative limit

Section Availability and Scope of Compulsory License z1) When phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person, including those who make phonorecords or digital phonorecord deliveries, may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work. z*** z(2) A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.

Reproduction Right in Musical Works zMusical compositions and c ompulsory License under 115 yABKCO Music Inc.—karaoke? CD+G = phonorecord? yCompulsory license royalty growth yHarry Fox License yDigital delivery (iStore) yRingtones?

Reproduction Rights In Sound Recordings yReproduction rights in sound recordings—114 xRemix, mash ups and Bridgeport Elvis Costello – Radio, Radio Gregg Gillis- Girl Talk authoringGregg Gillis- Girl Talkauthoring

§ 114. Scope of exclusive rights in sound recordings z(a) The exclusive rights of the owner of copyright in a sound recording are limited to the rights specified by clauses (1), (2), (3) and (6) of section 106, and do not include any right of performance under section 106(4).section 106,section 106(4). z(b) The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality. The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.section 106

Bridgeport zby clarifying the rights of a sound recording copyright owner in regard to derivative works, Section 114(b) makes it clear that the digital sampling of a copyrighted sound recording must typically be licensed to avoid an infringement.... The import of this language is that it does not matter how much a digital sampler alters the actual sounds or whether the ordinary lay observer can or cannot recognize the song or the artist's performance of it. Since the exclusive right encompasses rearranging, remixing, or otherwise altering the actual sounds, the statute by its own terms precludes the use of a substantial similarity test."Section 114(b)

Phonorecords- musical works and sound recordings reproduction rights overview zProfessor Bell’s table.Professor Bell’s table. zReproduction rights in musical works - compulsory license under 115 yABKCO Music Inc.—karaoke? CD+G = phonorecord? yRoyalty growth, Harry Fox, Digital delivery (iStore) zReproduction rights in sound recordings under 114 yDigital sampling-Bridgeport yAudio Home Recording Act—Rio and XM-MP3

Performance Right yMusical Works ASCAP and BMI ySound Recordings xIn 1995 Sound recording performance right by digital audio transmission –Section 106(6)—” in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.” Three tiers xPerformance, distribution and reproduction?

Performance Rights zIs it a performance? yAllen v. AGLOA yUS v. ASCAP xIn re Cellco Partnership-ring tones zIs it public? yRedd Horne yAveco yCartoon Network v. CSC Holdings yWNET v. Aereo yFox Television v. BarryDriller  Warner Bros v. WTV Zediva zIs it exempt? zQuestions on 764-5

§ 106. Exclusive rights in copyrighted works Subject to sections 107 through 121, the owner of a copyright under this title has the exclusive rights to do and to authorize any of the following: *** (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; *** (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

To "perform" a work means zto recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

To perform or display a work "publicly" means-- (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Public Performance and Display Sect. 106(4), (5), & (6) yAllen v. AGLOA yUS v. ASCAP xContemporaneous perceptibility—downloads v. streaming  In re Cellco Partnership-ring tones yColumbia Pictures v. Aveco xPublic? Compare Redd Horne xFirst sale doctrine? xColumbia Pictures v PREI (hotel rooms and vcrs) xOn Command Video v Columbia (hotel rooms and transmissions) yCartoon Network xTransmit clause and “potential audience” xQuestion of framing?

Arroyo Server Primary ingest buffer Secondary buffer Disc storage “Reservation Database” ? Trash Yes Ready To watch Programs “Reservations” Delayed program performed 0.1 sec 1.2 sec Professor Perritt’s Cartoon Network Diagram w/ RWS amendments BMR 1.2 sec

WNET v. Aereo supp. at 109 zIs an Aereo transmission a public performance? 1.Capable of being received by the public 2.No aggregation if copies are individual 3.Multiple private transmission from one copy are aggregated 4.Limits on potential audience are relevant zDissent distinguishes Cablevision… Remote dvr used with licensed stream different from unlicensed copy delivered to internet

Fox Television Stations v. BarryDriller supp. at 113 zRejects 2 nd circuit majority in Cablevision & WNET zSect 101: “whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” zPerformance of the work, not performance of the performance??? zFortnightly and CATV cases

Warner Bros v. WTV zZediva Streams New Releases Through Copyright Loophole By Ryan Singel Zediva Streams New Releases Through Copyright Loophole Quite simply — the company literally rents you a DVD and a DVD player, with your computer, tablet or Google TV as the remote control. Unlike the other streaming movie services, Zediva doesn’t turn a movie into a file on its servers that it can serve to as many users as care to see it at once.Zediva Instead, Zediva’s servers have DVD drives and actual DVDs. So when you rent a movie, that disc goes out of circulation until you release it back to the company, just like in one of those increasingly rare real-world video stores. And like those video stores, Zediva doesn’t need to get permission from the studios to rent out discs, since once they buy the DVD they are free to rent it out or re-sell it, thanks to the first-sale doctrine in U.S. copyright law.first-sale doctrine zStreaming Movie Service Zediva Pays Hollywood $1.8M, Shuts DownStreaming Movie Service Zediva Pays Hollywood $1.8M, Shuts Down By Ryan Singel Last Friday, the Motion Picture Association of America announced that the spunky streaming movie startup Zediva agreed to close down permanently and to pay the studios $1.8 million and end its court battle with Hollywood. Zediva argued that it’s more like a traditional video rental store like Blockbuster, which needs no licensing agreement to rent movies, than a video-on-demand service like Netflix, which must sign deals to stream movies to subscribers. Zediva can only rent out DVDs to one customer at a time, and makes no copies of the DVDs. The MPAA, by contrast, argued that any streaming of a DVD or movie was illegal without their permission, and called the final shutdown a win for the movie industry.

Warner Bros v. WTV zFacts: How did Zediva work? yChannels of distribution and distribution window. yDVRs and DVDs in Santa Clara- 14 days, 4 hour window on same DVR yDefinition of performance- transmit clause zDid D “transmit”---On Command analogy, Redd Horne analogy z“To the public”—different times and different places

Right of Public Display zSect 106(5) and its exceptions y“in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly” zSect. 109(c) y“Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.”

Right of Public Display zPlayboy cases and RTC v. Netcom zPerfect 10 v. Amazon yThumbnails and full sized in-line linked imagesThumbnails and full sized in-line linked images yServer test