Advanced Copyright Issues on the Internet - Fenwick & West LLP

such transmissions be exempt regardless of whether they are in a digital or nondigital format, inwhole or in part.” 2174 Thus, the court found it clear that the original 1995 exemption forbroadcast transmissions was limited to over-the-air transmissions, and Congress did notcontemplate protecting AM/FM webcasting, which did not exist at the time. Because the DMCAamendments in 1998 to the broadcast transmission exemptions were silent on AM/FMwebcasting, the court found no affirmative grounds to believe that Congress intended to expandthe protections contemplated by the original 1995 legislation. 2175Accordingly, the Third Circuit concluded that Section 114(d)(1)(A)’s nonsubscriptionbroadcast transmission exemption implicates only over-the-air radio broadcast transmissions,and does not cover the Internet streaming of AM/FM broadcast signals. 2176As discussed in detail in Section III.E.2(a) below, in May of 2003, the Digital MediaAssociation, the American Federation of Television and Radio Artists, the American Federationof Musicians of the United States and Canada, and the RIAA agreed on a proposal for royaltyrates to be paid for Internet streaming of AM/FM broadcasts for the period from 1998 throughDec. 31, 2004, and submitted the proposal to the <strong>Copyright</strong> Office for possible adoption withouta CARP. On May 20, 2003, the <strong>Copyright</strong> Office published the proposal for comment. 2177With respect to the related issue of royalties to owners of the copyrights in underlyingmusical works that are streamed online, in Nov. 2001, a federal district court in New Yorkapproved an interim agreement reached between radio stations and music-licensing agencyBroadcast Music Inc. (BMI). Under that agreement, radio stations agreed to pay 1.065% ofrevenues generated by online music streaming, the same rate that radio stations pay for rights tobroadcast the musical compositions over the airwaves. 2178Similarly, in Oct. 2004, a federal district court in New York approved a licenseagreement negotiated between the American Society of Composers, Authors and Publishers(ASCAP) and the Radio Music License Committee (RMLC), representing most of the nearly12,000 U.S. commercial radio stations, for rights to perform ASCAP music over the air and viasimultaneous streaming. The agreement governs the period Jan. 1, 2001 through Dec. 31,2009. 21792174 S. Rep. No. 104-128, at 19 (1995).2175 Id. at 1555.2176 Id.2177 68 Fed. Reg. 27506 (May 20, 2003).2178 Kevin Featherly, “Judge OKs Interim Online-Radio Music Royalty Rate” (Nov. 28, 2001), available as of Feb.2, 2002 at www.newsbytes.com/news/01/172509.html.2179 “Music Publishers Sign Deal on Web Radio” (Oct. 18, 2004), available as of Oct. 19, 2004 atwww.washingtonpost.com/wp-dyn/articles/A41418-2004Oct.18.html. The court’s order approving the licenseagreement was available as of May 1, 2005 at www.ascap.com/licensing/radio/ORDER.pdf. The license setsforth the total amount of industry-wide fees that will be collected by ASCAP during each of the applicableyears of the agreement, and allocates each local radio station’s share of the annual license payment inaccordance with a license fee allocation formula set forth in Exhibit B to the license. A copy of the license was- 474 -