Advanced Copyright Issues on the Internet - Fenwick & West LLP

allow users to listen to songs on those records via streaming. 2261 Nor did the copies stored by thedefendants on their servers trigger applicability of the compulsory mechanical license:Thus the Defendants’ server copies of the copyrighted works are not analogous tomaster recordings made in the course of the process of making phonorecords to bedistributed to the public. Defendants concede that their server copies themselvesare not for distribution to the public. Since Defendants’ server copies are neitherintended for distribution to the public nor part of a process for distributing digitalcopies of the existing phonorecords, Section 115 would not give the Defendants aright to a compulsory license for the server copies. 2262Accordingly, the court denied the defendants’ motion for summary judgment that they werelicensed to stream the works. 2263The court also granted the plaintiffs’ cross motion for partial summary judgment. Thecourt stated:While Defendants have been less than candid with the Court, it is clear that whatDefendants are attempting to do is to limit the payments due from them for thestreaming of recordings of copyrighted works to their customers to the licensingfee that would be applicable when a radio station sends a recording over theairwaves. It is obvious that Defendants do not want to pay the Plaintiffs thelicense fee for a record every time one of their customers listens to recording onthe Internet. However, the only license that Defendants rely on here is one that islimited to the distribution of records to the public for which there is an establishedfee. Defendants choice is to obtain a license for that purpose and pay the fee orcease their infringing activity. 2264It is unclear what precisely the “infringing activity” was that the court was referring to. It doesnot seem to be the distribution of copies, for the court found the defendants were not distributingdigital copies of phonorecords (and thus Section 115 did not apply). It therefore must have beenthe public performance of the compositions via streaming for which the defendants required alicense.(b) The <strong>Copyright</strong> Office’s Position – The 2001 DMCA Report andComment ProceedingsAs discussed in Section II.G.6(a) above, Section 104 of the DMCA requires the Registerof <strong>Copyright</strong>s and the Assistant Secretary for Communications and Information of theCommerce Department to study and report to Congress within two years of enactment of the2261 Id. at 1360.2262 Id. (citation omitted).2263 Id. at 1361.2264 Id.- 493 -