Advanced Copyright Issues on the Internet - Fenwick & West LLP

In sum, RIAA asserts that it is unclear whether the section 115 license permits allof the activities necessary to make On-Demand Streams or Limited Downloads,and if so, at what royalty rates. Consequently, RIAA petitions the Office todetermine (1) whether On-Demand Streams are incidental DPDs covered by thelicense; (2) whether the license includes the right to make server copies or othercopies necessary to transmit On-Demand Streams and Limited Downloads; and(3) the royalty rate applicable to On-Demand Streams (if they are covered by thelicense) and Limited Downloads. 2272The <strong>Copyright</strong> Office sought public comment on these issues and other related issues,including the following:“Is it possible to define ‘incidental DPD’ through a rulemaking proceeding?” 2273“Are some or all the copies of a musical work made that are necessary to stream that workincidental DPDs?” 2274“Aren’t incidental DPDs subject to section 115’s definition of digital phonorecord deliveries? Ifso, does the requirement that a DPD result in a ‘specifically identifiable reproduction’ by or for atransmission recipient rule out some of the copies discussed above from consideration asincidental or general DPDs?” 2275(c) The NMPA/HFA/RIAA Agreement of 2001While the public comment proceedings were ongoing, the RIAA and music publishers,acting through the National Music Publishers Association (NMPA) and the Harry Fox Agency(HFA), announced on Oct. 9, 2001 a breakthrough agreement on the licensing of musical worksfor new subscription services over the Internet. According to a joint statement filed by NMPA,HFA and RIAA with the <strong>Copyright</strong> Office on Dec. 6, 2001, the agreement applies tosubscription digital music services that include among their offerings “On-Demand Streams”(defined as “an on-demand, real-time transmission of a song to a consumer who requests thatsong using streaming technology”) and/or “Limited Downloads” (defined as “a download thatcan be played for a limited period of time or a limited number of plays”). 2276Under the agreement, the parties agreed that a mechanical license under Section 115 forOn-Demand Streams and Limited Downloads is available (contrary to the holding of the Rodgersand Hammerstein case discussed in Section III.E.4(a) above) through HFA to all RIAA member2272 Id. at 14100-101.2273 Id. at 14101.2274 Id.2275 Id. at 14102.2276 Joint Statement of The Recording Industry Association of America, Inc., National Music Publishers’Association, Inc. and The Harry Fox Agency, Inc., In re Matter of Mechanical and Digital PhonorecordDelivery Compulsory License, Docket No. RM 2000-7 (Dec. 6, 2001), at 3 (available as of Feb. 9, 2002 atwww.loc.gov/copyright/carp/10-5agreement.pdf).- 496 -