The Copyright Office today issued an Order extending the dates for comments on the Notice of Proposed Rulemaking to determine if, in addition to royalties to ASCAP, BMI and SESAC for the public performance of a musical composition, a royalty is also be due for reproductions of the composition made by real-time webcasting such as Internet radio. Comments are now due on Thursday, August 28, and Replies on Monday, September 15. This proceeding, about which we wrote here, is to determine if the statutory royalty of Section 115, dealing with the creation of Digital Phonographic Deliveries ("DPD") is implicated by the RAM and buffer copies made by real-time streaming. The Order also announces that the Copyright Office will hold a hearing on the issue on September 19.
The Order states that the principal reason for the extension was the very recent decision of the US Court of Appeals for the Second Circuit in the case Cartoon Network v. CSC Holdings, finding that Cablevision’s proposal for a "remote DVR," providing the same services as a DVR but located at the cable headend, did not infringe on the program producers’ copyrights. That decision addressed many of the same issues raised by the Copyright Office in its NPRM as to whether "copies" are made, for purposes of Copyright Laws, by RAM and buffer copies. The Second Circuit essentially determined that no copies are made as there is no "fixation" of copies in the RAM and buffers, essentially the opposite conclusion reached by the Copyright Office in its NPRM in this proceeding. If fixed copies are made, then a Copyright holder has the right to receive royalties for the reproduction of its copyrighted work. The seemingly contradictory conclusions of the Second Circuit and the Copyright Office demonstrate the complexity of issues in Copyright law, and we will no doubt see many further proceedings before this issue is finally resolved.