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The U.S. Copyright Office should allow the courts to decide the crucial issue of whether a temporary copy of a song or other copyrighted work made by a computer must be subject to copyright royalties, public interest groups said today.
The Copyright Office should not try to decide the issue, a group of public interest organizations led by the Electronic Frontier Foundation (EFF), Public Knowledge (PK) and the Center for Democracy and Technology (CDT) said in a filing with the Office in response to a proposed rule published July 16. In addition, Consumers Union, Consumer Federation of America, and U.S. PIRG signed onto the pleading, as did the Computer & Communications Industry Association.
In its proposal for digital delivery of music, the Copyright Office said it has consistently found that “buffer copies meet the statutory definition” of a recording that could be protected by copyright. Buffer copies are the copies of a work a computer makes by assembling data before the music can be heard by a listener, and typically exist for mere seconds.
The seven groups counseled against the Copyright Office reaching that conclusion. In their filing, they noted that a recent decision by the U.S. Appeals Court for the Second Circuit in New York City decided earlier this month reached the opposite conclusion about the nature of buffer copies. The Court said, that the acts of making a buffer copy “do not create copies, as the Copyright Act defines that term.” The Copyright Office should address narrow administrative issues, “rather than attempting to address more far-reaching questions better left to Congress and the courts,” the groups said in their filing.
“The question of the Copyright Office’s regulatory authority is unclear, so it would be better served to let Congress and the courts settle the buffer issue rather than enter a legal morass,” said Sherwin Siy, staff attorney for Public Knowledge. “This is one of the fundamental issues for the digital age, and we think the legal process has already started to give us the answer to the question of the legal standing of buffer copies under copyright law.”
“While the effort to streamline the business of digital music licensing is admirable, the Copyright Office must take care not to substitute its own views on evolving copyright questions for those of the courts and Congress,” said EFF Senior Intellectual Property Attorney Fred von Lohmann. “Fortunately, a cautious and narrow rulemaking can steer a middle course, and we hope that the Copyright Office follows that path.”
“Confusing licensing rules can hamper the evolution and growth of lawful online music services; thriving lawful music services are the only effective long-term antidote to large scale illegal song swapping,” said David Sohn, senior policy counsel for the Center for Democracy & Technology. “But questions about ‘buffer copies’ and ‘server copies’ go way beyond music licensing,” Sohn said. “These raise big and thorny issues about how copyright law applies to Internet services generally. It simply doesn’t make sense to tackle such broad questions in a rulemaking dealing narrowly with the music licensing provisions of a single section of the Copyright Act.”
A copy of the filing is available at: