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This past Monday, Sherwin wrote about the Cablevision decision by a federal appeals court that held that a remote DVR service did not violate the copyrights of major film studios and television networks. Part of the Cablevision decision was based on the idea that buffers do not implicate the reproduction right and are not infringements. This holding addresses an issue often raised by the content industries and that resonates in other areas of copyright law. In particular, the ruling comes at a time when the Copyright Office is proposing new rules that would establish that buffers do in fact implicate the reproduction right.
The Copyright Office’s proposed rule changes relate to the definition of a Digital Phonorecord Delivery (DPD) – the digital equivalent of a CD sale. Current law rightly treats DPDs as reproductions and distributions that require a license. However, music publishers argue that even temporary reproductions implicate the reproduction right and should be licensed, whether they happen in the course of DPDs or mere streaming transmissions (like webcasts). The problem is that streaming transmissions are considered performances and are already subjected to a separate license. Treating buffers as reproductions would subject them to two licenses, allowing music publishers to double dip. And yet that would be the likely outcome of the Office’s proposed rules.
Here is the Office’s reasoning: the law defines a DPD as any delivery of a phonorecord that results in a “specifically identifiable reproduction by or for the transmission recipient.” A phonorecord in turn is defined as a material object in which sounds are fixed and from which they can be “perceived, reproduced or otherwise communicated.” Although the copies in buffers stay in the RAM for just a transitory moment, they are phonorecords because they can be “perceived, reproduced or otherwise communicated” by the computer. A buffer copy is also “specifically identifiable” because the computer can identify the bits and assemble them as a performance for the listener. Therefore, the buffer is a DPD.
Puzzled? So am I. I always thought that something was a copy if a user, not his computer could perceive it as a copy. After all, it is the user’s ability to keep a copy that affects the market for the music. However, the Copyright Office seems to treat the computer as the user rather than a machine.
The idea behind treating a DPD as a reproduction is that it is similar to the sale of a CD. The customer gets to keep a permanent copy of the song and in exchange for the benefit the copyright owner should be compensated. Buffers confer no such benefit but exist merely because of the nature of digital technology. The Cablevision decision reinforces this point. I hope that the Copyright Office will follow suit.