from _The Computer Lawyer_, Vol. 15, No. 5., May 1998
Do Infringing Foreign-Based Internet Music Transmissions Constitute Performances Within the U.S.? by Marc E. Mayer
Is an Internet Transmission a Public Performance?
. . .
As defined by the Copyright Act, to "perform" a work, "means to . . . render . . . it, either directly or by means of any device or process." To perform a work "publicly" includes:
(2) to _transmit_ or otherwise communicate a performance
or display of the work . . . to the public, by means of any
device or process, whether the members of the public capable of
receiving the performance or display *receive it in the same
place or in separate places and at the same time or different
times*.
Under the plain language of the statue, Internet transmissions that allow the user to simultaneously receive audible material would implicated public performance rights. Most commentators have taken this position including Clinton's Information Infrastructure Task Force (in its 1995 report, the "White Paper") as well as representatives of the music industry. In 1995, for example, ASCAP created its Department of New Media and Technology Strategy to focus specifically on "efforts to license performances of the works in our repertory presented by means of transmissions over online services."
. . .
If It Is a Public Performance, Where Does The Performance Take Place?
If an Internet transmission is classified as a public performance, an infringing transmission will be actionable under United States copyright law only if the act of public performance takes place within the territory of the United States. Unfortunately, the issue of identifying the sites of a public performance has never been clearly addressed under United States law.
In early jurisprudence under the 1909 Act, the question was easily answered by reference to a dichotomy drawn by some courts between a broadcaster as "performer" and recipient as "receiver."
one who manually or by human agency merely actuates electrical
instrumentalities, whereby inaduible elements that are
omnipresent in the air are made audible to persons who are within
hearing, does not "perform" within the meaning of the copyright
law.
As a corollary, a "performance" must occur at the site of the broadcaster, and not at the home of the listener:
The performance of [the copyrighted work] takes place in the
studio of the broadcasting station, and the operator of the
receiving set in effect does nothing more than one would do who
opened a window and permitted the strains of music of a passing
band to come within the enclosure in which he was located.
This differentiation between active "performer" and passive "listener" was accepted by the Supreme Court, which in the 1968 case *Fortnightly Corp. v. United Artists Television, Inc.* held that transmitters of Cable Television who retransmitted publicly-accessible television signals were "viewers," and not "performers," despite the fact that both parties play "active and indispensible roles in the process."
Due to growth in the cable industry, a perception that business owners were profiting unfairly by exhibiting radio or television broadcasts to paying clientele, and a recognition that the *Fortnightly* principle was inappropriate to technological change, Congress not only deliberately reclassified secondary transmissions as "performances" under the Act, but determined that [my favorite part - Alec] "any individual is performing whenever he or she . . . communicates the performance by turning on a receiving set."
In order to bring broadcasters under its sweep, the Act added the definition that to perform a work "*publicly*" means "to *transmit* or otherwise communicate [it] . . . to the public." The *Fortnightly* dichotomy was thus altered by now differentiating between "public performers" ("broadcasters" or "communicators") and "private performers" (recipients). . . .
end excerpt
I've got a sahweet bootleg of Shellac's recent show at Bimbo's here in SF if anyone's interested. Sorry Steve A. and Co. If yr show was an "experiment in community", like you said, why outlaw recording, why not document the experiment?
-Alec
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