Table of Contents:

- Amendments to the 1976 Act

2000 Cumulative Supplement to Chapter 1

Amendments to the 1976 Act

103d Congress: 1993–1994

The Copyright Reform Act did not, unfortunately, become law, but in the final days of the 103d Congress the Satellite Home Viewer Act (SHVA) of 1994 did.1 The SHVA extended, until December 31, 1991, the compulsory {Page 2} license of Section 119. In 1997, an interim adjustment of rates will be made by arbitrators using the new “fair market value” standard. The SHVA also contains significant amendments to the “unserved household” provisions of Section 119

On December 8, 1994, President Clinton signed into law the Uruguay Round Agreements Act (URAA), the result of the United States’ signing, on April 15, 1994, of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). Title V of the Act contains a number of amendments to U.S. intellectual property laws.2 Subtitle A contains provisions on copyright,3 subtitle B, trademark,4 and subtitle C, patents.5

The copyright subtitle has four components:

1. Section 511 makes permanent a 1990 ban on the commercial rental of computer programs.

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2. Section 512 provides a new civil cause of action in new chapter 11 of title 17, United States Code, for performers to prevent the unauthorized fixation or communication to the public of the sounds or sounds and images of their live musical performances, as well as the unauthorized reproduction, distribution, sale, rental, or “trafficking in” of copies or phonorecords made from such unauthorized fixations.

3. Section 513 provides new criminal penalties in new Section 2319A of title 18, United States Code, for the same activities covered by Section 512 if done “knowingly, and for purposes of commercial advantage or private financial gain.”

4. Section 514 provides protection to works whose country of origin is a member of the Berne Convention or the World Trade Organization (WTO) if those works are in the public domain in the United States through failure to comply with formalities, lack of national eligibility, or, in the case of pre-1972 sound recordings, lack of subject matter protection.

Additionally, a number of amendments concerning intellectual property were made to the trade laws.6 The URAA is discussed in detail in the supplement to Chapter 17.

104th Congress: 1995–1996 [New]

With the Republican takeover of both the Senate and the House of Representatives (the latter for the first time in more than 40 years), the legislative landscape in Congress changed. As a result of Senate rules prohibiting the chair of a full committee from simultaneously serving as chair of one of that committee’s subcommittees, Senator Orrin Hatch of Utah, chair of the Senate Committee on the Judiciary, abolished the Subcommittee on Patents, Copyrights & Trademarks, which means that those issues are now handled at the full committee level.

On the House side, Representative Carlos Moorhead of California, long the ranking Republican minority member on the “copyright” subcommittee, became its chair, with the subcommittee being renamed the Subcommittee on Courts and Intellectual Property.

Notwithstanding a busy agenda on other matters, both chambers devoted an impressive amount of time to copyright issues, enacting during the first session the Digital Performance Right in Sound Recordings Act of 1995.7 This {Page 4} Act, reviewed in Chapter 12, is extremely limited and is the disappointing culmination of decades of efforts by the recording industry to obtain a performance right for sound recordings. The Act extends the Section 115 mechanical compulsory license to cover electronic distributions, a most unfortunate concession wrung by the National Music Publishers. Indeed, the Act reads far more like a contract negotiated by private parties than legislation drafted by Congress, representing an archetypal example of public-choice theory.

The broad outlines of the Act are as follows:

1. Section 106 is amended to create a new exclusive right to perform a sound recording publicly “by means of a digital audio transmission.”8

2. The “exclusive right” granted in new Section 106(6) is subject to a dazzling series of limitations in an amended Section 114(d) whose complexity now rivals that of Section 111. At the end of the day, the {Page 5} only9 exclusive right granted is for an interactive subscription digital audio transmission service.10

3. Section 114(d)(1) exempts a broad array of broadcast, cable, and satellite retransmissions, including all nonsubscription transmissions and transmissions to business establishments in the ordinary course of their business.

4. Section 114(d)(2) establishes a compulsory license for noninteractive subscription services not exempt under Section 114(d)(1). This license is available so long as the service does not exceed the “sound recording performing complement,” defined in Section 114(j)(7).11

5. Compulsory license fees are to be determined either by voluntary negotiation or, failing agreement, by a copyright arbitration royalty panel convened under the auspices of the Librarian of Congress (Section 114(f)).

6. Proceeds from compulsory license fees are to be divided as follows: 50 percent to the record company, 45 percent to the featured artist(s), 2½ percent to nonfeatured musicians, and 2½ percent to nonfeatured vocalists (Section 114(g)(2)).

7. Section 115, the mechanical compulsory license that originated with the 1909 Act and penny arcades,12 is expanded enormously to include, in {Page 6} Section 115(c)(3)(A), the distribution of phonorecords of nondramatic musical works “by means of a digital transmission which constitutes a digital phonorecord delivery.”13 The license fee paid is the same for “hard-copy” phonorecord distribution until January 1, 1998, after which the rate will be set by voluntary negotiation or by a copyright arbitration royalty panel (Section 115(c)(3)(A), (C), (D)). Bizarrely, for a section that is a limitation on the copyright owner’s rights, a new right is granted in Section 115(c)(3)(H) and (I) for certain unauthorized digital phonorecord deliveries.

8. Except for the provisions in Sections 114(e) and (f) concerning negotiating royalty rates for the subscription compulsory license and the Copyright Office’s role therein, the Act became effective three months after enactment—February 1, 1996.

Bills were introduced to extend the term of copyright an additional 20 years;14 to implement the recommendations of the Clinton administration’s “White Paper” on the National Information Infrastructure;15 to amend the criminal copyright provisions to overturn United States v. LaMacchia;16 to amend the {Page 7} Section 110(5) “home-style” exemption and make other changes in performing rights societies’ licensing practices;17 to amend Section 117 to cover third-party service companies, contrary to the Ninth Circuit’s decision in MAI Systems, Inc. v. Peak;18 to grant “noneconomic” rights to the principal director, screenwriter, and cinematographer of a “theatrical motion picture;”19 to prohibit courts, agencies, and departments from requiring a system of citation used in opinions in which copyright is claimed unless another such system may also be used in which no copyright is claimed;20 to make technical corrections to the Satellite Home Viewer Act of 1994;21 and to move the Copyright Office to a new integrated “United States Intellectual Property Office.”22

A special exemption for reproduction of special-format copies of published nondramatic literary works for use “by blind or other persons with disabilities” was established in a new Section 121 by the Legislative Branch Appropriations Act.23 The exemption is limited to “authorized entities,” defined as nonprofit or governmental agencies that have a “primary mission to provide specialized {Page 8} services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities.”24

105th Congress: 1997–1998 [New]

With the retirement of Representative Carlos Moorhead, the chairmanship of the House of Representatives subcommittee on intellectual property passed to Representative Howard Coble of North Carolina. The ranking minority member is Representative Barney Frank of Massachusetts. On the Senate side, things remain unchanged: copyright matters are handled by the full Judiciary Committee under the chairmanship of Senator Orrin Hatch of Utah.

The 105th Congress passed two pieces of legislation. The first, signed by President Clinton on November 13, 1997,25 is styled a technical amendments act, and in some respects this is both accurate and welcome: over time, drafting errors and inconsistencies have crept into title 17; this act thus provides long-needed corrections. Among the technical amendments made are (1) changes to Sections 119 and chapter 8 as amended by the Satellite Home Viewer Act of 199426 to take into account that Act’s failure to make conforming amendments to arbitration provisions altered when the Copyright Royalty Tribunal was abolished; (2) a needed correction to Section 104A(d)(3) in order to include derivative works whose country of origin is the United States within the reliance party safe harbor of the 1994 GATT amendments;27 (3) elimination of a requirement that the Copyright Office publish a cumulative annual list of notices of intent filed for restored works; and (4) an unnecessary “clarification” regarding the Section 119 rates paid for signals subject and not subject to the FCC’s syndicated exclusivity rules.

Among the other amendments described as “technical” is a post hoc effort to change the effective date of a law that has already gone into effect. The amendment in question revises Section 104A(h)(2) in an attempt to establish January 1, 1996, as the general effective date of the 1994 GATT revisions. In this treatise’s special GATT supplement, it was established that the general effective date of the 1994 GATT revisions was January 1, 1995.28 When January 1, 1995, came along, those revisions automatically became effective. Yet in November 1997 Congress passed, and the President signed, legislation stating that the effective date was January 1, 1996. This is illogical. If the effective date was January 1, 1995, the legislation went into effect on that date, and there is nothing a later Congress can do to change it. If the effective date was January 1, 1996, the legislation went into effect on that date, and it is redundant {Page 9} for a subsequent Congress to pass legislation in November 1997 stating that the bill did go into effect on that date.

The reason for this perplexing action is easy to discern. The House Judiciary Committee was prompted by the Copyright Office, which could not defend its decision to regard January 1, 1996, as the effective date in the face of this treatise’s explanation of why the correct date is January 1, 1995. The House Judiciary Committee report acknowledged this treatise’s treatment of the issue, but was unable to muster a single contrary textual argument. If this treatise’s analysis of the statute was incorrect, one would have thought that the Judiciary Committee would have attempted to demonstrate, by analyzing the text of the statute, why the GATT implementing legislation enacted in 1994 established January 1, 1996, rather than January 1, 1995, as the effective date. The committee report, however, does not even attempt an analysis of the statute. The Judiciary Committee opts instead to assert without support that the January 1, 1995, date is “inconsisten[t] with legislative intent . . . and would cause[] problems.” The committee apparently believes that legislative intent is found everywhere but in the statute. Unfortunately, the committee’s extrastatutory approach fares no better since it fails to cite any statement in a 104th Congress committee report or floor statement asserting that the effective date was intended to be January 1, 1996.

Whether an effective date causes administrative problems has no bearing on how the plain, unambiguous language of a statute is to be construed. If an earlier Congress’s legislation causes administrative difficulties, the subsequent Congress’s role should be to fix such problems through administrative solutions, rather than wasting its time on efforts to change the effective date of a statute that has already gone by.

The “technical” amendments act also makes a number of purely substantive changes. For example, the statute amends Section 411(b) to permit copyright owners of sports programming to serve a notice of infringement not less than 48 hours before the transmission of the game, which replaces the previous notice of not less than 10 days or more than 30 days. The Register of Copyrights is also vested with new authority to increase fees, while the Ninth Circuit’s La Cienega decision,29 which had held that a musical composition fixed for the first time in a pre-1976 Act phonorecord was published by virtue of publication of that phonorecord, is reversed.

Also working its way through Congress is a misguided, unnecessary, and unconstitutional effort to provide sui generis protection to data bases, “or compilations of information,” that do not meet the originality standard required for copyright protection.30 One looks in vain for any statement justifying such congressional pork that overlooks the existence of copyright protection {Page 10} for original data bases. Indeed, the principal stated rationale for the bill is the alleged lack of copyright protection as a result of the Supreme Court’s 1991 Feist decision.31 That rationale is inapplicable when copyright protection is available.

The bill is discussed further in Chapter 3, but the highlights include the following:

· The subject matter protected is a “collection of information,” defined as “information that has been collected and has been organized for the purpose of bringing discrete items of information together in one place or through one source so that users may access them.”

· “Information” is then defined as “facts, data, works of authorship, or any other intangible material capable of being collected and organized in a systematic way.”

· The right is granted in a negative way, i.e., by stating prohibited acts. Those acts are extracting or using in commerce all or a substantial part of a collection of information that has been “gathered, organized, or maintained . . . through the investment of substantial monetary or other resources, so as to cause harm to the actual or potential market. . . . “

· Limited, but redundant educational and news reporting exemptions are available.

· Draconian civil and criminal penalties are provided.

In light of a favorable ruling from arbitrators on the fees satellite retransmitters pay to copyright owners,32 Congress first held a series of oversight hearings,33 followed by a number of bills to alter the existing system.34 The House Judiciary Subcommittee on March 18, 1998, marked up a bill making sweeping changes, principal among which is an effort to obtain parity between cable and satellite rates. Ironically, this approach is diametrically opposed to the position the House took in the 1994 extension-revision of the SHVA, a position that was ultimately adopted by Congress. In any event, sweeping legislation was passed during the 106th Congress, discussed below.

During the 104th Congress (1995–1996), a bill35 was introduced to reverse the LaMacchia36 decision. While this bill died, the No Electronic Theft (NET) Act introduced in the 105th Congress37 passed and was signed by President Clinton on December 16, 1997.38 The NET Act:

· Amends Section 2319 of title 18 to penalize infringement for commercial advantage or private financial gain by reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies{Page 11} or phonorecords of at least one copyrighted work that have a total retail value of more than $2,500. For such activity, the statute imposes (a) a fine of up to $250,000 per person ($500,000 per organization) and/or up to five years’ imprisonment; (b) imprisonment of up to 10 years and a similar fine for a second offense; and (c) imprisonment of up to one year and/or a fine of up to $100,000 in every other case.

· Amends Section 2319 of title 18 to provide only slightly less severe penalties if the crime is committed without financial gain: (a) up to three years’ imprisonment and/or fines of up to $250,000 per individual ($500,000 per organization) in a case involving $2,500 total retail value or more; (b) up to six years’ imprisonment and/or the same fine scale for a second offense; and (c) up to one year’s imprisonment and/or fines up to $100,000 in a case involving $1,000 total retail value.

· Defines “financial gain” to include the “receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.”

· Expands Section 506(a) to penalize willful copyright infringement for traditional or electronic reproduction or distribution of at least one copy or phonorecord during any 180-day period totaling a retail value of over $1,000 (reduced from $2,500). Evidence of mere reproduction or distribution is, however, insufficient to establish willful infringement. The punishment for such infringement, under Section 2319 of title 18, is up to one year’s imprisonment and/or a fine of up to $100,000.

· Lengthens the statute of limitations on criminal infringement from three years to five years.

· Requires that victim impact statements be permitted during the preparation of the presentence report in criminal copyright infringement (Section 2319), bootlegging (Section 2319A), and counterfeiting cases (Section 2320).

Finally, the Act directs that the sentencing guidelines be revised to be sufficiently stringent to deter copyright crimes, thereby recognizing that a judge is bound only by the sentencing guidelines and not, ironically, by the criminal copyright sentencing provisions.

The term-extension bill threatened passage. The bill’s stated purpose is to “extend the term of copyright protection in all copyrighted works that have not fallen into the public domain by twenty years.”39 The bill, however, does much more than simply extend copyright protection by 20 years. These are the highlights:

· Section 302 is amended to grant owners of works not created as well as those already created an additional 20 years of copyright protection for a basic term of protection of life plus 70 years. Anonymous and pseudonymous works and works made for hire are now protected for 95 years from publication or 120 years from creation, whichever occurs first.

· Section 303 is amended so that the copyright in a work created but not published or copyrighted before January 1, 1978, cannot expire before December 31, 2027 (formerly 2002), and that in a work published before December 31, 2027, cannot expire before December 31, 2047.

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· The renewal period in Section 304 for 1909 Act works is extended for 20 years so that transferees and work-made-for-hire owners, as well as the author or heirs, who own copyrighted works in their first term on January 1, 1978, get a renewal term of 67 years. Copyrights in their renewal term when the Act goes into effect will have a copyright term of 95 years from the date the copyright was originally secured.

· For the special case of works whose termination period for the 19 years added by the 1976 Act has passed, the bill gives those copyright owners the right to terminate only as to the additional 20 years. If a termination has previously been made for the 19-year period, the additional 20 years will revert to the person exercising the termination interest.

· A payoff for the Library of Congress’s support is seen in a provision granting libraries more liberal use of works in their last 20 years of protection and exempting libraries from restrictions otherwise provided for under Section 110.

· The Act recommends, but no more than that, that the movie studios and the writers, directors, and performers negotiate over compensation for the additional 20 years of exploiting audiovisual works.

Of course, the bill never would have passed the House of Representatives without the amendments made to Section 110(5), as restaurant and bar owners had successfully stopped term extension from getting out of the House Judiciary Committee until their long-standing complaints about ASCAP and BMI’s music licensing practices were addressed,40 although given the fact that the European Union is now challenging the provision before a WTO panel, whether this part of the bargain will be maintained is open to question. Even so, the floor debate on Section 110(5) provided examples of high drama not seen in copyright legislation in many decades.41 The bill amends Section 110(5) by providing an exemption if the business has up to two televisions or an audio device, and up to six speakers but no more than four in one room, and has seating capacity of no more than 3,500 square feet. These amendments enable restaurant and bar owners to arbitrate their music licensing fees, rather than having fee disputes adjudicated in the Southern District of New York.

On December 20, 1996, the World Intellectual Property Organization (WIPO) adopted the WIPO Copyright and the Performances and Phonograms Treaties. Although the treaties are not in force yet, the United States has ratified them. On October 28, 1998, President Clinton signed into law the Digital Millennium Copyright Act (DMCA) of 1998. The DMCA implements the WIPO Treaties, as well as incorporating three other acts: the Online Copyright Infringement Liability Limitation Act, the Computer Maintenance Competition Assurance Act, and the Vessel Hull Design Protection Act; it also includes various miscellaneous provisions, including most notably a provision expanding the statutory license for subscription transmissions under the Digital Performance Right in Sound Recordings Act to include webcasting.

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Next section: The Digital Millennium Copyright Act

1 Act of October 18, 1994, Pub. L. No. 103-369, 103d Cong., 2d Sess., 108 Stat. 3477. The House passed the bill on August 16, 1994. 140 Cong. Rec. H8418. At this point, some complicated legislative maneuvering took place. Judiciary Committee Chairman Jack Brooks (D-Tex.) asked for and received unanimous consent to discharge the Judiciary Committee from further consideration of the companion Senate bill, S. 1485. 140 Cong. Rec. H8421. Then he moved for S. 1485’s immediate consideration in the House and the passing of the text of the just-passed H.R. 1103 as the replacement text. The motion was agreed to and S. 1485 was passed with the text of H.R. 1103, 140 Cong. Rec. H8422. Chairman Brooks and Congressmen Hughes (D-NJ), Synar (D-Okla.), Boucher (D-Va.), Frank (D-Mass.), Moorhead (R-Calif.), Coble (R-NC), and Fish (R-NY) were appointed as conferees. On August 18, 1994, Senators Hutchinson (R-Tex.) and Hatch (R-Utah) introduced S. 2406, a bill that included only provisions to amend the §111(f) definition of “local service area of a primary transmitter,” the so-called Fox amendment. 140 Cong. Rec. S12099. The Fox amendment was in both H.R. 1103 as passed by the House on August 16 and S. 1485 as passed by the Senate on May 18, 1994. S. 2406 was held at the desk (i.e., not referred to a committee) and passed by the Senate the day of its introduction. 140 Cong. Rec. S12107. On August 19, the Senate disagreed with the House amendments to S. 1485 and appointed Senators DeConcini (D-Ariz.), Leahy (D-Vt.), and Hatch as conferees. 140 Cong. Rec. S12208. At this point, informal conferences were held, with an agreement reached in mid-September. The agreement made only slight changes to the House-passed bill, mostly permitting the arbitrators making the 1996 mid-license adjustment to consider additional information. On September 20, 1994, the House passed the informally conferenced bill using S. 2406 as the vehicle. 140 Cong. Rec. H9268. The Senate passed the identical bill on October 4, 1994, 140Cong. Rec. S14104. On October 7, the Senate finally issued its report on S. 1485. S. Rep. No. 407, 130d Cong., 2d Sess. On October 18, 1994, President Clinton signed S. 2406 into law. See also the supplement to Chapter 12 for more detail on the changes in the legislation.

2 Act of December 8, 1994, Pub. L. No. 103-465, 103d Cong., 2d Sess., 108 Stat. 4809. The legislative history of the Act is as follows. On September 27, 1994, President Clinton sent to Congress a message transmitting the Uruguay Round Agreements, the text of the implementing bill, and the Statement of Administrative Action (the administration’s explanation of the legislation). See Message of the President of the United States Transmitting the Uruguay Round Trade Agreements, Texts of the Agreements Implementing Bill, Statement of Administrative Action and Required Supporting Statements, H.R.Doc. No. 103-316, 103d Cong., 2d Sess. (1994) “House Doc. No. 103-316”). The text of the bill was introduced that same day in the House as H.R. 5110 and in the Senate as S. 2467. H.R. 5110 was passed by the House on November 29, 1994. 140 Cong. Rec. H11535–36. The Senate debated H.R. 5110 on November 30 and December 1, 1994, passing it on December 1. 140 Cong. Rec. S15379. Pursuant to the fast-track procedures under which the Uruguay Round was submitted, no amendments could be made to the bill upon its introduction. On August 12, 1994, the House Subcommittee on Intellectual Property & Judicial Administration and the Senate Subcommittee on Patents, Copyrights & Trademarks held a joint hearing on the issue of the requisite implementing legislation. See Legislation Relating to GATT Implementing Language and Intellectual Property Applicability: Joint Hearing Before the Subcomm. on Intellectual Property & Judicial Admin. of the House Judiciary Comm. and the Senate Subcomm. on Patents, Copyrights & Trademarks of the Senate Judiciary Comm., 103d Cong., 2d Sess.(1994). See also H.R. 4894, 140 Cong. Rec. E1640 (Aug. 3, 1994) (Hughes); S. 2368, 140 Cong. Rec. S10883 (Aug. 5, 1994) (DeConcini) (bills to implement the TRIPs obligations of the Uruguay Round).

3 House Doc. No. 103-316, Vol. 1 at 442–63.

4 Id. at 463–65.

5 Id. at 465–86.

6 See Vol. II of the main volume at 1290–1300 and this supplement.

7 Act of November 1, 1995, Pub. L. No. 104-39, 104th Cong., 1st Sess., 109 Stat. 336. During the 103d Congress, Representative William J. Hughes, chair of the House Subcommittee on Intellectual Property and Judicial Administration, held round-table discussions on the issue. Following these discussions, he introduced H.R. 2576. 139 Cong. Rec. E1724 (daily ed. July 1, 1993). The bill provided a true exclusive right for digital transmissions without any of the limitations found in the Digital Performance Right in Sound Recordings Act of 1995. Subsequently, Senators Hatch and Feinstein (D-Calif.) introduced a similar bill, S. 1421, 139 Cong. Rec. S10897 (Aug. 6, 1993). Largely because of opposition by broadcasters, these bills were not acted on by the 103d Congress. The Digital Performance Right in Sound Recordings Act of 1995 began with S. 227, introduced by Senators Hatch and Feinstein on January 13, 1995. 141 Cong. Rec. S947. (The text of the bill was not inserted in the Congressional Record but was subsequently reproduced in 49 Pat., Trademark & Copyright J. (BNA) 560–63 (Mar. 16, 1995). This bill was substantially similar to S. 1421, which Senators Hatch and Feinstein had introduced in the 103d Congress. A companion House bill, H.R. 1506, was introduced by Representative Moorhead on April 7, 1995. 141 Cong. Rec. H4431. The House subcommittee held hearings on June 21 and 28, 1995. Digital Performance Rights and Sound Recording Act of 1995: Hearing on H.R. 1506 Before the Subcomm. on Courts & Intellectual Property of the House Judiciary Comm., 104th Cong., 1st Sess. (1995). The Senate Judiciary Committee held a hearing on March 9, 1995, Digital Performance Rights & Sound Recording Act of 1995: Hearing on S. 227 Before the Senate Judiciary Comm., 104th Cong., 1st Sess. (1995), and marked up and approved an amendment in the nature of a substitute on June 29, 1995. The bill was reported on August 4, 1995. S. Rep. No. 128, 104th Cong., 1st Sess. The House subcommittee marked up the bill and favorably approved it for full committee action on July 27, 1995. The House Judiciary Committee marked up the bill on September 12, 1995, amending the bill to be identical to S. 227 as passed by the Senate on August 8, 1995 (141 Cong. Rec. S11945), and reported the bill to the floor on October 11, 1995. H.R. Rep. No. 274, 104th Cong., 1st Sess. The House took up H.R. 1506 on October 17, 1995, and in a parliamentary move after passing H.R. 1506, laid it on the table and then passed S. 227 instead. 141 Cong. Rec. H10098. On Senate passage on August 8, 1995, a valuable section-by-section analysis was inserted in the Congressional Record that should be consulted by all interested in the legislation. 141 Cong. Rec. S11951–59. Since the bill was amended on the floor to make a number of technical corrections (Amendment No. 2302, reproduced id. at S11963–67), this analysis is more up to date than the Senate Judiciary Committee report and also explains the amendments made in the bill on the floor.

8 The term “digital audio transmission” is not defined in §101 but in new subsection 114(j)(3) as a “digital transmission as defined in section 101, that embodies the transmission of a sound recording. This term does not include the transmission of any audiovisual work.” “Digital transmission” is defined in §101 as “a transmission in whole or in part in a digital or other nonanalog format.”

9 Another case in which an exclusive right is available in a noninteractive context is a noninteractive subscription service whose transmission exceeds the “sound recording performance complement.” It is also possible for transmission that would be exempt to lose that exemption and therefore be subject to the §106(6) exclusive right, i.e., repeated or willful transmission of a radio signal beyond 150 miles of the station’s transmitter not covered by §114(d)(1)(B)(i)(I).

10 An “interactive service” is defined in §114(j)(4) as one that “enables a member of the public to receive, on request, a transmission of a particular sound recording chosen by or on behalf of the recipient.”

11 The “sound recording performance complement” is defined as the transmission during any three-hour period, on a particular channel used by a transmitting entity, of no more than—

(A) 3 different selections of sound recordings from any one phonorecord lawfully distributed for public performance or lawfully distributed for public performance or sale in the United States, if not more than 2 such selections are transmitted consecutively; or

(B) 4 different selections of sound recordings

(i) by the same featured recording artist; or

(ii) from any set or compilation of phonorecords lawfully distributed together as a unit for public performance or sale in the United States if no more than three such selections are transmitted consecutively: Provided, That the transmission of selections in excess of the numerical limits provided for in clauses (A) and (B) from multiple phonorecords shall nonetheless qualify as a sound recording performance complement if the programming of the multiple phonorecords was not willfully intended to avoid the numerical limitations prescribed in such clauses.

12 See Volume II of the main volume at 831, 873.

13 A “digital phonorecord delivery” is defined in §115(d) as:

each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein. A digital phonorecord delivery does not result from a real-time, noninteractive subscription transmission of a sound recording where no reproduction of the sound recording or the musical work embodied therein is made from the inception of the transmission through to its receipt by the transmission recipient in order to make the sound recording audible.

14 H.R. 989, 103d Cong., 1st Sess., 141 Cong. Rec. H1907, E379 (Feb. 16, 1995) (Moorhead); Copyright Term, Film Labeling, and Film Preservation Legislation: Hearings on H.R. 989, H.R. 1248, and H.R. 1734 Before the House Subcomm. on Courts and Intellectual Property of the House Judiciary Comm., 104th Cong., 1st Sess. (1995); S. 483, 104th Cong., 1st Sess., 141 Cong. Rec. S3390 (Mar. 2, 1995) (Hatch); Copyright Extension of Term: Hearing on S. 483 Before the Senate Judiciary Comm., 104th Cong., 1st Sess. (1995); S. Rep. 315, 104th Cong., 2d Sess. (Mar. 23, 1996).

15 H.R. 2441, 104th Cong., 1st Sess., 141Cong. Rec. H9738, E1893 (Sept. 29, 1995); S. 1284, 104th Cong., 1st Sess., 141 Cong. Rec. S14550 (Sept. 28, 1995) (identical bills); National Information Infrastructure: Joint Hearing on H.R. 2441 and S. 1284 Before the House Subcomm. on Courts & Intellectual Property of the House Judiciary Comm. and the Senate Judiciary Comm., 104th Cong., 1st Sess. (1995); NII Copyright Protection Act: Hearing on H.R. 2441 and S. 1284 Before the House Subcomm. on Courts & Intellectual Property of the House Judiciary Comm., 104th Cong., 2d Sess. (1996). H.R. 2441 was subsequently bundled into H.R. 1861, by the House Subcommittee. See infra note 21.

16 871 F. Supp. 535 (D. Mass. 1994); S. 1122, 104th Cong., 1st Sess. (Aug. 4, 1995) (Leahy), 141 Cong. Rec. S11451.

17 H.R. 789, 103d Cong., 1st Sess. (Feb. 1, 1995) (Sensenbrenner), 141 Cong. Rec. H1051; S. 1137, 104th Cong., 1st Sess. (Aug. 9, 1995) (Thomas) (companion bill to H.R. 789), 141 Cong. Rec. S12079, S12085; H.R. 935, 104th Cong., 1st Sess. (Feb. 14, 1995) (Lipinski), 141 Cong. Rec. S1751; S. 1619, 105th Cong., 2d Sess. (Mar. 15, 1996) (Hatch); S. 2192, S. 1628, 104th Cong., 2d Sess.(Mar. 20, 1996) (Brown), 142 Cong. Rec. S2422, 2424.

18 991 F.2d 511 (9th Cir. 1993), cert. denied, 114 S. Ct. 671 (1994); H.R. 533, 103d Cong., 1st Sess. (Jan. 17, 1995) (Knollenberg), 141 Cong. Rec. H295. An amendment that incorporates some, but not all, of the issues covered by the Knollenberg bill was included in H.R. 1861. See infra note 21.

19 H.R. 1244, 104th Cong., 1st Sess. (Mar. 16, 1995) (Bryant), 141 Cong. Rec. E615.

20 H.R. 1584, 104th Cong., 1st Sess. (May 9, 1995) (Frank), 141 Cong. Rec. H4618.

21 H.R. 1861, 104th Cong., 1st Sess. (June 15, 1995) (Moorhead), 141 Cong. Rec. H6045. See also H.R. 3192, 104th Cong., 2d Sess.(Mar. 28, 1996) (Moorhead). As marked up by the House Subcommittee on December 12, 1995, the bill would also reverse the Ninth Circuit’s decision in La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir.), cert. denied, 116 S. Ct. 331 (1995). As marked up by the House Judiciary Committee in March 12, 1995, this bill would also have amended the URAA to “state” that the date of restoration, generally, was January 1, 1996, to permit derivative works whose country of origin is the United States to enjoy the §104A(d)(3) protections, to amend §117 to include the reproductions of copies made in the context of repair or maintenance that result from merely turning on the computer embodying the program (see H.R. 533, supra note 18), as well as including the NII provisions of H.R. 2441, as amended (see supra note 15); H.R. 1861 was favorably approved, as amended, by the House Judiciary Committee, on May 6, 1996, H.R. Rep. No. 104-554, 104th Cong. 2d Sess.(1996); and passed by the House on June 4, 1996, 142 Cong. Rec. H5781, but it died at the end of the session when the Senate did not act on it.

22 S. 1961, 104th Cong., 2d Sess. (July 16, 1996) (Hatch), 142 Cong. Rec. 7887, 7897. A hearing was held on the bill on September 18, 1996, at which the author testified.

23 Act of September 16, 1996, Pub. L. No. 104-197, 104th Cong., 110 Stat. 2394, 2416–17.

24 17 U.S.C. §121(c)(1) (1996).

25 Pub. L. No. 105-80, 105th Cong., 1st Sess.

26 Pub. L. No. 103-369.

27 W. Patry, Copyright and the GATT: An Interpretation and Legislative History of the Uruguay Round Agreements Act (1995 Supplement to Copyright Law and Practice) 49–50 (1995).

28 Id. at 31–36.

29 LaCienega Music Co. v. ZZ Top, 53 F.3d 90 (9th Cir.), cert. denied, 116 S. Ct. 331 (1995).

30 H.R. 2652, 105th Cong., 1st Sess. (Coble). The bill would create a new chapter 12 in title 17. See id. at §1205(c). Data base protection also passed as part of a “Christmas tree” bill, H.R. 2281, but did not make it into the final cut.

31 Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).

32 See 54 Patent, Trademark & Copyright Journal (BNA) 627.

33 See 55 Patent, Trademark & Copyright Journal (BNA) 9, 37, 310.

34 H.R. 3210, 105th Cong., 2d Sess. (Coble); S. 1270, 105th Cong., 2d Sess.(Hatch); S. 1422 (McCain); H.R. 2921 (Smith); H.R. 2928 (Tauzin).

35 S. 1122, 104th Cong., 1st Sess. (Leahy).

36 United States v. LaMacchia,871 F. Supp. 535 (D. Mass. 1994).

37 H.R. 2265 was introduced in the House on July 25, 1997; it was cosponsored by Chairman Coble and Representatives Frank and Cannon.

38 Act of December 16, 1997, Pub. L. No. 105–147, 105th Cong., 1st Sess.

39 H.R.Rep. No. 452, 105th Cong., 2d Sess. (Mar. 18, 1998).

40 During the 105th Congress, two such separate bills were introduced, H.R. 789 (Sensenbrenner) and S. 28 (Thurmond).

41 See 144 Cong. Rec. H1456–83.