About that supposedly legal MP3 download site in Russia....

About that supposedly legal MP3 download site in Russia....

Summary: Back when I first started complaining about how a 99 cent song (purchased at the iTunes Music Store) couldn't be played back on my $20,000 whole-home entertainment system (a shining example of the problem with DRM technology), a bunch of people suggested that I could legally buy music that would work from a Russian-based source of unprotected MP3 files called AllofMP3.com.

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TOPICS: Legal
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Back when I first started complaining about how a 99 cent song (purchased at the iTunes Music Store) couldn't be played back on my $20,000 whole-home entertainment system (a shining example of the problem with DRM technology), a bunch of people suggested that I could legally buy music that would work from a Russian-based source of unprotected MP3 files called AllofMP3.com. It seemed too good to be true. Then, after I did a little homework, I found my instincts to be right. A lot of people outside of Russia were trying to get AllofMP3.com shut down.  That was more than a year ago, and, to this day, AllofMP3.com is still up and running and probably getting more business than ever now that it's in the crosshairs of the US government. That's right. A music pirate in Russia is causing such a stir in the international copyright community that America's top trade official is saying that Russia shouldn't be allowed as member of the all-exclusive WTO club unless it shuts the site down. According to Reuters:

Russia should shut down a pirate music Web site that is robbing U.S. recording companies of sales if it wants to become a member of the World Trade Organization, the top U.S. trade official said on Wednesday.

"I have a hard time imagining Russia becoming a member of the WTO and having a Web site like that up and running that is so clearly a violation of everyone's intellectual property rights," U.S. Trade Representative Susan Schwab told reporters after a speech to a services industry organization.

I never did end up buying music from AllofMP3.com. I respect copyrights and have lived in suffrage. Even though I'd gladly drop a few hundred bucks for music a year, I don't buy songs online since I can't get them to work where I need them to without breaking the law.  So, I just don't bother buying music at all (not a good net result if you're in the music business). 

I also never got an answer to the question I asked in my last posting about AllofMP3.com:

But here’s a question: Let’s say I get a hold of a DRM-free version of some song from a site like AllofMP3.com that’s still up and running (the fact that it’s not shut down yet leads me to believe that the Russian authorities are not yet convinced of the site’s illegality).  If I wanted to make sure the copyright holders got whatever royalties were due to them, how would I do that? In other words, where do I send the check?

The record business doesn't want to answer that question and I'm sure you can figure out why. But what about the artists?

Topic: Legal

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  • There are legal DRM-Less music download sites

    The internet archive for one has a collection of Opensource music and Live band recordings which the artist gave permision for them to hist. It can be found here http://www.archive.org/index.php most notably is the Grateful Dead collection.

    There are also free legal downloads here http://www.garageband.com

    Also there are several legal stores which offer DRM-Free music for sale. Check out the stores listed here http://defectivebydesign.org/en/guide
    Edward Meyers
    • Indie Artists

      Couple of ways to go. I am lucky in that the kinds of music I like (Celtic/Socttish Folk) are almost all indie musicians. So I buy mostly from the musicians websites direct, or when I am at an event where they are playing. Many of this kind of artists also will have free downloads on their websites as well. None of these folks have DRM on their albums. In fact, with the state of the technonlgy today, many are recording and producing their own matterial. Totally cutting out the labels. But my solution only works for those that prefer the kind of music that the indies (of what ever flavor) are into. Could be a trend in the future though. Not for the big high powered performers, but for the smaller groups. The recording companies could in future times discover that a lot of the younger performers simply don't need them any more. They can record, mix, produce and market their own stuff, and keep the profit. And, No, profit is not a four letter word,,,count them,,more than four,,right? :-)
      perryroyce9
      • In my case, it's Barbershop music.

        Barbershop is all but totally ignored by the RIAA group. I buy directly from the artists (my current faves are Vocal Spectrum [current champs, and boy howdy are they [i]awesome![/i] Check out their vids on YouTube while it still exists as such!], O. C. Times [also on YouTube, and third-place medallists this year], Hot Air Buffoons [they may not yet sing quite as well as VS or OCT, but they are easily the funniest comedy quartet currently competing], FRED [1999 champs and a hilarious comedy quartet that no longer competes since a quartet can win only once], Men In Black [up-and-coming young quartet, last year’s Collegiate champs], [i]etc.[/i] — many of these groups also have MySpace pages) or from their honest, above-board, non-ripoff, non-DRM distributors such as Naked Voice and Mainly A Capella.

        How much of RIAA’s sales losses that they blame on piracy is actually because nobody wants their product anymore? That the public is becoming sick up and fed with formulaic crapola and the same old same-old all the time, not to mention paying $20 for a CD that only has one or two songs that the customer actually wants?

        Barbershop is making a major comeback (as Swing did in the 1990s — who’d’ve ever redictedp that [i]that[/i] would happen!? [Anyone who ever read the [i]Generations[/i] research books which promote the theory that generations repeat in cycles of four: that’s who]), becoming popular enough that Men In Black made the Finals on NBC Star Tomorrow (they were disqualified solely because they sang a Public Domain song in the semi-finals due to their contact person not explaining the original songs clause in the contract sufficiently), and the female (Sweet Adelines) group A Capella Gold outright won the Nabisco Oreo jingle public vote contest (beating the second place competitor by over two-fold!), and will be the official voice of Oreo cookies for 2007! And yet, all of the RIAA companies [i]combined[/i] have a grand total of [i]zero[/i] Barbershop albums to the best of my knowledge! It doesn’t fit their gangsta rap and pop country formulæ.
        Joel R
  • Copyright laws apply to all including A-Holes in Russia

    Piracy is a crime worldwide so it makes perfect sense to bar Russia if they ain't willing to play by the rules. From what I've seen most of the online financial scams originate from Russia, so that's another reason to barr the scum. And if it were reported how many weapons the Russians are selling to terrorist organizations to kill innocent people, then people would really be pissed off - as they should be. Russia definitely can not be trusted and they ain't worth the powder to blow them to Hellz!
    BeGoneFool
    • Fair's Fair

      [i]Piracy is a crime worldwide so it makes perfect sense to bar Russia if they ain't willing to play by the rules. [/i]

      So I take it you're in favor of enforcing European copyright law in the USA?
      Yagotta B. Kidding
      • Sure!!!

        Why not? The Supreme Court seems to want to use other Foreign Legal opinions when trying to decide if something is unconstitutional . . .
        jlhenry62
        • Foreign or UN precedence is stupid and unconstitutional

          Foreign or UN precedence is stupid and unconstitutional and it?s sad what the US supreme court has come to this, but that has nothing to do with enforcing copy right law.
          georgeou
          • Arguably Constitutional

            Treaties and the Constitution are given equal weight within the Constitution.

            Me, I prefer the Constitution being supreme.
            rpmyers1
          • Article VI, to be precise. (NT)

            (NT)
            Joel R
      • C'mon, where do we not?

        "So I take it you're in favor of enforcing European copyright law in the USA?"

        That's a ludicrous statement. Where do we in America NOT respect other people's IP? We enforce copy right laws in the USA.

        It's one thing when some dude making $100 per month copies music for himself because he can't afford a $15 CD and I can almost turn a blind eye to that because there was never a sale there to begin with nothing tangible is being stolen in the first place. It's a whole different issue when a Russian company is buying 1 CD and reselling it to the entire country of Russia and beyond. If you can't even understand this basic common sense, I have to start wondering about you.
        georgeou
        • No we don't

          This is actually a contention in WIPO but the US has an exemption for playing TV and music in bars and restaurants without paying a royalty.

          In Europe the length of copyright is Life+50.

          There is no work fore hire in Europe.

          Also in mainland Europe there are home taping rights for movies (The US has one for music but not movies). DVD makers were ordered by the courts to remove their DRM so French citizens could exercise that right.

          Fair use is much more expansive than fair dealings. In Europe with exhaustion of rights (Doctrine of First sale in the US) if the copy gains in value you must pay a royalty on that increase on value when you sell your copy. I'd have to check it but I also don't think exhaustion of rights prevents leasing music.

          The US also never signed onto the Rome treaty and hence no current broadcasters rights.

          In the UK you must deposit complete copies of your work into national libraries to enforce your copyright.

          So in fact the US does not enforce all of those foreign differences/rights.

          As I understand it there are compulsory licenses in Russia, there are compulsory/statutory licenses/royalties in the US also, and allofMP3 is paying the Russian proscribed royalty.

          If that is correct you have it all wrong George.
          Edward Meyers
          • Not true.

            Edward Meyers says: "In the UK you must deposit complete
            copies of your work into national libraries to enforce your
            copyright."

            This is not true. In UK law, copyright exists, in full, from the
            moment the work is completed. There is no requirement to
            publish the work, deposit it anywhere, or otherwise produce
            another copy. Of course, being able to demonstrate that a work
            was created by you at a particular time is helpful if you ever have
            to prove that you created the work, and hence it's good practice
            to lodge copies of things with others, timed and dated. But it's
            not required by law.

            "There is no work fore hire in Europe."

            Although there's technically no "work for hire" in UK copyright
            law, in practice many employment contracts contain the
            equivalent conditions - that for anything you produce in
            association with your work, the copyright is assigned to by you
            to your employer. However, if there's no specific contractual
            condition, the work you produce for someone else is on a "first
            UK use" only basis.
            ianbetteridge
          • Not only true, but true in UK and the US

            Indeed it is true under both US and UK law,

            [i]2. Under the Copyright Act 1911 and equivalent legislation in Ireland, it is obligatory for publishers in the United Kingdom and Ireland to deposit their publications.

            3. The principle of legal deposit has been well established for almost four centuries and has great advantages for authors and publishers. Publications deposited with the libraries are made available to users in their reading rooms, they are preserved for the benefit of future generations, and become part of the national heritage.

            4. There are six legal deposit libraries in the United Kingdom and in Ireland whose holdings make up the National Published Archive of the British Isles. These are:

            * The British Library;
            * The Bodleian Library, Oxford;
            * The University Library, Cambridge;
            * The National Library of Scotland, Edinburgh;
            * The Library of Trinity College, Dublin;
            * The National Library of Wales, Aberystwyth;

            5. Although it is not a Legal Deposit Library under the terms of the Copyright Act, the Library of Queen?s University, Belfast has, following the creation of the New Northern Ireland Assembly, been treated as though it was an official deposit library for Northern Ireland official publications. Northern Ireland official publications have not been deposited systematically in recent years; this initiative is designed to ensure comprehensive receipt of all Northern Ireland official publications from whatever originating body.
            [/i]

            In the US before you can sue for infringement, AKA enforce your copyright, you must register the work also.

            [i]However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

            * Registration establishes a public record of the copyright claim.

            [b]* Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.[/b]

            * If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

            * If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

            [/i]

            However you also miss the original point of the post- That is that the US does not enforce the European laws and the main one there is the US [url=http://www.copyright.gov/title17/92chap1.html#110]exemption for food service establishements[/url] publicly displaying TV and Radio and the length of copyright, the current term in the UK, and most the world is, is shorter than the US for example corp held copyrights expire in 50 years after publication while in the US it is the shorter of 95 years or 120 years after creation.

            UK terms for sound recordings are Copyright expire either 50 years after the recording is made, if the recording is published during that period, 50 years from the publication or if during the initial 50 years the recording is played in public or communicated to the public, 50 years from said communication or playing to the public if the author of the broadcast is an EEA citizen.

            In the US it is Life of artist + 70 Years or the less of 95 years from publication or 120 years from creation.

            In the UK for movies Copyright length is determined by the life of the principal director, the author of the screenplay, the author of the dialogue and the composer of any original music for the film. Where the author of a film is not an EEA national and the country of origin is not in the EEA then duration applies as in the country of origin, provided it does not exceed UK length. If a film does not have any of the four positions mentioned above, then the duration of its copyright is 50 years.
            Edward Meyers
          • Very good...

            But are you aware that the 1911 Act is no longer in force. It was repealed by the 1956 Act which itself has since been repealed by the 1988 Copyright, Designs and Patents Act.
            GeoNorth
          • Well, technically, the UK isn't in Europe.

            Europe is a continent. The UK is an island archipelago off the coast of Europe. Just as Cuba wouldn’t be considered in America (North, Central, nor South).

            More to the point, the UK never fully joined the EU, did it? The UK still uses the GBP £, not the Euro €, for instance. So saying what the UK copyright laws are has no bearing on the post that you replied to, which was talking about the European Union laws.
            Joel R
          • And you're saying this is equivalent somehow?

            "So in fact the US does not enforce all of those foreign differences/rights"

            What you're talking about are minor qualms. It shouldn't even be used in the same sentence, paragraph, or blog as the kind of outright theft going on here with allofmp3.
            georgeou
          • How is it "outright theft"?

            Allofmp3 seems to be perfectly legal within the Russian system, and yes, they do pay royalties on what they sell:
            http://www.theregister.co.uk/2006/06/07/bpi_sues_allofmp3/
            The site AllOfMP3.com belongs to a Russian company and for 6 years it has operated within the country, in full compliance with all Russian laws. Throughout this period the various government offices have scrutinized site's legality and have not found any breach of the law. So far there has been no decision by any Russian court contesting the site's legality.

            The site AllOfMP3.com does regularly transfer substantial amounts of royalties to the Russian organizations for collective management of rights such as ROMS and FAIR, which have granted the site licenses to legally deliver music through the Internet.
            tic swayback
          • Yeah, 1 CD is good for the whole country and beyond

            "The site AllOfMP3.com does regularly transfer substantial amounts of royalties to the Russian organizations for collective management of rights such as ROMS and FAIR"

            And ROMS and FAIR makes the music?!?!?!?!

            That's what you call buying off the politicians to get a "license". That's call a license to steal music. There is no way you can say this is anything other than outright theft.
            georgeou
          • George, it's called compulsory licensing

            You clearly do not understand this aspect of copyright law. It is not outright theft.

            The Government has pre-set rates, in the US it is determined through government selected [url=http://www.copyright.gov/title17/92chap8.html]Copyright Arbitration Royalty Panels[/url], in which anyone can pay the pre-set royalty and they indeed can make, broadcast, and sell copies. The copyright holders can not bar anyone from broadcasting/making copies who have paid the government pre-set royalty.

            [i]And ROMS and FAIR makes the music?!?!?!?!

            That's what you call buying off the politicians to get a "license". That's call a license to steal music. There is no way you can say this is anything other than outright theft.
            [/i]


            in Russia the royalties are paid to these royalty collection agencies. They did not buy 1 CD and distribute it. What is being reported in the news is that they [url=http://www.theregister.co.uk/2006/06/07/bpi_sues_allofmp3/]legally licensed[/url] to broadcast digitally the music under Russian law.
            This is what [url=http://www.roms.ru/?fms=3]ROMS[/url] has to say about it

            [i]We would like to point out the ensuring of performers' and phonogram manufacturers' rights.

            According to Article 39 of the Law of Russian Federation on Copyright and Related Rights, users (ROMS licensees) do not need to obtain consent for transmission of works, including performances and phonograms, via Internet.

            Existing Russian legislation provides that such use is possible without related rights holder's consent but with payment of the due remuneration. Collection and distribution of the aforementioned remuneration is carried out by a society for collective rights administration, in this case - ROMS.
            [/i]

            The Russian law BTW was changed Sept 1 and AllofMP3 claims they are compliance with the new laws.


            The US also has compulsory/statutory licensing.

            These laws are in place for many reasons, mostly to make radio broadcast possible, however they exceed radio broadcast.

            The US rules on this are thus;


            [i]? 114. Scope of exclusive rights in sound recordings46

            ...

            (2) Statutory licensing of certain transmissions. ?

            The performance of a sound recording publicly by means of a subscription digital audio transmission not exempt under paragraph (1), an eligible nonsubscription transmission, or a transmission not exempt under paragraph (1) that is made by a preexisting satellite digital audio radio service shall be subject to statutory licensing, in accordance with subsection (f) if ?

            (A)(i) the transmission is not part of an interactive service;

            (ii) except in the case of a transmission to a business establishment, the transmitting entity does not automatically and intentionally cause any device receiving the transmission to switch from one program channel to another; and

            (iii) except as provided in section 1002(e), the transmission of the sound recording is accompanied, if technically feasible, by the information encoded in that sound recording, if any, by or under the authority of the copyright owner of that sound recording, that identifies the title of the sound recording, the featured recording artist who performs on the sound recording, and related information, including information concerning the underlying musical work and its writer;

            (B) in the case of a subscription transmission not exempt under paragraph (1) that is made by a preexisting subscription service in the same transmission medium used by such service on July 31, 1998, or in the case of a transmission not exempt under paragraph (1) that is made by a preexisting satellite digital audio radio service ?

            (i) the transmission does not exceed the sound recording performance complement; and

            (ii) the transmitting entity does not cause to be published by means of an advance program schedule or prior announcement the titles of the specific sound recordings or phonorecords embodying such sound recordings to be transmitted; and

            (C) in the case of an eligible nonsubscription transmission or a subscription transmission not exempt under paragraph (1) that is made by a new subscription service or by a preexisting subscription service other than in the same transmission medium used by such service on July 31, 1998 ?

            (i) the transmission does not exceed the sound recording performance complement, except that this requirement shall not apply in the case of a retransmission of a broadcast transmission if the retransmission is made by a transmitting entity that does not have the right or ability to control the programming of the broadcast station making the broadcast transmission, unless ?

            (I) the broadcast station makes broadcast transmissions ?

            (aa) in digital format that regularly exceed the sound recording performance complement; or

            (bb) in analog format, a substantial portion of which, on a weekly basis, exceed the sound recording performance complement; and

            (II) the sound recording copyright owner or its representative has notified the transmitting entity in writing that broadcast transmissions of the copyright owner's sound recordings exceed the sound recording performance complement as provided in this clause;

            (ii) the transmitting entity does not cause to be published, or induce or facilitate the publication, by means of an advance program schedule or prior announcement, the titles of the specific sound recordings to be transmitted, the phonorecords embodying such sound recordings, or, other than for illustrative purposes, the names of the featured recording artists, except that this clause does not disqualify a transmitting entity that makes a prior announcement that a particular artist will be featured within an unspecified future time period, and in the case of a retransmission of a broadcast transmission by a transmitting entity that does not have the right or ability to control the programming of the broadcast transmission, the requirement of this clause shall not apply to a prior oral announcement by the broadcast station, or to an advance program schedule published, induced, or facilitated by the broadcast station, if the transmitting entity does not have actual knowledge and has not received written notice from the copyright owner or its representative that the broadcast station publishes or induces or facilitates the publication of such advance program schedule, or if such advance program schedule is a schedule of classical music programming published by the broadcast station in the same manner as published by that broadcast station on or before September 30, 1998;

            (iii) the transmission ?

            (I) is not part of an archived program of less than 5 hours duration;

            (II) is not part of an archived program of 5 hours or greater in duration that is made available for a period exceeding 2 weeks;

            (III) is not part of a continuous program which is of less than 3 hours duration; or

            (IV) is not part of an identifiable program in which performances of sound recordings are rendered in a predetermined order, other than an archived or continuous program, that is transmitted at ?

            (aa) more than 3 times in any 2-week period that have been publicly announced in advance, in the case of a program of less than 1 hour in duration, or

            (bb) more than 4 times in any 2-week period that have been publicly announced in advance, in the case of a program of 1 hour or more in duration, except that the requirement of this subclause shall not apply in the case of a retransmission of a broadcast transmission by a transmitting entity that does not have the right or ability to control the programming of the broadcast transmission, unless the transmitting entity is given notice in writing by the copyright owner of the sound recording that the broadcast station makes broadcast transmissions that regularly violate such requirement;

            (iv) the transmitting entity does not knowingly perform the sound recording, as part of a service that offers transmissions of visual images contemporaneously with transmissions of sound recordings, in a manner that is likely to cause confusion, to cause mistake, or to deceive, as to the affiliation, connection, or association of the copyright owner or featured recording artist with the transmitting entity or a particular product or service advertised by the transmitting entity, or as to the origin, sponsorship, or approval by the copyright owner or featured recording artist of the activities of the transmitting entity other than the performance of the sound recording itself;

            (v) the transmitting entity cooperates to prevent, to the extent feasible without imposing substantial costs or burdens, a transmission recipient or any other person or entity from automatically scanning the transmitting entity's transmissions alone or together with transmissions by other transmitting entities in order to select a particular sound recording to be transmitted to the transmission recipient, except that the requirement of this clause shall not apply to a satellite digital audio service that is in operation, or that is licensed by the Federal Communications Commission, on or before July 31, 1998;

            (vi) the transmitting entity takes no affirmative steps to cause or induce the making of a phonorecord by the transmission recipient, and if the technology used by the transmitting entity enables the transmitting entity to limit the making by the transmission recipient of phonorecords of the transmission directly in a digital format, the transmitting entity sets such technology to limit such making of phonorecords to the extent permitted by such technology;

            (vii) phonorecords of the sound recording have been distributed to the public under the authority of the copyright owner or the copyright owner authorizes the transmitting entity to transmit the sound recording, and the transmitting entity makes the transmission from a phonorecord lawfully made under the authority of the copyright owner, except that the requirement of this clause shall not apply to a retransmission of a broadcast transmission by a transmitting entity that does not have the right or ability to control the programming of the broadcast transmission, unless the transmitting entity is given notice in writing by the copyright owner of the sound recording that the broadcast station makes broadcast transmissions that regularly violate such requirement;

            (viii) the transmitting entity accommodates and does not interfere with the transmission of technical measures that are widely used by sound recording copyright owners to identify or protect copyrighted works, and that are technically feasible of being transmitted by the transmitting entity without imposing substantial costs on the transmitting entity or resulting in perceptible aural or visual degradation of the digital signal, except that the requirement of this clause shall not apply to a satellite digital audio service that is in operation, or that is licensed under the authority of the Federal Communications Commission, on or before July 31, 1998, to the extent that such service has designed, developed, or made commitments to procure equipment or technology that is not compatible with such technical measures before such technical measures are widely adopted by sound recording copyright owners; and

            (ix) the transmitting entity identifies in textual data the sound recording during, but not before, the time it is performed, including the title of the sound recording, the title of the phonorecord embodying such sound recording, if any, and the featured recording artist, in a manner to permit it to be displayed to the transmission recipient by the device or technology intended for receiving the service provided by the transmitting entity, except that the obligation in this clause shall not take effect until 1 year after the date of the enactment of the Digital Millennium Copyright Act and shall not apply in the case of a retransmission of a broadcast transmission by a transmitting entity that does not have the right or ability to control the programming of the broadcast transmission, or in the case in which devices or technology intended for receiving the service provided by the transmitting entity that have the capability to display such textual data are not common in the marketplace.

            (3) Licenses for transmissions by interactive services. ?

            (A) No interactive service shall be granted an exclusive license under section 106(6) for the performance of a sound recording publicly by means of digital audio transmission for a period in excess of 12 months, except that with respect to an exclusive license granted to an interactive service by a licensor that holds the copyright to 1,000 or fewer sound recordings, the period of such license shall not exceed 24 months: Provided, however, That the grantee of such exclusive license shall be ineligible to receive another exclusive license for the performance of that sound recording for a period of 13 months from the expiration of the prior exclusive license.

            (B) The limitation set forth in subparagraph (A) of this paragraph shall not apply if ?

            (i) the licensor has granted and there remain in effect licenses under section 106(6) for the public performance of sound recordings by means of digital audio transmission by at least 5 different interactive services; Provided, however, That each such license must be for a minimum of 10 percent of the copyrighted sound recordings owned by the licensor that have been licensed to interactive services, but in no event less than 50 sound recordings; or

            (ii) the exclusive license is granted to perform publicly up to 45 seconds of a sound recording and the sole purpose of the performance is to promote the distribution or performance of that sound recording.

            (C) Notwithstanding the grant of an exclusive or nonexclusive license of the right of public performance under section 106(6), an interactive service may not publicly perform a sound recording unless a license has been granted for the public performance of any copyrighted musical work contained in the sound recording: Provided, That such license to publicly perform the copyrighted musical work may be granted either by a performing rights society representing the copyright owner or by the copyright owner.

            (D) The performance of a sound recording by means of a retransmission of a digital audio transmission is not an infringement of section 106(6) if ?

            (i) the retransmission is of a transmission by an interactive service licensed to publicly perform the sound recording to a particular member of the public as part of that transmission; and

            (ii) the retransmission is simultaneous with the licensed transmission, authorized by the transmitter, and limited to that particular member of the public intended by the interactive service to be the recipient of the transmission.

            (E) For the purposes of this paragraph ?

            (i) a ?licensor? shall include the licensing entity and any other entity under any material degree of common ownership, management, or control that owns copyrights in sound recordings; and

            (ii) a ?performing rights society? is an association or corporation that licenses the public performance of nondramatic musical works on behalf of the copyright owner, such as the American Society of Composers, Authors and Publishers, Broadcast Music, Inc., and SESAC, Inc.

            (4) Rights not otherwise limited. ?

            (A) Except as expressly provided in this section, this section does not limit or impair the exclusive right to perform a sound recording publicly by means of a digital audio transmission under section 106(6).

            (B) Nothing in this section annuls or limits in any way ?

            (i) the exclusive right to publicly perform a musical work, including by means of a digital audio transmission, under section 106(4);

            (ii) the exclusive rights in a sound recording or the musical work embodied therein under sections 106(1), 106(2) and 106(3); or

            (iii) any other rights under any other clause of section 106, or remedies available under this title as such rights or remedies exist either before or after the date of enactment of the Digital Performance Right in Sound Recordings Act of 1995.

            (C) Any limitations in this section on the exclusive right under section 106(6) apply only to the exclusive right under section 106(6) and not to any other exclusive rights under section 106. Nothing in this section shall be construed to annul, limit, impair or otherwise affect in any way the ability of the owner of a copyright in a sound recording to exercise the rights under sections 106(1), 106(2) and 106(3), or to obtain the remedies available under this title pursuant to such rights, as such rights and remedies exist either before or after the date of enactment of the Digital Performance Right in Sound Recordings Act of 1995.

            (e) Authority for Negotiations. ?

            (1) Notwithstanding any provision of the antitrust laws, in negotiating statutory licenses in accordance with subsection (f), any copyright owners of sound recordings and any entities performing sound recordings affected by this section may negotiate and agree upon the royalty rates and license terms and conditions for the performance of such sound recordings and the proportionate division of fees paid among copyright owners, and may designate common agents on a nonexclusive basis to negotiate, agree to, pay, or receive payments.

            (2) For licenses granted under section 106(6), other than statutory licenses, such as for performances by interactive services or performances that exceed the sound recording performance complement ?

            (A) copyright owners of sound recordings affected by this section may designate common agents to act on their behalf to grant licenses and receive and remit royalty payments: Provided, That each copyright owner shall establish the royalty rates and material license terms and conditions unilaterally, that is, not in agreement, combination, or concert with other copyright owners of sound recordings; and

            (B) entities performing sound recordings affected by this section may designate common agents to act on their behalf to obtain licenses and collect and pay royalty fees: Provided, That each entity performing sound recordings shall determine the royalty rates and material license terms and conditions unilaterally, that is, not in agreement, combination, or concert with other entities performing sound recordings.

            (f) Licenses for Certain Nonexempt Transmissions.47

            (1)(A) 48 No later than 30 days after the enactment of the Digital Performance Right in Sound Recordings Act of 1995, the Librarian of Congress shall cause notice to be published in the Federal Register of the initiation of voluntary negotiation proceedings for the purpose of determining reasonable terms and rates of royalty payments for subscription transmissions by preexisting subscription services and transmissions by preexisting satellite digital audio radio services specified by subsection (d)(2) of this section during the period beginning on the effective date of such Act and ending on December 31, 2001, or, if a copyright arbitration royalty panel is convened, ending 30 days after the Librarian issues and publishes in the Federal Register an order adopting the determination of the copyright arbitration royalty panel or an order setting the terms and rates (if the Librarian rejects the panel's determination). Such terms and rates shall distinguish among the different types of digital audio transmission services then in operation. Any copyright owners of sound recordings, preexisting subscription services, or preexisting satellite digital audio radio services may submit to the Librarian of Congress licenses covering such subscription transmissions with respect to such sound recordings. The parties to each negotiation proceeding shall bear their own costs.

            (B) In the absence of license agreements negotiated under subparagraph (A), during the 60-day period commencing 6 months after publication of the notice specified in subparagraph (A), and upon the filing of a petition in accordance with section 803(a)(1), the Librarian of Congress shall, pursuant to chapter 8, convene a copyright arbitration royalty panel to determine and publish in the Federal Register a schedule of rates and terms which, subject to paragraph (3), shall be binding on all copyright owners of sound recordings and entities performing sound recordings affected by this paragraph. In establishing rates and terms for preexisting subscription services and preexisting satellite digital audio radio services, in addition to the objectives set forth in section 801(b)(1), the copyright arbitration royalty panel may consider the rates and terms for comparable types of subscription digital audio transmission services and comparable circumstances under voluntary license agreements negotiated as provided in subparagraph (A).

            (C)(i) Publication of a notice of the initiation of voluntary negotiation proceedings as specified in subparagraph (A) shall be repeated, in accordance with regulations that the Librarian of Congress shall prescribe ?

            (I) no later than 30 days after a petition is filed by any copyright owners of sound recordings, any preexisting subscription services, or any preexisting satellite digital audio radio services indicating that a new type of subscription digital audio transmission service on which sound recordings are performed is or is about to become operational; and

            (II) in the first week of January 2001, and at 5-year intervals thereafter.

            (ii) The procedures specified in subparagraph (B) shall be repeated, in accordance with regulations that the Librarian of Congress shall prescribe, upon filing of a petition in accordance with section 803(a)(1) during a 60-day period commencing ?

            (I) 6 months after publication of a notice of the initiation of voluntary negotiation proceedings under subparagraph (A) pursuant to a petition under clause (i)(I) of this subparagraph; or

            (II) on July 1, 2001, and at 5-year intervals thereafter.

            (iii) The procedures specified in subparagraph (B) shall be concluded in accordance with section 802.

            (2)(A) No later than 30 days after the date of the enactment of the Digital Millennium Copyright Act, the Librarian of Congress shall cause notice to be published in the Federal Register of the initiation of voluntary negotiation proceedings for the purpose of determining reasonable terms and rates of royalty payments for public performances of sound recordings by means of eligible nonsubscription transmissions and transmissions by new subscription services specified by subsection (d)(2) during the period beginning on the date of the enactment of such Act and ending on December 31, 2000, or such other date as the parties may agree. Such rates and terms shall distinguish among the different types of eligible nonsubscription transmission services and new subscription services then in operation and shall include a minimum fee for each such type of service. Any copyright owners of sound recordings or any entities performing sound recordings affected by this paragraph may submit to the Librarian of Congress licenses covering such eligible nonsubscription transmissions and new subscription services with respect to such sound recordings. The parties to each negotiation proceeding shall bear their own costs.

            (B) In the absence of license agreements negotiated under subparagraph (A), during the 60-day period commencing 6 months after publication of the notice specified in subparagraph (A), and upon the filing of a petition in accordance with section 803(a)(1), the Librarian of Congress shall, pursuant to chapter 8, convene a copyright arbitration royalty panel to determine and publish in the Federal Register a schedule of rates and terms which, subject to paragraph (3), shall be binding on all copyright owners of sound recordings and entities performing sound recordings affected by this paragraph during the period beginning on the date of the enactment of the Digital Millennium Copyright Act and ending on December 31, 2000, or such other date as the parties may agree. Such rates and terms shall distinguish among the different types of eligible nonsubscription transmission services then in operation and shall include a minimum fee for each such type of service, such differences to be based on criteria including, but not limited to, the quantity and nature of the use of sound recordings and the degree to which use of the service may substitute for or may promote the purchase of phonorecords by consumers. In establishing rates and terms for transmissions by eligible nonsubscription services and new subscription services, the copyright arbitration royalty panel shall establish rates and terms that most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller. In determining such rates and terms, the copyright arbitration royalty panel shall base its decision on economic, competitive and programming information presented by the parties, including ?

            (i) whether use of the service may substitute for or may promote the sales of phonorecords or otherwise may interfere with or may enhance the sound recording copyright owner's other streams of revenue from its sound recordings; and

            (ii) the relative roles of the copyright owner and the transmitting entity in the copyrighted work and the service made available to the public with respect to relative creative contribution, technological contribution, capital investment, cost, and risk.

            In establishing such rates and terms, the copyright arbitration royalty panel may consider the rates and terms for comparable types of digital audio transmission services and comparable circumstances under voluntary license agreements negotiated under subparagraph (A).

            (C)(i) Publication of a notice of the initiation of voluntary negotiation proceedings as specified in subparagraph (A) shall be repeated in accordance with regulations that the Librarian of Congress shall prescribe ?

            (I) no later than 30 days after a petition is filed by any copyright owners of sound recordings or any eligible nonsubscription service or new subscription service indicating that a new type of eligible nonsubscription service or new subscription service on which sound recordings are performed is or is about to become operational; and

            (II) in the first week of January 2000, and at 2-year intervals thereafter, except to the extent that different years for the repeating of such proceedings may be determined in accordance with subparagraph (A).

            (ii) The procedures specified in subparagraph (B) shall be repeated, in accordance with regulations that the Librarian of Congress shall prescribe, upon filing of a petition in accordance with section 803(a)(1) during a 60-day period commencing ?

            (I) 6 months after publication of a notice of the initiation of voluntary negotiation proceedings under subparagraph (A) pursuant to a petition under clause (i)(I); or

            (II) on July 1, 2000, and at 2-year intervals thereafter, except to the extent that different years for the repeating of such proceedings may be determined in accordance with subparagraph (A).

            (iii) The procedures specified in subparagraph (B) shall be concluded in accordance with section 802.

            (3) License agreements voluntarily negotiated at any time between 1 or more copyright owners of sound recordings and 1 or more entities performing sound recordings shall be given effect in lieu of any determination by a copyright arbitration royalty panel or decision by the Librarian of Congress.

            (4)(A) The Librarian of Congress shall also establish requirements by which copyright owners may receive reasonable notice of the use of their sound recordings under this section, and under which records of such use shall be kept and made available by entities performing sound recordings.

            (B) Any person who wishes to perform a sound recording publicly by means of a transmission eligible for statutory licensing under this subsection may do so without infringing the exclusive right of the copyright owner of the sound recording ?

            (i) by complying with such notice requirements as the Librarian of Congress shall prescribe by regulation and by paying royalty fees in accordance with this subsection; or

            (ii) if such royalty fees have not been set, by agreeing to pay such royalty fees as shall be determined in accordance with this subsection.

            (C) Any royalty payments in arrears shall be made on or before the twentieth day of the month next succeeding the month in which the royalty fees are set.

            (5)(A) Notwithstanding section 112(e) and the other provisions of this subsection, the receiving agent may enter into agreements for the reproduction and performance of sound recordings under section 112(e) and this section by any 1 or more small commercial webcasters or noncommercial webcasters during the period beginning on October 28, 1998, and ending on December 31, 2004, that, once published in the Federal Register pursuant to subparagraph (B), shall be binding on all copyright owners of sound recordings and other persons entitled to payment under this section, in lieu of any determination by a copyright arbitration royalty panel or decision by the Librarian of Congress. Any such agreement for small commercial webcasters shall include provisions for payment of royalties on the basis of a percentage of revenue or expenses, or both, and include a minimum fee. Any such agreement may include other terms and conditions, including requirements by which copyright owners may receive notice of the use of their sound recordings and under which records of such use shall be kept and made available by small commercial webcasters or noncommercial webcasters. The receiving agent shall be under no obligation to negotiate any such agreement. The receiving agent shall have no obligation to any copyright owner of sound recordings or any other person entitled to payment under this section in negotiating any such agreement, and no liability to any copyright owner of sound recordings or any other person entitled to payment under this section for having entered into such agreement.

            (B) The Copyright Office shall cause to be published in the Federal Register any agreement entered into pursuant to subparagraph (A). Such publication shall include a statement containing the substance of subparagraph (C). Such agreements shall not be included in the Code of Federal Regulations. Thereafter, the terms of such agreement shall be available, as an option, to any small commercial webcaster or noncommercial webcaster meeting the eligibility conditions of such agreement.

            (C) Neither subparagraph (A) nor any provisions of any agreement entered into pursuant to subparagraph (A), including any rate structure, fees, terms, conditions, or notice and recordkeeping requirements set forth therein, shall be admissible as evidence or otherwise taken into account in any administrative, judicial, or other government proceeding involving the setting or adjustment of the royalties payable for the public performance or reproduction in ephemeral phonorecords or copies of sound recordings, the determination of terms or conditions related thereto, or the establishment of notice or recordkeeping requirements by the Librarian of Congress under paragraph (4) or section 112(e)(4). It is the intent of Congress that any royalty rates, rate structure, definitions, terms, conditions, or notice and recordkeeping requirements, included in such agreements shall be considered as a compromise motivated by the unique business, economic and political circumstances of small webcasters, copyright owners, and performers rather than as matters that would have been negotiated in the marketplace between a willing buyer and a willing seller, or otherwise meet the objectives set forth in section 801(b).

            (D) Nothing in the Small Webcaster Settlement Act of 2002 or any agreement entered into pursuant to subparagraph (A) shall be taken into account by the United States Court of Appeals for the District of Columbia Circuit in its review of the determination by the Librarian of Congress of July 8, 2002, of rates and terms for the digital performance of sound recordings and ephemeral recordings, pursuant to sections 112 and 114.

            (E) As used in this paragraph ?

            (i) the term ?noncommercial webcaster? means a webcaster that ?

            (I) is exempt from taxation under section 501 of the Internal Revenue Code of 1986 (26 U.S.C. 501);

            (II) has applied in good faith to the Internal Revenue Service for exemption from taxation under section 501 of the Internal Revenue Code and has a commercially reasonable expectation that such exemption shall be granted; or

            (III) is operated by a State or possession or any governmental entity or subordinate thereof, or by the United States or District of Columbia, for exclusively public purposes;

            (ii) the term ?receiving agent? shall have the meaning given that term in section 261.2 of title 37, Code of Federal Regulations, as published in the Federal Register on July 8, 2002; and

            (iii) the term ?webcaster? means a person or entity that has obtained a compulsory license under section 112 or 114 and the implementing regulations therefor to make eligible nonsubscription transmissions and ephemeral recordings.

            (F) The authority to make settlements pursuant to subparagraph (A) shall expire December 15, 2002, except with respect to noncommercial webcasters for whom the authority shall expire May 31, 2003.

            (g) Proceeds from Licensing of Transmissions. ?

            (1) Except in the case of a transmission licensed under a statutory license in accordance with subsection (f) of this section ?

            (A) a featured recording artist who performs on a sound recording that has been licensed for a transmission shall be entitled to receive payments from the copyright owner of the sound recording in accordance with the terms of the artist's contract; and

            (B) a nonfeatured recording artist who performs on a sound recording that has been licensed for a transmission shall be entitled to receive payments from the copyright owner of the sound recording in accordance with the terms of the nonfeatured recording artist's applicable contract or other applicable agreement.

            (2) An agent designated to distribute receipts from the licensing of transmissions in accordance with subsection (f) shall distribute such receipts as follows:

            (A) 50 percent of the receipts shall be paid to the copyright owner of the exclusive right under section 106(6) of this title to publicly perform a sound recording by means of a digital audio transmission.

            (B) 2 ? percent of the receipts shall be deposited in an escrow account managed by an independent administrator jointly appointed by copyright owners of sound recordings and the American Federation of Musicians (or any successor entity) to be distributed to nonfeatured musicians (whether or not members of the American Federation of Musicians) who have performed on sound recordings.

            (C) 2 ? percent of the receipts shall be deposited in an escrow account managed by an independent administrator jointly appointed by copyright owners of sound recordings and the American Federation of Television and Radio Artists (or any successor entity) to be distributed to nonfeatured vocalists (whether or not members of the American Federation of Television and Radio Artists) who have performed on sound recordings.

            (D) 45 percent of the receipts shall be paid, on a per sound recording basis, to the recording artist or artists featured on such sound recording (or the persons conveying rights in the artists' performance in the sound recordings).

            (3) A nonprofit agent designated to distribute receipts from the licensing of transmissions in accordance with subsection (f) may deduct from any of its receipts, prior to the distribution of such receipts to any person or entity entitled thereto other than copyright owners and performers who have elected to receive royalties from another designated agent and have notified such nonprofit agent in writing of such election, the reasonable costs of such agent incurred after November 1, 1995, in ?

            (A) the administration of the collection, distribution, and calculation of the royalties;

            (B) the settlement of disputes relating to the collection and calculation of the royalties; and

            (C) the licensing and enforcement of rights with respect to the making of ephemeral recordings and performances subject to licensing under section 112 and this section, including those incurred in participating in negotiations or arbitration proceedings under section 112 and this section, except that all costs incurred relating to the section 112 ephemeral recordings right may only be deducted from the royalties received pursuant to section 112.

            (4) Notwithstanding paragraph (3), any designated agent designated to distribute receipts from the licensing of transmissions in accordance with subsection (f) may deduct from any of its receipts, prior to the distribution of such receipts, the reasonable costs identified in paragraph (3) of such agent incurred after November 1, 1995, with respect to such copyright owners and performers who have entered with such agent a contractual relationship that specifies that such costs may be deducted from such royalty receipts.

            (h) Licensing to Affiliates. ?

            (1) If the copyright owner of a sound recording licenses an affiliated entity the right to publicly perform a sound recording by means of a digital audio transmission under section 106(6), the copyright owner shall make the licensed sound recording available under section 106(6) on no less favorable terms and conditions to all bona fide entities that offer similar services, except that, if there are material differences in the scope of the requested license with respect to the type of service, the particular sound recordings licensed, the frequency of use, the number of subscribers served, or the duration, then the copyright owner may establish different terms and conditions for such other services.

            (2) The limitation set forth in paragraph (1) of this subsection shall not apply in the case where the copyright owner of a sound recording licenses ?

            (A) an interactive service; or

            (B) an entity to perform publicly up to 45 seconds of the sound recording and the sole purpose of the performance is to promote the distribution or performance of that sound recording.

            (i) No Effect on Royalties for Underlying Works. ? License fees payable for the public performance of sound recordings under section 106(6) shall not be taken into account in any administrative, judicial, or other governmental proceeding to set or adjust the royalties payable to copyright owners of musical works for the public performance of their works. It is the intent of Congress that royalties payable to copyright owners of musical works for the public performance of their works shall not be diminished in any respect as a result of the rights granted by section 106(6).

            (j) Definitions. ? As used in this section, the following terms have the following meanings:

            (l) An ?affiliated entity? is an entity engaging in digital audio transmissions covered by section 106(6), other than an interactive service, in which the licensor has any direct or indirect partnership or any ownership interest amounting to 5 percent or more of the outstanding voting or non-voting stock.

            (2) An ?archived program? is a predetermined program that is available repeatedly on the demand of the transmission recipient and that is performed in the same order from the beginning, except that an archived program shall not include a recorded event or broadcast transmission that makes no more than an incidental use of sound recordings, as long as such recorded event or broadcast transmission does not contain an entire sound recording or feature a particular sound recording.

            (3) A ?broadcast? transmission is a transmission made by a terrestrial broadcast station licensed as such by the Federal Communications Commission.

            (4) A ?continuous program? is a predetermined program that is continuously performed in the same order and that is accessed at a point in the program that is beyond the control of the transmission recipient.

            (5) A ?digital audio transmission? is 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.

            (6) An ?eligible nonsubscription transmission? is a noninteractive nonsubscription digital audio transmission not exempt under subsection (d)(1) that is made as part of a service that provides audio programming consisting, in whole or in part, of performances of sound recordings, including retransmissions of broadcast transmissions, if the primary purpose of the service is to provide to the public such audio or other entertainment programming, and the primary purpose of the service is not to sell, advertise, or promote particular products or services other than sound recordings, live concerts, or other music-related events.

            (7) An ?interactive service? is one that enables a member of the public to receive a transmission of a program specially created for the recipient, or on request, a transmission of a particular sound recording, whether or not as part of a program, which is selected by or on behalf of the recipient. The ability of individuals to request that particular sound recordings be performed for reception by the public at large, or in the case of a subscription service, by all subscribers of the service, does not make a service interactive, if the programming on each channel of the service does not substantially consist of sound recordings that are performed within 1 hour of the request or at a time designated by either the transmitting entity or the individual making such request. If an entity offers both interactive and noninteractive services (either concurrently or at different times), the noninteractive component shall not be treated as part of an interactive service.

            (8) A ?new subscription service? is a service that performs sound recordings by means of noninteractive subscription digital audio transmissions and that is not a preexisting subscription service or a preexisting satellite digital audio radio service.

            (9) A ?nonsubscription? transmission is any transmission that is not a subscription transmission.

            (10) A ?preexisting satellite digital audio radio service? is a subscription satellite digital audio radio service provided pursuant to a satellite digital audio radio service license issued by the Federal Communications Commission on or before July 31, 1998, and any renewal of such license to the extent of the scope of the original license, and may include a limited number of sample channels representative of the subscription service that are made available on a nonsubscription basis in order to promote the subscription service.

            (11) A ?preexisting subscription service? is a service that performs sound recordings by means of noninteractive audio-only subscription digital audio transmissions, which was in existence and was making such transmissions to the public for a fee on or before July 31, 1998, and may include a limited number of sample channels representative of the subscription service that are made available on a nonsubscription basis in order to promote the subscription service.

            (12) A ?retransmission? is a further transmission of an initial transmission, and includes any further retransmission of the same transmission. Except as provided in this section, a transmission qualifies as a ?retransmission? only if it is simultaneous with the initial transmission. Nothing in this definition shall be construed to exempt a transmission that fails to satisfy a separate element required to qualify for an exemption under section 114(d)(1).

            (13) The ?sound recording performance complement? is the transmission during any 3-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 sale in the United States, if no 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.

            (14) A ?subscription? transmission is a transmission that is controlled and limited to particular recipients, and for which consideration is required to be paid or otherwise given by or on behalf of the recipient to receive the transmission or a package of transmissions including the transmission.

            (15) A ?transmission? is either an initial transmission or a retransmission.
            ? 115. Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords49

            In the case of nondramatic musical works, the exclusive rights provided by clauses (1) and (3) of section 106, to make and to distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section.

            (a) Availability and Scope of Compulsory License. ?

            (1) When phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person, including those who make phonorecords or digital phonorecord deliveries, may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work. A person may obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use, including by means of a digital phonorecord delivery. A person may not obtain a compulsory license for use of the work in the making of phonorecords duplicating a sound recording fixed by another, unless:

            (i) such sound recording was fixed lawfully; and

            (ii) the making of the phonorecords was authorized by the owner of copyright in the sound recording or, if the sound recording was fixed before February 15, 1972, by any person who fixed the sound recording pursuant to an express license from the owner of the copyright in the musical work or pursuant to a valid compulsory license for use of such work in a sound recording.

            (2) A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.

            (b) Notice of Intention to Obtain Compulsory License. ?

            (1) Any person who wishes to obtain a compulsory license under this section shall, before or within thirty days after making, and before distributing any phonorecords of the work, serve notice of intention to do so on the copyright owner. If the registration or other public records of the Copyright Office do not identify the copyright owner and include an address at which notice can be served, it shall be sufficient to file the notice of intention in the Copyright Office. The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.

            (2) Failure to serve or file the notice required by clause (1) forecloses the possibility of a compulsory license and, in the absence of a negotiated license, renders the making and distribution of phonorecords actionable as acts of infringement under section 501 and fully subject to the remedies provided by sections 502 through 506 and 509.

            (c) Royalty Payable under Compulsory License.50 ?

            (1) To be entitled to receive royalties under a compulsory license, the copyright owner must be identified in the registration or other public records of the Copyright Office. The owner is entitled to royalties for phonorecords made and distributed after being so identified, but is not entitled to recover for any phonorecords previously made and distributed.

            (2) Except as provided by clause (1), the royalty under a compulsory license shall be payable for every phonorecord made and distributed in accordance with the license. For this purpose, and other than as provided in paragraph (3), a phonorecord is considered ?distributed? if the person exercising the compulsory license has voluntarily and permanently parted with its possession. With respect to each work embodied in the phonorecord, the royalty shall be either two and three-fourths cents, or one-half of one cent per minute of playing time or fraction thereof, whichever amount is larger.51

            (3)(A) A compulsory license under this section includes the right of the compulsory licensee to distribute or authorize the distribution of a phonorecord of a nondramatic musical work by means of a digital transmission which constitutes a digital phonorecord delivery, regardless of whether the digital transmission is also a public performance of the sound recording under section 106(6) of this title or of any nondramatic musical work embodied therein under section 106(4) of this title. For every digital phonorecord delivery by or under the authority of the compulsory licensee ?

            (i) on or before December 31, 1997, the royalty payable by the compulsory licensee shall be the royalty prescribed under paragraph (2) and chapter 8 of this title; and

            (ii) on or after January 1, 1998, the royalty payable by the compulsory licensee shall be the royalty prescribed under subparagraphs (B) through (F) and chapter 8 of this title.

            (B) Notwithstanding any provision of the antitrust laws, any copyright owners of nondramatic musical works and any persons entitled to obtain a compulsory license under subsection (a)(1) may negotiate and agree upon the terms and rates of royalty payments under this paragraph and the proportionate division of fees paid among copyright owners, and may designate common agents to negotiate, agree to, pay or receive such royalty payments. Such authority to negotiate the terms and rates of royalty payments includes, but is not limited to, the authority to negotiate the year during which the royalty rates prescribed under subparagraphs (B) through (F) and chapter 8 of this title shall next be determined.

            (C) During the period of June 30, 1996, through December 31, 1996, the Librarian of Congress shall cause notice to be published in the Federal Register of the initiation of voluntary negotiation proceedings for the purpose of determining reasonable terms and rates of royalty payments for the activities specified by subparagraph (A) during the period beginning January 1, 1998, and ending on the effective date of any new terms and rates established pursuant to subparagraph (C), (D) or (F), or such other date (regarding digital phonorecord deliveries) as the parties may agree. Such terms and rates shall distinguish between (i) digital phonorecord deliveries where the reproduction or distribution of a phonorecord is incidental to the transmission which constitutes the digital phonorecord delivery, and (ii) digital phonorecord deliveries in general. Any copyright owners of nondramatic musical works and any persons entitled to obtain a compulsory license under subsection (a)(1) may submit to the Librarian of Congress licenses covering such activities. The parties to each negotiation proceeding shall bear their own costs.

            (D) In the absence of license agreements negotiated under subparagraphs (B) and (C), upon the filing of a petition in accordance with section 803(a)(1), the Librarian of Congress shall, pursuant to chapter 8, convene a copyright arbitration royalty panel to determine a schedule of rates and terms which, subject to subparagraph (E), shall be binding on all copyright owners of nondramatic musical works and persons entitled to obtain a compulsory license under subsection (a)(1) during the period beginning January 1, 1998, and ending on the effective date of any new terms and rates established pursuant to subparagraph (C), (D) or (F), or such other date (regarding digital phonorecord deliveries) as may be determined pursuant to subparagraphs (B) and (C). Such terms and rates shall distinguish between (i) digital phonorecord deliveries where the reproduction or distribution of a phonorecord is incidental to the transmission which constitutes the digital phonorecord delivery, and (ii) digital phonorecord deliveries in general. In addition to the objectives set forth in section 801(b)(1), in establishing such rates and terms, the copyright arbitration royalty panel may consider rates and terms under voluntary license agreements negotiated as provided in subparagraphs (B) and (C). The royalty rates payable for a compulsory license for a digital phonorecord delivery under this section shall be established de novo and no precedential effect shall be given to the amount of the royalty payable by a compulsory licensee for digital phonorecord deliveries on or before December 31, 1997. The Librarian of Congress shall also establish requirements by which copyright owners may receive reasonable notice of the use of their works under this section, and under which records of such use shall be kept and made available by persons making digital phonorecord deliveries.

            (E)(i) License agreements voluntarily negotiated at any time between one or more copyright owners of nondramatic musical works and one or more persons entitled to obtain a compulsory license under subsection (a)(1) shall be given effect in lieu of any determination by the Librarian of Congress. Subject to clause (ii), the royalty rates determined pursuant to subparagraph (C), (D) or (F) shall be given effect in lieu of any contrary royalty rates specified in a contract pursuant to which a recording artist who is the author of a nondramatic musical work grants a license under that person's exclusive rights in the musical work under paragraphs (1) and (3) of section 106 or commits another person to grant a license in that musical work under paragraphs (1) and (3) of section 106, to a person desiring to fix in a tangible medium of expression a sound recording embodying the musical work.

            (ii) The second sentence of clause (i) shall not apply to ?

            (I) a contract entered into on or before June 22, 1995 and not modified thereafter for the purpose of reducing the royalty rates determined pursuant to subparagraph (C), (D) or (F) or of increasing the number of musical works within the scope of the contract covered by the reduced rates, except if a contract entered into on or before June 22, 1995, is modified thereafter for the purpose of increasing the number of musical works within the scope of the contract, any contrary royalty rates specified in the contract shall be given effect in lieu of royalty rates determined pursuant to subparagraph (C), (D) or (F) for the number of musical works within the scope of the contract as of June 22, 1995; and

            (II) a contract entered into after the date that the sound recording is fixed in a tangible medium of expression substantially in a form intended for commercial release, if at the time the contract is entered into, the recording artist retains the right to grant licenses as to the musical work under paragraphs (1) and (3) of section 106.

            (F) The procedures specified in subparagraphs (C) and (D) shall be repeated and concluded, in accordance with regulations that the Librarian of Congress shall prescribe, in each fifth calendar year after 1997, except to the extent that different years for the repeating and concluding of such proceedings may be determined in accordance with subparagraphs (B) and (C).

            (G) Except as provided in section 1002(e) of this title, a digital phonorecord delivery licensed under this paragraph shall be accompanied by the information encoded in the sound recording, if any, by or under the authority of the copyright owner of that sound recording, that identifies the title of the sound recording, the featured recording artist who performs on the sound recording, and related information, including information concerning the underlying musical work and its writer.

            (H)(i) A digital phonorecord delivery of a sound recording is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and section 509, unless ?

            (I) the digital phonorecord delivery has been authorized by the copyright owner of the sound recording; and

            (II) the owner of the copyright in the sound recording or the entity making the digital phonorecord delivery has obtained a compulsory license under this section or has otherwise been authorized by the copyright owner of the musical work to distribute or authorize the distribution, by means of a digital phonorecord delivery, of each musical work embodied in the sound recording.

            (ii) Any cause of action under this subparagraph shall be in addition to those available to the owner of the copyright in the nondramatic musical work under subsection (c)(6) and section 106(4) and the owner of the copyright in the sound recording under section 106(6).

            (I) The liability of the copyright owner of a sound recording for infringement of the copyright in a nondramatic musical work embodied in the sound recording shall be determined in accordance with applicable law, except that the owner of a copyright in a sound recording shall not be liable for a digital phonorecord delivery by a third party if the owner of the copyright in the sound recording does not license the distribution of a phonorecord of the nondramatic musical work.

            (J) Nothing in section 1008 shall be construed to prevent the exercise of the rights and remedies allowed by this paragraph, paragraph (6), and chapter 5 in the event of a digital phonorecord delivery, except that no action alleging infringement of copyright may be brought under this title against a manufacturer, importer or distributor of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or against a consumer, based on the actions described in such section.

            (K) Nothing in this section annuls or limits

            (i) the exclusive right to publicly perform a sound recording or the musical work embodied therein, including by means of a digital transmission, under sections 106(4) and 106(6),

            (ii) except for compulsory licensing under the conditions specified by this section, the exclusive rights to reproduce and distribute the sound recording and the musical work embodied therein under sections 106(1) and 106(3), including by means of a digital phonorecord delivery, or (iii) any other rights under any other provision of section 106, or remedies available under this title, as such rights or remedies exist either before or after the date of enactment of the Digital Performance Right in Sound Recordings Act of 1995.

            (L) The provisions of this section concerning digital phonorecord deliveries shall not apply to any exempt transmissions or retransmissions under section 114(d)(1). The exemptions created in section 114(d)(1) do not expand or reduce the rights of copyright owners under section 106(1) through (5) with respect to such transmissions and retransmissions.

            (4) A compulsory license under this section includes the right of the maker of a phonorecord of a nondramatic musical work under subsection (a)(1) to distribute or authorize distribution of such phonorecord by rental, lease, or lending (or by acts or practices in the nature of rental, lease, or lending). In addition to any royalty payable under clause (2) and chapter 8 of this title, a royalty shall be payable by the compulsory licensee for every act of distribution of a phonorecord by or in the nature of rental, lease, or lending, by or under the authority of the compulsory licensee. With respect to each nondramatic musical work embodied in the phonorecord, the royalty shall be a proportion of the revenue received by the compulsory licensee from every such act of distribution of the phonorecord under this clause equal to the proportion of the revenue received by the compulsory licensee from distribution of the phonorecord under clause (2) that is payable by a compulsory licensee under that clause and under chapter 8. The Register of Copyrights shall issue regulations to carry out the purpose of this clause.

            (5) Royalty payments shall be made on or before the twentieth day of each month and shall include all royalties for the month next preceding. Each monthly payment shall be made under oath and shall comply with requirements that the Register of Copyrights shall prescribe by regulation. The Register shall also prescribe regulations under which detailed cumulative annual statements of account, certified by a certified public accountant, shall be filed for every compulsory license under this section. The regulations covering both the monthly and the annual statements of account shall prescribe the form, content, and manner of certification with respect to the number of records made and the number of records distributed.

            (6) If the copyright owner does not receive the monthly payment and the monthly and annual statements of account when due, the owner may give written notice to the licensee that, unless the default is remedied within thirty days from the date of the notice, the compulsory license will be automatically terminated. Such termination renders either the making or the distribution, or both, of all phonorecords for which the royalty has not been paid, actionable as acts of infringement under section 501 and fully subject to the remedies provided by sections 502 through 506 and 509.

            (d) Definition. ? As used in this section, the following term has the following meaning: A ?digital phonorecord delivery? is 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, non-interactive 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.
            ? 116. Negotiated licenses for public performances by means of coin-operated phonorecord players52

            (a) Applicability of Section. ? This section applies to any nondramatic musical work embodied in a phonorecord.

            (b) Negotiated Licenses. ?

            (1) Authority for negotiations. ? Any owners of copyright in works to which this section applies and any operators of coin-operated phonorecord players may negotiate and agree upon the terms and rates of royalty payments for the performance of such works and the proportionate division of fees paid among copyright owners, and may designate common agents to negotiate, agree to, pay, or receive such royalty payments.

            (2) Arbitration. ? Parties not subject to such a negotiation, may determine, by arbitration in accordance with the provisions of chapter 8, the terms and rates and the division of fees described in paragraph (1).

            (c) License Agreements Superior to Copyright Arbitration Royalty Panel Determinations. ? License agreements between one or more copyright owners and one or more operators of coin-operated phonorecord players, which are negotiated in accordance with subsection (b), shall be given effect in lieu of any otherwise applicable determination by a copyright arbitration royalty panel.

            (d) Definitions. ? As used in this section, the following terms mean the following:

            (1) A ?coin-operated phonorecord player? is a machine or device that ?

            (A) is employed solely for the performance of nondramatic musical works by means of phonorecords upon being activated by the insertion of coins, currency, tokens, or other monetary units or their equivalent;

            (B) is located in an establishment making no direct or indirect charge for admissio
            Edward Meyers
          • All perfectly legal

            ---And ROMS and FAIR makes the music?!?!?!?!---

            No, as Edward explains above, these are groups created to distribute royalties from licensed music. Sort of like ASCAP here in America.

            ---That's what you call buying off the politicians to get a "license". That's call a license to steal music. There is no way you can say this is anything other than outright theft.---

            No one was bought out. The laws already existed, and these guys took advantage of them. It's clearly not theft because it's clearly legal. Change the laws and make it illegal, then you can call it that.
            tic swayback