On July 16 the Copyright Office released a Notice of Proposed Rulemaking soliciting commentary on various issues concerning the treatment of digital phonorecord deliveries with relation to compulsory copyright licenses. A major piece of the discussion was the characterization of buffer reproductions of digital sound recordings under copyright law, an issue which could have a profound effect on innovation in new media. We have issued our comments to the Copyright Office and have posted them here.
The proposed rulemaking was especially disconcerting because it directly contradicted the recent Cablevision decision from the Second Circuit which we discussed in a previous post. The Second Circuit reversed the district court's previous decision which in part ruled that buffer reproductions of digital information were considered copies, a ruling which would place the transmission of any digital information under copyright regulation. Such a ruling threatened to chill of innovation in digital information technology.
Under the Copyright Act, a reproduction of a work must be embodied or fixed in a tangible medium so that it can be perceived, reproduced, or communicated for more than a transitory duration, or in other words, to come under copyright regulation a reproduction must meet the embodiment and duration requirements.
The embodiment requirement is easily identifiable as it is necessary to buffer digital information in a tangible medium (typically RAM) in order to transmit it. The duration requirement is significantly more difficult to analyze as the durability of reproductions varies dramatically between technologies and as technology changes.
Unfortunately, the durational requirement is more fleeting, which led the district court in the Cablevision case to essentially ignore it, a choice which the Copyright Office blindly followed in their proposed rulemaking. Judge Walker of the Second Circuit explicitly rejected the district court's omission of the duration requirement from their analysis of buffer reproductions for various reasons as discussed in our comments.
Considering the widespread attention received by the Cablevision decision other organizations following this matter will likely echo our concerns. Hopefully they listen.