Finished reading the opinion, Bonneville Industries et al v. MaryBeth Peters. It’s a pretty instructive look at the kind of thing that Jessica Litman discusses in Digital Copyright — the way that the negotiation over rights in copyright becomes central to understanding what is, and is not, covered in each incarnation of the law of copyright.
I also found it instructive from the perspective of administrative procedure, the part of the law that I spent most of my time on when I was a student. There’s a whole subtext in the opinion about whether to apply a more stringent level of scrutiny to certain action of the Copyright Office during formal notice and comment rulemaking, whose relevance is rejected because the Copyright Office’s actions a appropriate under either criterion (in the view of the court) so the court does not need to distrnguish between the two.
Essentially, the case centers on parsing the meaning of "nonsubscription broadcast transmission" (something exempted from licensing fees to recording companies in digital transmissions of sound recordings) and whether an AM/FM station’s simultaneous webcasting of their over-the-air broadcasts are such a transmission. While the issue of nonsubscription is easy to satisfy, the definition of a "broadcast transmission" takes the court to the Federal Communications Act, which says a "’broadcast transmission’ is a transmission made by a terrestrial broadcast station licensed as such by the Federal Communications Commission."
Here’s where the plaintiff’s argument founders on the rocky shoals of the court’s analysis. The plaintiffs argue that licensees must be firms, rather than physical plant, and therefore any firm that operates an FCC licensed broadcast station is exempt. The Court determines that such an interpretation makes the exemption far broader than Congress intended, and that therefore broadcasts are the product of physical facilities, rather than the product of a firm.
Frankly, by the time you get through all this, the case seems pretty mundane, but then the court (whose footnotes are indicative of the fact that this judge has been paying pretty close attention to the copyright issues in music — see below) slips in this stunning bit of insight:
Appellants argue that this narrow reading of broadcast transmission makes the word “nonsubscription” in the phrase “nonsubscription broadcast transmission” surplusage, since all over-the-air broadcasts are currently nonsubscription broadcasts. See Bailey v. United States, 516 U.S. 137, 146 (1995) (holding that each term in a statute should have a “particular, nonsuperfluous meaning”). We disagree. All over-the-air broadcasts are currently nonsubscription because they are analog. It is our understanding that analog radio technology is not capable of providing a subscription broadcast transmission. In comparison, §§ 106 and 114 are concerned with digital transmissions. With digital over-the-air transmission technology it is possible for transmitters to provide their transmission services on a subscription basis. Inasmuch as the legislative history indicates that Congress was anticipating the technology of digital radio when it formulated § 114(d)(1)(A), 1995 Senate Report, at 19 (App. at A718) (”[T]he Committee intends that [over-the-air] transmissions be exempt regardless of whether they are in a digital or nondigital format, in whole or in part.”), we find it perfectly reasonable to conclude that Congress was also anticipating that digital radio potentially could give rise to subscription radio services and chose expressly to distinguish such services from nonsubscription digital overthe-air radio services. [emphasis added]
Aside from the miracle of the word "surplusage," (!!) we see here an explicit judicial appreciation that access to a digital broadcast transmission can be limited — via digital rights management, of course — and thus is inherently different from analog transmission, whose access cannot be so controlled. Unarticulated, of course, is the fact that this control is only sustainable when coupled with the DMCA’s anticircumvention provisions.
(Here’s the first footnote from the earlier cite here at FurdLog, on the subject of Happy Birthday - shades of Eldred!)
Happy Birthday, originally penned by two Kentucky kindergarten teachers in the late 19th century, remains a protected and highly profitable copyright in the intellectual property portfolio of AOL/TimeWarner. Purchased by the company in 1988 for an estimated $25 million, it produces revenues estimated at $2 million per year. Under the Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827, for better or for worse, the song will not enter the public domain until at least the year 2030.