All-day Bowie and the Copyright Act

|The Volokh Conspiracy |

As Mike Masnick points out over at techdirt, an idea that was floating around the Internet—that a radio station should take a day, or a big chunk of a day, and devote it entirely to the music of David Bowie to honor his recent passing—runs smack up against the complicated webcasting provisions buried deep, deep in the Copyright Act. Another nice idea, he asserts, strangled in its crib by our "messed up" copyright law.

Here's what's going on—it's an interesting little window on what is probably the most complicated provision of the Copyright Act, the webcasting rules in section 114. [Indeed, I'd put section 114 on my own personal short list of the most complicated of all provisions of federal law—close to, if not over, the boundary between things that are comprehensible to the human mind and those that are not.]

Under 114, you are entitled to obtain a statutory license (absolving you of copyright infringement liability) at a statutorily set royalty rate (currently around $0.0017 per transmission) for a "digital audio transmission" over the Internet of a recorded musical performance, but only if you meet certain conditions. One of those conditions is that you must not ("willfully") exceed the so-called "performance complement," which is defined as "the transmission during any 3-hour period" of either "3 different selections" from a single album, or "4 different selections of sound recordings—by the same featured recording artist."

So for "Internet radio" (as opposed to ordinary, over-the-air radio, which is subject to an entirely different set of statutory licenses and royalty obligations), while it's not illegal to have Bowie Day (or even Bowie Hour), you better make sure you've made some separate arrangement with the holder of the copyright in Bowie's recordings, or you're subjecting yourself to potentially crushing liability for copyright infringement.

Your local FM station can do it—but note this one important caveat: If the station is simultaneously transmitting over the Internet (as virtually all stations do these days), the above rules still apply to those "webcast" transmissions. So if it is simply using the same "live" feed for its Web transmissions, the staff is going to have to modify that over-the-air feed to avoid liability on the webcasting side.

So if you've been wondering why your local FM station doesn't seem to play entire albums the way they used to in the good old days, there's your answer.

[And, for extra credit: There must be some special provision for "classical" music that enables webcasters to transmit more than "3 selections" from a single album—the seven movements of the Brahms Requiem, or the 32 movements of the Goldberg Variations—without violating the "performance complement" limits, but damned if I can figure out how that works … ]

And one final, possibly ironic, point. Bowie himself might have been perfectly happy to allow webcasters to waive the performance complement restrictions; he was something of a visionary in terms of his understanding of how the Internet destroys pre-existing music distribution models, and in a New York Times interview in 2002 offered this prediction of the death of copyright law, worth quoting:

"The absolute transformation of everything that we ever thought about music will take place within 10 years, and nothing is going to be able to stop it. I see absolutely no point in pretending that it's not going to happen. I'm fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing."

"Music itself is going to become like running water or electricity," he added. "So it's like, just take advantage of these last few years because none of this is ever going to happen again. You'd better be prepared for doing a lot of touring because that's really the only unique situation that's going to be left. It's terribly exciting. But on the other hand it doesn't matter if you think it's exciting or not; it's what's going to happen."

But one thing is as certain as the sun rising tomorrow in the East: His heirs will not be nearly as permissive on copyright matters, and will try to eke every last penny out of every copyright he ever owned.