limitation applies only with respect to "owners" of copies of programs, not licensees, borrowers or mere possessors.

CERTAIN PERFORMANCES AND DISPLAYS

Certain performances and displays are exempt from infringement liability under Section 110 of the Copyright Act, including:

the performance or display of certain works in the course of religious services;"

300

the performance of certain works by governmental or non-profit agricultural or horticultural organizations; 30

the performance of certain musical works in retail outlets for the sole purpose of promoting retail sales;30

the transmission of performances of certain works to disabled persons;303 and

the performance of certain works at non-profit veterans' or fraternal organizations for charitable purposes.

304

The "communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes" is also exempted if there is no direct charge to see or hear the transmission and the

transmission is not further transmitted to the public. This exemption allows proprietors to play radios or televisions (i.e., to perform or display copyrighted works in those radio or television transmissions) in public establishments such as restaurants, beauty shops and bars.30% The applicability of this exemption is extremely fact-specific and what qualifies as a type of receiving apparatus "commonly used in private homes" will certainly change as home equipment merges (into, for example, radio/television/computer units) and becomes more

sophisticated.

EPHEMERAL RECORDINGS

Section 112 provides that it is not an infringement of copyright for a "transmitting organization" that has the right to transmit to the public a performance or display of a work "to make no more than one copy or phonorecord of a particular transmission program embodying the performance or display" under certain conditions. 307

306 See, e.g., the decision in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975), which was essentially codified in Section 110(5) (owner of a small food establishment exempt from infringement liability for the performance of copyrighted works via a radio and four small ceiling speakers). See also Sailor Music v. The Gap Stores, Inc., 516 F. Supp. 923 (S.D.N.Y.), aff'd, 668 F.2d 84 (2d Cir. 1981), cert. denied, 456 U.S. 945 (1982); Rodgers v. Eighty Four Lumber Co., 617 F. Supp. 1021 (W.D. Pa. 1985); Springsteen v. Plaza Roller Dome, Inc., 602 F. Supp. 1113 (M.D.N.C. 1985).

307

See 17 U.S.C. § 112(a) (1988). This limitation of the copyright owner's reproduction right is applicable only if:

(1) the copy or phonorecord is retained and used solely by the
transmitting organization that made it, and no further copies or
phonorecords are reproduced from it; and

(2) the copy or phonorecord is used solely for the transmitting
organization's own transmissions within its local service area, or
for purposes of archival preservation or security; and

(3) unless preserved exclusively for archival purposes, the copy or
phonorecord is destroyed within six months from the date the
transmission program was first transmitted to the public.

COMPULSORY LICENSES

Sections 111 and 119 are compulsory licensing provisions that allow cable systems and satellite operators to retransmit copyrighted programming without infringement liability if they pay a statutory licensing fee (which is then distributed among the copyright owners of the programming retransmitted).30 A compulsory license under Section 111 is only available to a "cable system,' which is defined as "a facility... that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations. . . ." A compulsory license under Section 111 generally would not be available with respect to NII transmissions because case law and regulations make clear that the term "cable system" does not encompass facilities such as those used for computer network transmissions.309 Similarly, the compulsory license under Section 119 would not be available unless the transmitting entity qualified as a "satellite carrier" and met the other statutory criteria.310

Id.

308

See 17 U.S.C. §§ 111, 119 (1988 & Supp. V 1993). These provisions are referred to as "compulsory licenses" because under such provisions, copyright owners are compelled to grant the licenses. No license agreements are signed and the terms of such licenses are set forth in the statute; the copyright owner cannot object to the use of the work and must be satisfied with the license fees collected under the statute, which are distributed among all of the affected copyright owners by arbitrators impaneled by the Librarian of Congress.

309

The Copyright Office issued a regulation in 1992 stating that a cable system is a facility that both receives and transmits signals from within the same state. See 37 C.F.R. § 201.17(k) (1994). This ruling makes clear that Section 111 should not be applicable to any entities other than community-based cable systems. Moreover, in Satellite Broadcast Networks, Inc. v. Oman, 17 F.3d 344 (11th Cir.), cert. denied, 115 S. Ct. 88 (1994), the 11th Circuit upheld the regulation, finding it valid, enforceable and to be used by courts when determining whether a facility qualifies as a cable system. Since facilities used to transmit works through the NII will generally be inherently capable of receiving and transmitting outside any particular state, these facilities will not qualify for the cable compulsory license.

310

A "satellite carrier" is defined as "an entity that uses facilities of a satellite

Compulsory licenses are also available for the public performance of nondramatic musical works by means of jukeboxes,3" for the use of certain works in connection with noncommercial broadcasting,312 and for the reproduction and distribution of nondramatic musical works in the course of making and distributing phonorecords of such works. 313

8. COPYRIGHT INFRINGEMENT

a. GENERAL

Anyone who, without the authorization of the copyright owner, exercises any of the exclusive rights of a copyright owner, as granted and limited by the Copyright Act, is an infringer of copyright.314 Thus, any activity that falls within the scope of the exclusive rights of the copyright owner is an infringement and the infringer is liable, unless it is authorized by the copyright owner or is excused by a defense (such as fair use) or an exemption. For purposes

315

service licensed by the Federal Communications Commission to establish and operate a channel of communications for point-to-multipoint distribution of television station signals...." See 17 U.S.C. § 119(d)(6). Unless the NII transmission occurs through a satellite service licensed by the FCC for the statutorily prescribed purposes, the compulsory license provisions would not be applicable.

311

See 17 U.S.C. § 116 (Supp. V 1993). This compulsory license may only be invoked if private negotiations fail to produce a consensual license.

314

See 17 U.S.C. § 115 (1988).

See 17 U.S.C. § 501(a) (Supp. V 1993). Anyone who "trespasses into [the copyright owner's] exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute" is an infringer of the copyright. Sony, supra note 22, at 433.

315 See discussion of the scope of the exclusive rights supra at pp. 63-72. For instance, activities such as loading a work into a computer, scanning a printed work into a digital file, uploading or downloading a work between a user's computer and a BBS or other server, and transmitting a work from one computer to another may be infringements (in those cases, of the reproduction right). See, e.g., MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) (the turning on of the computer, thereby causing the operating system to

of this discussion of infringement, the lack of such authorization, defense or exemption is generally presumed.

Copyright infringement is determined without regard to the intent or the state of mind of the infringer; "innocent" infringement is infringement nonetheless.316 Moreover, although the exclusive rights refer to such rights with respect to "copies" (plural) of the work,317 there is no question that under the Act the making of even a single unauthorized copy may constitute an infringement.318

Courts generally use the term "copying" as shorthand for a violation of any of the exclusive rights of the copyright owner (not just the reproduction right). Courts usually require a copyright owner to prove ownership of the copyrighted work and "copying" by the defendant to prevail in an infringement action.

Since there is seldom direct evidence of copying (witnesses who actually saw the defendant copy the work, for instance), a copyright owner may prove copying through

be copied into RAM, constituted an infringing reproduction of the copyrighted software); Advanced Computer Services v. MAI Systems Corp., 845 F. Supp. 356 (E.D. Va. 1994) (loading software into computer's random access memory constituted infringing reproduction); see also 2 NIMMER ON COPYRIGHT § 8.08 at 8-103 (1993) ("input of a work into a computer results in the making of a copy, and hence... such unauthorized input infringes the copyright owner's reproduction right").

316 The innocence or willfulness of the infringing activity may be relevant with regard to the award of statutory damages. See 17 U.S.C. § 504(c) (1988); see also discussion of remedies infra pp. 130-33.

317

318

See 17 U.S.C. § 106 (1988 & Supp. V 1993).

See HOUSE REPORT at 61, reprinted in 1976 U.S.C.C.A.N. 5674 ("references to 'copies or phonorecords' are intended [in Section 106(1)-(3)] and throughout the bill to include the singular"; "the right 'to reproduce the copyright work in copies or phonorecords' means the right to produce a material object in which the work is duplicated, transcribed, imitated, or simulated..."). Further evidence of the intent of Congress to make even a single act of unauthorized reproduction an infringement is found in specific exemptions created for certain single-copy uses. See, e.g., 17 U.S.C. §§ 108(a), 108(f)(2), 112(a) (1988); see also Texaco, supra note 251, at 17.