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Abstract

On February 4, 2009, Senator Patrick Leahy introduced the Performance Rights Act ("PRA") to the Senate, joined by Representative John Conyers in the House of Representatives. Thirty-eight years after sound recordings were first granted federal copyright protection against unauthorized reproduction and distribution--and more than ten years after gaining a limited digital performance right--legislation is pending that would once again expand the scope of sound recording copyright to encompass terrestrial radio broadcasts. Historically, such broadcasts have been exempt from sound recording performance royalties.[...] Instead of (or in addition to) seeking remuneration from terrestrial radio stations, this Note suggests that sound recording copyright holders should seek to further expand their digital performance right to permit collection of royalties from websites which regularly perform user-generated audiovisual works. While such royalties would not be as lucrative as those collected from terrestrial stations in the short term, such a strategy would secure a right that will become increasingly valuable as music distribution continues to evolve into an online, performance-based platform. In consideration for an annual blanket fee, performance-based sites would not be subject to costly Digital Millennium Copyright Act notice-and-takedown proceedings or copyright infringement actions by participating sound recording copyright owners. Such a compromise would allow sound recording copyright holders and artists to receive just compensation when their works are performed online, save sites like YouTube millions in administrative and legal fees, and permit Internet users to freely and fairly post audiovisual clips online. This Note will attempt to reconcile the history of the sound recording performance right with the recently introduced PRA, and propose an alternative (or supplemental) strategy for further expanding the right online. Part I summarizes in detail the background for the rights involved with this topic. Part II provides a primer on the music licensing process in the United States, placing particular emphasis on the tumultuous brawl between sound recording copyright owners and webcasters. Parts III and IV focus on the substance of and the political motivations underlying the PRA. Finally, Part V describes the alternative proposal for licensing performances of sound recordings online as introduced above, suggesting a sustainable alternative to the PRA that would benefit consumers and industry alike.

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