Before the APR 17 291 UNITED STATES COPYRIGHT OFFICE LIBRARY OF CONGRESS GENERAL coun SE ‘Washington, D.C. OF COPYRIGHT InRe: Docket No. MA Iors.-'4 Section 114 Definition of Interactive Service PETITION FOR Ri PRELIMINARY STATEMENT AND NEED FOR RULEMAKING. Pursuant to 17 U.S.C. § 702, the Digital Media Association (“DiMA”) Tespectfillly requests that the Copyright Office commence a rulemaking to address the Proper scope of the definition of a “service” in 37 C.F.R. § 201.35(b)(2), as distinct from an “interactive service” under Section 114(j)(7) of the Copyright Act. Specifically, DiMA urges the Copyright Office to adopt a rule clarifying that services engaged in the streaming of music programming over the Internet, or “webcasting,” are not “interactive services" under Section 114 (j)(7) of the Copyright Act merely by virtue of offering the consumer some degree of influence over the streamed programming. As set forth below, such a rulemaking is necessary to clarify that a service making transmissions that otherwise meet the requirements for the statutory license under Section 1 14(f of the Copyright Act is not rendered “interactive,” and thus ineligible for the statutory licenses, simply because the consumer may have some input into a service's music programming, DiMA further requests that the rule clarify that such a webcasting service is not an “interactive service” under § 114())(7) of the Copyright Act, and therefore Cimmmowsmeesvt@asDocqualifies for the aforecited Digital Millennium Copyright Act ("DMCA") statutory licenses, as long as: (j) its transmissions are made available to the public generally; (i) the features offered by the service do not enable the consumer to determine or learn in advance what sound recordings will be transmitted over the service at any particular time; and (ii) its transmissions do not substantially consist of sound recordings performed within one hour of a request or at atime designated by the transmitting entity or the individual making the request. Attachment A hereto contains the text of the rule (the "Proposed Rule”) that DiMA requests the Copyright Office to adopt. As explained below, this Rulemaking petition has been necessitated because the Recording Industry Association of America (“RIAA”) has taken the position that consumer-influenced webcasting of any nature is not eligible for the DMCA. Statutory licenses — and, instead, constitutes inftingement of the copyright rights of RIAA‘s members. DiMA‘s members disagree and believe that the consumer-influenced transmissions described herein are ible for DMCA statutory licensing. A Rulemaking is necessary to resolve this issue in advance of the convening of the Copyright Arbitration Royalty Panel (“CARP”) which will determine the statutory rates for sound recording performances (and certain reproductions) associated with webcasting, The relief sought by this Petition is necessary in order to define the appropriate bounds of the statutory license proceedings -- which will be before this CARP. ‘cawmspows:TExensvTg0s Doc 2BACKGROUND DiMA is a trade association whose membership is comprised of approximately 40 companies engaged in various forms of Internet multimedia activities.” Many DiMA members have implemented or are in the process of implementing, among, their website offerings, “webcasting” technologies which provide the public with the opportunity to receive literally hundreds of Internet “radio stations." Several DIMA members, employing the latest in webcasting technologies, have developed Internet radio offerings that permit consumers to influence the “stream” of content made available to the public. With the enactment of the DMCA in October 1998, sound recording performances via certain Internet webcasting transmissions became subject to copyright licensing for the first time. To facilitate and promote the public’s access to these new technologies and to ensure that webcasting offerings would not be unduly constrained by sound recording copyright owners, however, Congress made a statutory license available to webcasters that comply with certain eligibility requirements set forth in the DMCA. These eligibility requirements, as discussed in more detail below, were designed generally to protect RIAA members from the alleged risk that consumers would be able ‘ DiMA's current members are: Adaptec; America Online; AudioBase; ab Music; Audiosoft; bamesandnoble.com; Bestblues.com; CDNow; CMGI; DiscoverMusic.com; iscjockey.com; Earjam; Eclectic Radio Company; Emusic.com; Everstream; Gigabeat, Global Music One; iGroove.com; Intel; Kataweb SPA; Kataweb US; Knit Media; LAUNCH Media; LicenseMusic.com; Linxonic Corporation; Liquid Audio; Listen.com; ListenSmart.com; ; Live365.com; Loudeye Technologies; MTVi, Muzak; MyPlay.com, ‘NetRadio Networks; RadioActive Media Partners; RadioWave.com, RealNetworks, Riffage.com; Rioport.com; SOUNDSBIG. com; Spinner.com; Sputnick7; The Dial; Tower Records, Tunes.com; TuneTo.com; WestwindMedia.com; and Wired Planet. CeummOWSTEMSVTGNS DOC 3