You know, I'd go along with that except why then would the number of plays have to be tracked? If you download a DPD one-time to a device in your home, in a closed stream, then that should be considered just the same as buying a physical CD or a CD single. And then how many times you play it after that is nobody's business. That is the model ITUNES is using now.

If the service downloads, one-time, a DPD on a closed stream, and that DPD only plays for a limited time, the length of a subscription let's say, then it's still nobody's business how many times that DPD is played in your home.

Now, if the service involves delivering a DPD several times, let's say your device only holds so many songs, so sometimes the songs have to be retransmitted back to you during the subscription period, then that is an issue that could be held to mean you've created/distributed another copy of the SR, so 8.5 cents (or a lower negotiated rate) is due. That's some of what the Copyright Office is grappling with. Although, I do think ITUNES and the like have some way of allowing you to backup or otherwise get back a lost file, and that would not be considered a new reproduction.

And to me, true streaming on demand means you are creating and distributing a non-permanent digital copy of the SR each time the song is requested. And again, each play *could* be held to be creating/distributing a new copy of the SR, so 8.5 cents (or a lower negotiated rate) is due for the mechanical reproduction of the underlying composition.

A digital purchase can also be a performance, it just depends on whether the stream is open or closed, and it depends on people's interpretation of it. But section 115 makes clear a digital phonorecord delivery can also be a public performance. Just depends....


[This message has been edited by Liszt Laughing (edited 03-14-2004).]

Boo...my name is Doug