Promoting Progress or Rewarding Authors? Copyright Law and Free Speech in Bonneville International Corp. v. Peters

I. INTRODUCTION As a broadcast medium, radio traditionally has been subject to government regulation that would be prohibited by the First Amendment if applied to other speakers.1 Although the factors that justify speech-infringing regulation of radio broadcasters "are not present in cyberspace,"2 delivery of radio content on the Internet was met almost immediately with government regulation that threatened its existence.3 In mid-2001, Judge Berle Schiller of the Eastern District of Pennsylvania ordered Salt Lake City's KSL 1160 AM and other stations around the country to pay millions of dollars in royalties to record companies for the privilege of continuing to make radio broadcasts available over the Internet.4 Bonneville International Corp. v. Peters5 represents the viewpoint of a single federal district court judge, but the decision has been widely noted by scholars as groundbreaking.6 Bonneville is important because it addresses the IMAGE FORMULA3 extent of the right to public digital performance of a sound recording in the area of broadcast radio on the Internet.7 The district court's reasoning in Bonneville suffers two primary flaws that undercut the constitutional purpose of copyright law and raise questions about abridgement of speech. First, the trial court failed to give effect to congressional intent regarding the right to digitally perform sound recordings. Second, the court made an unsupported empirical assumption about potential economic harm of online radio broadcasts. The Bonneville case illustrates the potential for courts blinded by technology and globalization to transform copyright law from a society-based system aiming to promote scientific and artistic progress into an individual-based, moral-rights system aiming to compensate authors. Bonneville also illustrates that courts interpreting copyright law without considering the policies behind the Speech Clause of the First Amendment may unnecessarily restrict speech by limiting public access to information. This Note begins by discussing the purpose of U.S. copyright law and the effects of globalization and technology on the Copyright Act during the twentieth century. Part III describes the factual and procedural aspects of Bonneville as well as the reasoning of the Eastern District of Pennsylvania in that case. Part IV discusses the interplay between copyright and free speech by first evaluating the Bonneville court's interpretation of the Copyright Act and then examining what First Amendment policies add to the adjudication of copyright law questions. Part V offers a brief conclusion. II. BACKGROUND When Congress adopted the first Copyright Act in 1790, the rights of authors clearly gave way to the desire of the Framers to prevent "the evil of state-sanctioned monopoly."8 In the first decade of U.S. copyright law, only five percent of the books published received copyright protection; copyrighted works joined the more numerous uncopyrighted works in the public domain after just IMAGE FORMULA6 fourteen years.9 Today's Copyright Act hardly resembles the 1790 statute: registration is no longer required so virtually every creative work imaginable is automatically copyrighted as long as it meets the low thresholds of originality10 and fixation.11 For works created after January 1, 1978, copyright endures for the life of the author plus seventy years.12 Copyright law encompasses not facts or ideas, but an author's expression in literary, musical, dramatic, filmed, recorded, and other formats.13 Among six exclusive rights14 spelled out in the Copyright Act, this Note discusses the right of public digital performance of a sound recording. Congress created this narrow public performance right in the Digital Performance Right in Sound Recordings Act of 1995 ("DPRA")15 and modified it in the Digital Millennium Copyright Act of 1998 ("DMCA"). …