[Federal Register: March 9, 2001 (Volume 66, Number 47)]

[Proposed Rules]               

[Page 14099-14103]



Copyright Office

37 CFR Part 255

[Docket No. RM 2000-7]


Mechanical and Digital Phonorecord Delivery Compulsory License

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of inquiry.


SUMMARY: The Copyright Office of the Library of Congress requests 

public comment on the interpretation and application of the mechanical 

and digital phonorecord compulsory license, 17 U.S.C. 115, to certain 

digital music services.

DATES: Comments are due no later than April 23, 2001. Reply comments 

are due May 23, 2001.

ADDRESSES: If sent by mail, and original and ten copies of comments and 

reply comments should be addressed to: Office of the Copyright General 

Counsel, PO Box 70977, Southwest Station, Washington, DC 20024. If hand 

delivered, an original and ten copies should be brought to: Office of 

the Copyright General Counsel, James Madison Memorial Building, Room 

LM-403, First and Independence Avenue, SE, Washington, DC 20559-6000.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 

William J. Roberts, Jr., Senior Attorney for Compulsory Licenses, 

Copyright Arbitration Royalty Panel, PO Box 70977, Southwest Station, 

Washington, DC 20024 Telephone: (202) 707-8380. Telefax: (202) 252-




    The copyright laws of the United States grant certain rights to 

copyright owners for the protection of their works of authorship. Among 

these rights is the right to make, and to authorize others to make, a 

reproduction of the copyrighted work, and the right to distribute, and 

to authorize others to distribute, the copyrighted work. Both the 

reproduction right and the distribution right granted to a copyright 

owner inhere in all works of authorship and are, for the most part, 

exclusive rights. However, for copyright holders of nondramatic musical 

works, the exclusivity of the reproduction right and distribution right 

are limited by the compulsory license of section 115 of the Copyright 

Act. Often referred to as the ``mechanical license,'' section 115 

grants third parties a nonexclusive license to make and distribute 

phonorecords of nondramatic musical works.

    The license can be invoked once a nondramatic musical work embodied 

in a phonorecord is distributed ``to the public in the United States 

under the authority of the copyright owner.'' 17 U.S.C. 115(a)(1). 

Unless and until such an act occurs, the copyright owner's rights in 

the musical work remain exclusive, and the compulsory license does not 

apply. Once it does occur, the license permits anyone to make and 

distribute phonorecords of the musical work provided, of course, that 

they comply with all of the royalty and accounting requirements of 

section 115. It is important to note that the mechanical license only 

permits the making and distribution of phonorecords of a musical work, 

and does not permit the use of a sound recording created by someone 

else. The compulsory licensee must either assemble his own musicians, 

singers, recording engineers and equipment, or obtain permission from 

the copyright owner to use a preexisting sound recording. One who 

obtains permission to use another's sound recording is eligible to use 

the compulsory license for the musical composition that is performed on 

the sound recording.

    The mechanical license was the first compulsory license in U.S. 

copyright law, having its origin in the 1909 Copyright Act. It operated 

successfully for many years, and it continued under the 1976 Copyright 

Act with only some technical modifications. However, in 1995, Congress 

passed the Digital Performance Right in Sound Recordings Act (``Digital 

Performance Act''), Public Law 104-39, 109 Stat. 336, which amended 

sections 114 and 115 of the Copyright Act to take account of 

technological changes which were beginning to enable digital 

transmission of sound recordings. With respect to section 115, the Act 

expanded the scope of the mechanical license to include the right to 

distribute, or authorize the distribution of, a phonorecord by means of 

a digital transmission which constitutes a ``digital phonorecord 

delivery.'' 17 U.S.C. 115(c)(3)(A). A ``digital phonorecord delivery'' 

is defined as ``each individual delivery of a phonorecord by digital 

transmission of a sound recording which results in a specifically 

identifiable reproduction by or for any transmission recipient of a 

phonorecord of that sound recording * * *.'' 17 U.S.C. 115(d).

    As a result of the Digital Performance Act, the mechanical license 

applies to two kinds of disseminations of nondramatic musical works: 

(1) The traditional making and distribution of physical, hard copy 

phonorecords; and (2) digital phonorecord deliveries, commonly referred 

to as DPDs. However, in including DPDs within section 115, Congress 

added a wrinkle by creating a subset of DPDs, commonly referred to as 

``incidental DPDs.'' It did this by requiring that royalty fees 

established under the compulsory license rate adjustment process of 

chapter 8 of the Copyright Act distinguish between ``(i) digital 

phonorecord deliveries where the reproduction or distribution of a 

phonorecord is incidental to the transmission which constitutes the 

digital phonorecord delivery, and (ii) digital phonorecord deliveries 

in general.'' 17 U.S.C. 115(c)(3)(D). However, Congress did not define 

what constitutes an incidental DPD, and that omission is the source of 

today's Notice of Inquiry.

    As required by the Digital Performance Act, in 1996 the Library of 

Congress initiated a Copyright Arbitration Royalty Panel (``CARP'') 

proceeding to adjust the royalty rates for

[[Page 14100]]

DPDs and incidental DPDs. 61 FR 37213 (July 17, 1996). The parties to 

the proceeding avoided arbitration by reaching a settlement as to new 

rates for DPDs and the time periods for conducting future rate 

adjustment proceedings for DPDs. The parties could not reach agreement, 

however, on new rates for incidental DPDs because the representatives 

of both copyright owners and users of the section 115 license could not 

agree as to what was, and what was not, an incidental DPD. The 

resolution of this impasse was to defer establishing rates for 

incidental DPDs until the next scheduled rate adjustment proceeding.

    The Librarian of Congress accepted the settlement agreement of the 

parties and adopted new regulations governing section 115 royalties for 

DPDs. 64 FR 6221 (February 9, 1999). Section 255.5 of 37 CFR 

establishes royalty rates for DPDs ``in general,'' while Sec. 255.6 of 

the rules expressly defers consideration of incidental DPDs. And 

Sec. 255.7 sets the time table for rate adjustment proceedings for 

general DPDs and incidental DPDs, providing for proceedings at two-year 

intervals upon the filing of a petition by an interested party. The 

year 2000 was a window year for the filing of such petitions.

Petition for Rulemaking

1. RIAA Petition

    On November 22, 2000, the Copyright Office received a pleading from 

the Recording Industry Association of America (``RIAA'') styled as a 

``Petition for Rulemaking and to Convene a Copyright Arbitration 

Royalty Panel If Necessary.'' The RIAA petition requests that the 

Office resolve, through a rulemaking proceeding, the issue of what 

types of digital transmissions of prerecorded music are general DPDs, 

and what types are incidental DPDs. In addition, RIAA petitions the 

Library of Congress to conduct a CARP proceeding to set rates for 

incidental DPDs. MP3.com, Inc. (``MP3.com''), Napster, Inc. 

(``Napster''), and the Digital Media Association (``DiMA'') responded 

to the RIAA petition. The Office also received a petition to convene a 

CARP to set rates for general DPDs and incidental DPDs from the 

National Music Publishers Association, Inc. and the Songwriters Guild 

of America (collectively, ``NMPA/SGA'').

    The RIAA petition focuses on two types of digital music deliveries: 

``On-Demand Streams'' and ``Limited Downloads.'' RIAA defines an ``On-

Demand Stream'' as an ``on-demand, real-time transmission using 

streaming technology such as Real Audio, which permits users to listen 

to the music they want when they want and as it is transmitted to 

them.'' RIAA Petition at 1. A ``Limited Download'' is defined as an 

``on-demand transmission of a time-limited or other use-limited (i.e. 

non-permanent) download to a local storage device (e.g. the hard drive 

of the user's computer), using technology that causes the downloaded 

file to be available for listening only either during a limited time 

(e.g. a time certain or a time tied to ongoing subscription payments) 

or for a limited number of times.'' Id. RIAA asserts that a rulemaking 

is necessary to determine the status of On-Demand Streams and Limited 

Downloads (i.e. whether they are general DPDs or incidental DPDs) 

because record companies and music publishers cannot reach agreement as 

to their treatment under section 115.

    According to RIAA, music publishers take the position that both On-

Demand Streams and Limited Downloads implicate their mechanical rights. 

In RIAA's view, On-Demand Streams may be incidental DPDs, for which 

there are currently no established royalty rates. RIAA therefore 

requests that the Office determine whether On-Demand Streams are 

incidental DPDs and, if they are, to convene a CARP to set rates for 

these incidental DPDs.

    RIAA also submits that for services offering On-Demand Streams and 

Limited Downloads to work, it is necessary that the section 115 license 

be interpreted in such a way as to cover all the copies necessary to 

operate such services.\1\ In general, the operator of a service must 

make multiple phonorecords of musical works on its servers, and those 

works may be further reproduced, at least in part and for short periods 

of time, as part of the transmission process. While some of these 

reproductions may be exempt from copyright liability under 17 U.S.C. 

112(a), RIAA asserts that it is likely that certain reproductions 

necessary for the operation of the services are not exempt and that 

they should be covered by the section 115 license.


    \1\ It would probably be more precise to characterize such 

``copies'' as ``phonorecords,'' since presumably they include the 

fixation of sounds. Compare the definitions of ``copies'' and 

``phonorecords'' set forth in 17 U.S.C. 101. However, because 

discussions of this issue usually refer more colloquially to 

``copies,'' we will frequently use that term in this notice.


    With respect to Limited Downloads, RIAA suggests that they may be 

either (1) incidental DPDs or (2) more in the nature of record rentals, 

leases or lendings. The section 115 license authorizes the maker of a 

phonorecord to rent, lease or lend it, provided that a royalty fee is 

paid. The statute states:

    A compulsory license under this section includes the right of 

the maker of a phonorecord of a nondramatic musical work * * * to 

distribute or authorize distribution of such phonorecord by rental, 

lease, or lending (or by acts or practices in the nature of rental, 

lease, or lending). In addition to any royalty payable under clause 

(2) and chapter 8 of this title, a royalty shall be payable by the 

compulsory licensee for every act of distribution of a phonorecord 

by or in the nature of rental, lease, or lending, by or under the 

authority of the compulsory licensee. With respect to each 

nondramatic musical work embodied in the phonorecord, the royalty 

shall be a proportion of the revenue received by the compulsory 

licensee from every such act of distribution of the phonorecord 

under this clause equal to the proportion of the revenue received by 

the compulsory licensee from distribution of the phonorecord under 

clause (2) that is payable by a compulsory licensee under that 

clause and under chapter 8. The Register of Copyrights shall issue 

regulations to carry out the purpose of this clause.

17 U.S.C. 115(c)(4). RIAA notes that the Copyright Office has yet to 

adopt such regulations.

    This provision was added to section 115 in the Record Rental 

Amendment of 1984, Pub. L. 98-450, which also amended the first sale 

doctrine codified in section 109 to restrict the owner of a phonorecord 

from disposing of the phonorecord for direct or indirect commercial 

advantage by rental, lease or lending without authorization of the 

sound recording copyright owner. The legislative history of the 

amendment to section 115 states that the amendment was made to 

emphasize ``that the right of authorization accorded to copyright 

owners of recorded musical works under revised section 109(a) is 

subject to compulsory licensing under revised section 115'' and that it 

gives the copyright owner of a nondramatic musical work recorded under 

a compulsory license the right to a share of the royalties for rental 

received by a compulsory licensee (a record company) in proportion 

equal to that received for distribution under section 115(c)(2). H.R. 

Rep. 98-987, at 5 (1984).

    The Office was to issue appropriate regulations relating to the 

royalty for rental, lease or lending ``as and when necessary to carry 

out the purposes'' of section 115(c)(4). S.Rep. No. 98-162, at 9 

(1983). Thus far, there has been no need to issue such regulations 

because the Office has been unaware of any activity by sound recording 

copyright owners engaging in or authorizing the rental, lease or 

lending of phonorecords.

    In sum, RIAA asserts that it is unclear whether the section 115 

license permits

[[Page 14101]]

all of the activities necessary to make On-Demand Streams or Limited 

Downloads, and if so, at what royalty rates. Consequently, RIAA 

petitions the Office to determine (1) whether On-Demand Streams are 

incidental DPDs covered by the license; (2) whether the license 

includes the right to make server copies or other copies necessary to 

transmit On-Demand Streams and Limited Downloads; and (3) the royalty 

rate applicable to On-Demand Streams (if they are covered by the 

license) and Limited Downloads.

    Napster opposes RIAA's petition and urges the Copyright Office to 

defer to Congress, which Napster contends is the appropriate forum for 

resolving the issues raised by the petition. MP3.com submits that the 

Office should conduct a rulemaking proceeding to determine whether 

copies made in the course of On-Demand Streams are incidental DPDs, and 

whether the copies made that are necessary to stream musical works are 

covered by the section 115 license.\2\ If they are, MP3.com also 

petitions the Library to convene a CARP to ``determine the appropriate 

rate or rates (if any)'' for incidental DPDs.


    \2\ MP3.com does not take a position as to whether there should 

be a rulemaking for Limited Downloads as well, since this is not 

part of its business.


    MP3.com also asks the Copyright Office to consider additional 

matters in a rulemaking proceeding. First, MP3.com questions whether 

distinctions can and should be drawn among streaming audio services. 

MP3.com's service streams music to recipients who select the streams 

from a ``locker'' containing the recipients'' personally purchased 

music collections. MP3.com requests that the Office consider whether 

this type of service--where the copyright owner has received 

compensation from the recipient who has already purchased the music--

should be distinguished from a service that indiscriminately transmits 

streams of music to the public at large.

    Second, MP3.com requests that the Office consider the effect of the 

decision to defer adoption of a royalty rate for incidental DPDs to a 

later date, and what effect that has on services that are currently 

streaming music. Finally, MP3.com requests that the Office reconsider 

its current procedural regulations for invoking and complying with the 

section 115 license with respect to incidental DPDs.

    Like RIAA and MP3.com, DiMA is especially concerned with the status 

of copies of musical works made in the course of streaming. In 

particular, DiMA notes that the status of temporary RAM buffer copies 

created in a user's personal computer during audio streaming was raised 

at the November 29, 2000, Copyright Office/National Telecommunications 

and Information Administration hearing on the section 104 study 

mandated by the Digital Millennium Copyright Act of 1998 (``DMCA'') and 

urges that consideration of the same issue in a rulemaking proceeding 

be done in such a way as not to prejudice the outcome of that study. 

Thus, DiMA submits that either this should be resolved in the section 

104 study, or the Office should conduct a separate rulemaking 

proceeding devoted solely to the issue. DiMA suggests, however, that 

the complexity of the issue counsels for legislative action rather than 

agency interpretation of the existing statute.

    The NMPA/SGA petition does not request any rulemaking from the 

Copyright Office and simply requests that the Library convene a CARP to 

set rates for both general DPDs and incidental DPDs. As discussed 

above, the year 2000 was a window year for filing such petitions with 

the Library.

Notice of Inquiry

    The foregoing discussion of the petitions and filings with the 

Copyright Office reveals that there is considerable uncertainty as to 

interpretation and application of the copyright laws to certain kinds 

of digital transmissions of prerecorded musical works. It is also 

apparent that the impasse presented by these legal questions may impede 

the ability of copyright owners and users to agree upon royalty rates 

under section 115 for both general DPDs and incidental DPDs. Therefore, 

the Copyright Office deems it appropriate to seek public comment on the 

advisability of conducting a rulemaking proceeding and on the issues 

that would be addressed in such a proceeding.

1. Agency Action

    Before addressing the matters raised in the parties' petitions and 

comments, a threshold matter must first be resolved. It appears that 

when Congress passed the Digital Performance Act in 1995 and amended 

the section 115 mechanical license, current delivery mechanisms for 

digital transmission of musical works were unknown. Consequently, On-

Demand Streaming and Limited Downloads, as described in the RIAA 

petition, and the applicability of the section 115 license to these 

services do not appear to have been anticipated. DiMA and Napster 

assert that to fully address the copyright implications of all aspects 

of these services, the law needs to be reconsidered and amended. While 

amendment of the law is a time-consuming proposition, Congress does 

have the power, unlike the Copyright Office, to balance the specific 

concerns of the interested parties and enact a legal regime that 

addresses those concerns. Must or should the Copyright Office defer to 

congressional action on some or all of the issues raised by the RIAA 

and MP3.com petitions? In other words, are there matters raised by 

these petitions that the Office lacks statutory authority to resolve? 

If the Office does have authority to interpret the meaning of section 

115 as applied to these new services, is agency rulemaking the best 

forum for addressing such matters, or is congressional (or judicial) 

action more appropriate? We seek public comment on the extent of our 

authority to act, as well as the advisability of exercising any such 


2. Issues Presented

    Assuming that the Copyright Office does have the authority to act, 

and assuming that a rulemaking proceeding is the best forum, the RIAA 

and MP3.com petitions raise a number of questions. Central to RIAA's 

petition is a determination of the meaning of an incidental DPD under 

section 115. Is it possible to define ``incidental DPD'' through a 

rulemaking proceeding? How should it be defined? Could such a 

definition be one of general application, or can incidental DPDs be 

defined only in a manner that is specific to the service offered (such 

as On-Demand Streams)? If the latter, how can this be accomplished?

    As discussed above, there is considerable interest in the streaming 

of recorded music. Streaming necessarily involves a making of a number 

of copies of the musical work--or portions of the work--along the 

transmission path to accomplish the delivery of the work. RIAA and 

MP3.com relate that copies are made by the computer servers that 

deliver the musical work (variously referred to as ``server,'' 

``root,'' ``encoded,'' or ``cache'' copies), and additional copies are 

made by the receiving computer to better facilitate the actual 

performance of the work (often referred to as ``buffer'' copies). Some 

of these copies are temporary; some may not necessarily be so. Are some 

or all the copies of a musical work made that are necessary to stream 

that work incidental DPDs? If temporary copies can be categorized as 

incidental DPDs, what is the definition of ``temporary''? Some 

``temporary'' copies may exist for a very short period of time; others 

may exist for weeks. Is the concept of a ``transient'' copy more

[[Page 14102]]

relevant than the concept of a ``temporary'' copy? If fragmented copies 

of a musical work are made, can each fragment, or the aggregation of 

the fragments of a single work, be considered an incidental DPD? If a 

fragmented copy can be an incidental DPD, does it make a difference in 

the analysis whether the copy is temporary or is permanent? Aren't 

incidental DPDs subject to section 115's definition of digital 

phonorecord deliveries? If so, does the requirement that a DPD result 

in a ``specifically identifiable reproduction'' by or for a 

transmission recipient rule out some of the copies discussed above from 

consideration as incidental or general DPDs?

    DiMA argues that all temporary copies of a musical work that are 

made to stream that work can be deemed to be covered by the fair use 

doctrine of section 107 of the Copyright Act. This would mean, of 

course, that these copies would not be subject to any royalty fee 

because there is no copyright liability. What is the statutory support 

for this argument? Should the Copyright Office, in a rulemaking 

proceeding, declare whether any particular use of a copyrighted work 

constitutes a fair use, or should it leave that determination to a 

court of competent jurisdiction?

    It is apparent from the filings received by the Copyright Office 

that currently there are different types or services for the streaming 

of music. RIAA refers to On-Demand Streams, whereby subscribers can 

receive real-time transmissions, using technology such as Real Audio, 

of the musical works that they request. MP3.com transmits streamed 

performances of musical works to subscribers who select the works from 

a ``locker'' containing recorded music that the subscriber has already 

purchased. MP3.com suggests that a distinction should be drawn between 

its service and those that indiscriminately transmit streamed music to 

the public because users of MP3.com have already compensated copyright 

holders of the music they stream for the reproduction and distribution 

of the phonorecord. Can and should such distinctions be made between 

these two streaming services and, if so, what should they be? Are there 

difficulties in determining whether the subscriber actually has 

purchased a phonorecord containing the music that is being streamed, 

and if there are, what impact should that have on how the Office 

addresses the issue? Are there additional types of streaming services 

that should be addressed?

    MP3.com also calls into question the status of the current royalty 

structure for incidental DPDs. As discussed above, the rate adjustment 

proceeding for DPDs in 1998 resulted in a settlement as to the royalty 

rates for general DPDs, and an agreement to a royalty determination for 

incidental DPDs. See 64 FR 6221 (February 9, 1999) (adopting 37 CFR 

255.6, which provides that royalty rates for incidental DPDs are 

``deferred until the next digital phonorecord delivery rate adjustment 

proceeding pursuant to the schedule set forth in Sec. 255.7''). If it 

is determined in a rulemaking proceeding that streaming does result in 

the creation of incidental DPDs, is there liability for parties that 

have been engaging in such streaming activities? In other words, when a 

CARP is ultimately convened to establish royalty rates for incidental 

DPDs, can the CARP set rates for the 1998-2000 period, in addition to 

the current period? What is the meaning of a ``deferral'' of royalty 

rates, and is such action statutorily permissible? If the CARP did set 

rates for incidental DPDs for 1998-2000, would such action constitute 

impermissible retroactive rulemaking if the Librarian adopted those 

rates? How would a service account for such incidental DPDs that have 

already occurred?

    In addition to streaming, RIAA seeks clarification of the status of 

Limited Downloads. It defines a Limited Download as an on-demand 

transmission of a time-limited or other use-limited download to a 

storage device (such as a computer's hard drive), using technology that 

causes the downloaded file to be available for listening only either 

during a limited time or for a certain number of times. Are the copies 

made of musical works for Limited Downloads incidental DPDs? Do the 

time period or the number of times the music is available have any 

bearing on this determination?

    RIAA suggests that if Limited Downloads are not incidental DPDs, 

then they may be record rentals, leases or lendings under section 

115(c)(4). Are Limited Downloads phonorecords distributed by rentals, 

leases or lendings, and what is the statutory support for such a 

determination? If Limited Downloads are record rentals, leases or 

lendings, RIAA requests that the Copyright Office adopt regulations 

under section 115(c)(4) for assessing the royalty fee for such uses. 

What should those regulations include? Should they be adopted as part 

of this rulemaking proceeding, or a separate proceeding? How should the 

statutory requirement to set a royalty rate at a ``proportion of the 

revenue received by the compulsory licensee'' be interpreted? \3\


    \3\ If a Limited Download is an activity in the nature of 

rental, lease or lending, it may be that nonprofit libraries and 

educational institutions that engage in Limited Downloads for 

nonprofit purposes may do so without liability. See 17 U.S.C. 

109(b)(1)(A). Persons submitting comments on whether Limited 

Downloads are in the nature of rentals, leases or lending pursuant 

to section 115(c)(4) are invited to address the implications of that 

issue with respect to libraries and educational institutions.


3. Petitions for Ratemaking

    In addition to the RIAA's petition for rulemaking, the Copyright 

Office has before it several requests to convene a CARP to set rates 

either for general DPDs or incidental DPDs, or both. As noted above, 

the year 2000 was a window year for petitioning for an adjustment of 

the royalty rates for DPDs. There is a difference of opinion, however, 

as to how and when a CARP should be convened.

    The NMPA/SGA petition requests the Librarian to convene a general 

rate adjustment proceeding for DPDs, asking that the CARP establish 

rates for both general DPDs and incidental DPDs. NMPA/SGA's request is 

not conditioned upon the conduct or outcome of a rulemaking proceeding 

regarding incidental DPDs.

    RIAA requests the Library to convene a CARP if and only if the 

Copyright Office makes a determination that copies of musical works 

made in the course of On-Demand Streams and/or Limited Downloads are 

incidental DPDs. RIAA does not seek adjustment of the rates for general 

DPDs. MP3.com makes a similar request.

    DiMA does not petition the Library to convene a CARP, but does 

suggest a course of action. First, DiMA recommends that the Copyright 

Office consider the status of temporary copies of musical works made in 

the course of streaming those works in the context of the study it is 

conducting under section 104 of the DMCA. If that study concludes that 

such copies are not fair use, then DiMA recommends that the Office 

conduct a rulemaking proceeding to determine if the copies are 

incidental DPDs. If the Office determines that they are not incidental 

DPDs, then DiMA supports the NMPA/SGA petition to conduct a rate 

adjustment for DPDs and for Limited Downloads. DiMA submits that the 

Library should not convene a CARP for incidental DPDs ``unless the 

petitioners first demonstrate that there currently exists some class of 

known or cognizable incidental digital phonorecord deliveries.'' DiMA 

comments at 3.

    The Copyright Office, on behalf of itself and the Library of 

Congress, seeks comments on these proposals for handling a rate 

adjustment proceeding

[[Page 14103]]

in the context of a rulemaking proceeding on the status of DPDs.


    The advent of new means of digitally delivering record music to 

consumers presents new challenges and questions to the interpretation 

and application of the section 115 license. Some of these new means, as 

described by the parties seeking action from the Copyright Office, are 

discussed above. There may be others, existing or contemplated. We also 

invite comment on whether there are other technologies and services 

whose existence might affect our interpretation and application of 

section 115.

    Dated: March 6, 2001.

David O. Carson,

General Counsel.

[FR Doc. 01-5832 Filed 3-8-01; 8:45 am]