Ҥ 1401. Unauthorized digital performance of pre-1972 sound recordings

“(a) Unauthorized Acts.—Anyone who, prior to February 15, 2067, performs publicly by means of digital audio transmission a sound recording fixed before February 15, 1972, without the consent of the rights owner, shall be subject to the remedies provided in sections 502 through 505 to the same extent as an infringer of copyright.

“(b) Certain unauthorized transmissions.—Transmissions of sound recordings fixed before February 15, 1972, shall be considered authorized and with the consent of the rights owner for purposes of subsection (a), if—

“(1) the transmissions are made by a transmitting entity publicly performing sound recordings protected under this title by means of digital audio transmissions subject to section 114;

“(2) the transmissions would satisfy the requirements for statutory licensing under section 114(d)(2) or would be exempt under section 114(d)(1), if the sound recordings were fixed on or after February 15, 1972;

“(3) in the case of transmissions that would not be exempt under section 114(d)(1) as described in paragraph (2), the transmitting entity pays statutory royalties and provides notice of its use of the relevant sound recordings in the same manner as required by regulations adopted by the Copyright Royalty Judges for sound recordings that are protected under this title; and

“(4) in the case of transmissions that would not be exempt under section 114(d)(1) as described in paragraph (2), the transmitting entity otherwise satisfies the requirements for statutory licensing under section 114(f)(4)(B).

“(c) Transmissions by Direct Licensing of Statutory Services.—

“(1) IN GENERAL.—A transmission of a sound recording fixed before February 15, 1972, shall be considered authorized and with the consent of the rights owner for purposes of subsection (a) if included in any license agreement voluntarily negotiated at any time between the rights owner and the entity performing the sound recording.

“(2) PAYMENT OF ROYALTIES TO NONPROFIT AGENT.—To the extent that such a license extends to transmissions of sound recordings fixed before February 15, 1972, that satisfy the conditions of subsection (b), the licensee shall pay 50 percent of the performance royalties for the transmissions due under the license to the collective designated to distribute receipts from the licensing of transmissions in accordance with section 114(f), with such royalties fully credited as payments due under such license.

“(3) DISTRIBUTION OF ROYALTIES BY NONPROFIT AGENT.—That collective shall distribute the royalties received pursuant to paragraph (2) in accordance with subparagraphs (B) through (D) of section 114(g)(2). Such payments shall be the sole payments to which featured and nonfeatured artists are entitled by virtue of such transmissions under the license.

“(4) RULE OF CONSTRUCTION.—This section does not prohibit any other license from directing the licensee to pay other royalties due to featured and nonfeatured artists for such transmissions to the collective designated to distribute receipts from the licensing of transmissions in accordance with section 114(f).

“(d) Relationship to State Law.—

“(1) IN GENERAL.—Nothing in this section shall be construed to annul or limit any rights or remedies under the common law or statutes of any State for sound recordings fixed before February 15, 1972, except, notwithstanding section 301(c), the following:

“(A) This section preempts claims of common law copyright or equivalent rights under the law of any State arising from digital audio transmissions of sound recordings fixed before February 15, 1972, made on and after the effective date of this section.

“(B) This section preempts claims of common law copyright or equivalent rights under the law of any State arising from reproductions of sound recordings fixed before February 15, 1972, made on and after the effective date of this section, for reproductions that would satisfy the requirements for statutory licensing under section 112(e)(1) and (6), if the sound recordings were fixed on or after February 15, 1972.

“(C) This section preempts claims of common law copyright or equivalent rights under the law of any State arising from digital audio transmissions and reproductions of sound recordings fixed before February 15, 1972, made before the effective date of this section, if—

“(i) the digital audio transmissions and reproductions would have satisfied the requirements for statutory licensing under section 114(d)(2) or been exempt under section 114(d)(1), or would have satisfied the requirements of section 112(e)(1), respectively; and

“(ii) within 270 days after the effective date of this section, except in the case of transmissions that would have been exempt under section 114(d)(1), the transmitting entity pays statutory royalties and provides notice of the use of the relevant sound recordings in the same manner as required by regulations adopted by the Copyright Royalty Judges for sound recordings that are protected under this title for all the digital audio transmissions and reproductions satisfying the requirements for statutory licensing under section 114(d)(2) and section 112(e)(1) during the 3 years prior to the effective date of this section.

“(2) RULE OF CONSTRUCTION FOR COMMON LAW COPYRIGHT.—For purposes of subparagraphs (A) through (C) of paragraph (1), claims of common law copyright or equivalent rights under the law of any State include claims that characterize conduct subject to such subparagraphs as an unlawful distribution, act of record piracy, or similar violation.

“(3) RULE OF CONSTRUCTION FOR PUBLIC PERFORMANCE RIGHTS.—Nothing in this section shall be construed to recognize or negate the existence of public performance rights in sound recordings under the law of any State.

“(e) Limitations on Remedies.—

“(1) FAIR USE; REPRODUCTION BY LIBRARIES AND ARCHIVES.—The limitations on the exclusive rights of a copyright owner described in sections 107 and 108 shall apply to a claim for unauthorized performance of a sound recording fixed before February 15, 1972, under subsection (a).

“(2) ACTIONS.—The limitations on actions described in section 507 shall apply to a claim for unauthorized performance of a sound recording fixed before February 15, 1972, under subsection (a).

“(3) MATERIAL ONLINE.—The limitations on liability described in section 512 of this title shall apply to a claim for unauthorized performance of a sound recording fixed before February 15, 1972, under subsection (a).

“(4) PRINCIPLES OF EQUITY.—Principles of equity apply to remedies for a violation of this section to the same extent as such principles apply to remedies for infringement of copyright.

“(f) Application of section 230 Safe Harbor.—For purposes of section 230 of the Communications Act of 1934 (47 U.S.C. 230), subsection (a) shall be considered ‘intellectual property laws’ under subsection (e)(2) of such section.

“(g) Rights owner defined.—In this section, the term ‘rights owner’ means the person who has the exclusive right to reproduce a sound recording under the law of any State.”.