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Abstract

The Copyright Act includes a “radio loophole” that permits radio stations to broadcast songs without paying royalties to sound recording copyright owners. In recent years, critics have attacked this loophole as being fundamentally unfair, depriving artists of revenue, hampering innovation in music, and contradicting international norms. This Note argues that Congress should close the loophole for another reason: it is out of line with historical trends.

Throughout U.S. copyright law history, Congress has routinely bestowed statutory carveouts and loopholes upon commercial and nonprofit entities alike. Some apply to copyright owners, and some apply to users of copyrighted works or entities that distribute copyrighted works. Although any given carveout is often the fruit of successful lobbying efforts, a broader look at the staying power of statutory carveouts reveals that they are more likely to persist when they serve a public interest, like many nonprofit entities do. Conversely, statutory copyright advantages tend to erode for commercial entities that lack strong public benefit rationales.

In the late 20th century, Congress could justify its codification of the radio loophole by pointing to the public benefits of radio—including its music discovery, public education, and emergency broadcasting functions. However, technological, legislative, and societal changes have combined to erode both the public benefits of radio and the public benefit justification for the radio loophole. Today, radio is less like public-benefitting entities whose statutory copyright advantages endure and more like commercial entities whose statutory advantages erode. Placing the radio loophole within this historical framework illustrates that the time has come for Congress to eliminate it. Without strong public benefits of radio as a justification, the radio loophole is now an antiquated result of bare lobbying efforts.

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