(concurring). I agree with my colleagues in the majority that the common law of this state does not recognize a right of public performance for the creators of sound recordings fixed prior to February 15, 1972 (see majority op at 605), and that the question whether to recognize such a right is best left to the legislature (see id. at 606). Consequently, I also generally agree with my colleagues in the majority that the pertinent part of the certified question, which asks whether there is “a right of public performance for creators of sound recordings under New York law” (Flo & Eddie, Inc. v Sirius XM Radio, Inc., 821 F3d 265, 272 [2d Cir 2016]), should be answered in the negative.
*611In seeking guidance from this Court, however, the United States Court of Appeals for the Second Circuit noted that we should exercise our power to “reformulate or expand [its certified] question as appropriate” (id. [internal quotation marks omitted]; see Beck Chevrolet Co., Inc. v General Motors LLC, 27 NY3d 379, 389 [2016]). That court also “welcome[d] [our] guidance on any other pertinent questions that [we] wish[ ] to address” (Flo & Eddie, Inc., 821 F3d at 272). I write separately to accept that invitation.
Although the question whether to recognize a right of “public performance” for creators of sound recordings is for the legislature, the preliminary question how to define “public performance” is for this Court. In a technologically simpler time the distinction between performance and publication was easy to define. That is not true now. Presently, access to sound recordings falls along a continuum ranging from public performance to publication; it begins with AM/FM radio broadcasters (performance) and concludes with consumer purchase of compact discs or other hard copies of sound recordings (publication).
This continuum is best described in five steps:
1. AM/FM radio—sometimes called “terrestrial” radio. These broadcasters rely on advertising; access is free.
2. Internet “radio” operations (such as Pandora)—these broadcasters also have advertisers and are free.
3. Subscription broadcast services (such as defendant)— where consumers pay a monthly fee and are provided with commercial-free content in genres selected by the user (i.e., sports radio, 60s music, etc.). The service is available over the Internet and by satellite.
4. Interactive/“on-demand” services (such as Apple Music)— where, for a monthly subscription fee, consumers are provided access to an almost unlimited music library that is available at any time on multiple platforms (i.e., phone, iPad, computer). This service, in essence, rents the sound recording to the listener as long as the monthly fee is paid.
5. Purchase of a sound recording, either digital (i.e., through iTunes or Google Play) or hard copy (i.e., CD, vinyl, tape).
The Court’s focus generally rests with the broadcasters on the continuum, and my concern specifically rests with the method of broadcasting in the fourth step of that series. To *612permit listeners to specifically select a sound recording for use through an “on-demand” service is to rent or lease that recording to those listeners inasmuch as they do not own it, but can instantly enjoy its use. To rent or lease a sound recording through an “on-demand” service is for the provider to substitute for the purchase of that recording. To prevent the sale of a sound recording through the “on-demand” rental or lease of it is not to perform the recording, but to publish it.
To that end, while I agree with the conclusion of my colleagues in the majority that the common law of this state does not recognize a right of public performance, I would answer the pertinent part of the certified question in the negative with this caveat: “public performance” does not include the act of allowing members of the public to receive the “on-demand” transmission of particular sound recordings specifically selected by those listeners.
Backdrop
On balance, I appreciate that the common law of this state recognizes a right of performance in works that arguably are similar to sound recordings (e.g., plays [see Palmer v De Witt, 47 NY 532, 535-536, 540-541 (1872)]; films [see Brandon Films v Arjay Enters., 33 Misc 2d 794 (Sup Ct, NY County 1962)]; and film clips [see Roy Export Co. Establishment of Vaduz, Liechtenstein v Columbia Broadcasting Sys., Inc., 672 F2d 1095, 1097-1099 (2d Cir 1982) (applying New York law)]). I also appreciate that RCA Mfg. Co. v Whiteman (114 F2d 86 [2d Cir 1940], cert denied 311 US 712 [1940]), its progeny, and the congressional treatment of copyright law do not answer the question whether the common law of this state has recognized a right of performance in sound recordings fixed prior to February 15, 1972.
The discussion of federal copyright law in the majority opinion (see majority op at 590-594) is helpful in reviewing the state common-law question now before us. As this Court noted in Capitol Records, Inc. v Naxos of Am., Inc. (4 NY3d 540 [2005]), in “examining copyright law, a page of history is worth a volume of logic” (id. at 546 [internal quotation marks omitted]). The evolution of the federal copyright scheme—including the recognition in 1995 of a limited performance right in recordings fixed after February 15, 1972—has been methodical and balanced. Indeed, the federal forging of that right occurred only after significant deliberation, that is, “only after Congress *613heard from dozens of witnesses about the competing policy considerations, after committees produced multiple reports detailing their findings, . . . after Congress revised the proposed legislation to address each issue,” and after the Register of Copyrights issued an analysis of nearly 1,000 pages “recommending a limited performance right for post-1972 recordings” (brief for defendant-appellant at 43; see HR Rep 104-274, 104th Cong, 1st Sess [1995]; S Rep 104-128, 104th Cong, 1st Sess, reprinted in 1995 US Code Cong & Admin News at 356 [1995]).
“Terrestrial” Radio
The common law of this state evolves in a similarly measured and cautious manner (see Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d 14, 28 [2006]; Norcon Power Partners v Niagara Mohawk Power Corp., 92 NY2d 458, 468 [1998]), and I agree with my colleagues in the majority that the question whether there is a right of public performance in sound recordings fixed prior to February 15, 1972 is best answered by the legislature. On the one hand, artists obviously have an interest in receiving compensation for the performance of sound recordings to which they have contributed from broadcasters that perform such works for a profit. Perhaps there is even a strong rationale for such compensation: the author of one of a collection of short stories undoubtedly could be entitled to a royalty with respect to the sale of that collection, and to that end it arguably is illogical that a musician who contributes to a sound recording that was fixed prior to February 15, 1972 and that is now publicly performed by a broadcaster for profit should not be entitled to a royalty with respect to that performance.
On the other hand, there are myriad reasons for us not to make such a significant leap here. The relationship between the recording industry and the “terrestrial” radio industry was and perhaps still is a strong one inasmuch as record companies have used and continue to use free airplay (or “spins”) to generate revenue from album sales, concert ticket sales, and merchandising (see Bonneville Intl. Corp. v Peters, 347 F3d 485, 487-488 [3d Cir 2003] [“The recording industry and broadcasters existed in a sort of symbiotic relationship wherein the recording industry recognized that radio airplay was free advertising that lured consumers to retail stores where they would purchase recordings. And in return, the broadcasters *614paid no fees, licensing or otherwise, to the recording industry for performance of those recordings” (footnote omitted)]; see also Robert L. Hilliard & Michael C. Keith, The Broadcast Century and Beyond 151 [5th ed 2010] [“(t)he recording industry manufactured the popular, youth-oriented music radio wanted and needed, and the (radio medium) provided the exposure that created a market for this product. From the perspective of the recording industry, radio was the perfect promotional vehicle for showcasing its established, as well as up-and-coming, artists”]; James N. Dertouzos, Radio Airplay and the Record Industry: An Economic Analysis at 5 [2008] [“a significant portion of music industry sales of albums and digital tracks can be attributed to radio airplay—at a minimum 14 percent and as high as 23 percent”], available at http:// www.nab.org/documents/resources/061008_Dertouzos_Ptax.pdf, cached at http://www.nycourts.gov/reporter/webdocs/ 061008_Dertouzos_Ptax.pdf).1
Internet and Satellite “Radio”
The analysis with respect to Internet and satellite broadcasters is closer. The economics of Internet and satellite “radio” (which comprise the second and third steps on my continuum) are not the same as those of “terrestrial” radio. Conventional radio has a partnership with the recording industry, and the economics of that medium have been predicated upon the idea that such broadcasters are not responsible for royalties to performers of sound recordings transmitted over their “air.”
By contrast, Internet and satellite broadcasting (which include the transmissions in which defendant engages) are relatively new phenomena, meaning that they did not grow together or in harmony with the recording industry. That is, while “terrestrial” broadcasters have long contributed to the growth of the recording industry and its artists, digital broadcasters have not given corresponding assistance to that enterprise. Perhaps Congress recognized as much in passing *615the Digital Performance Right in Sound Recordings Act of 1995 (Pub L 104-39, § 1, 109 US Stat 336 [Nov. 1, 1995]), which granted a performance right in sound recordings fixed after February 15, 1972 and required Internet “radio” broadcasters, but not “terrestrial” radio broadcasters, to license such recordings (see S Rep 93-983 at 225-226 [capturing the view of six Senators that, “(f)or years, record companies . . . gratuitously provided records to (radio) stations in hope of securing exposure by repeated play over the air”]). Nevertheless, given the complex and significant nature of this performance right question, I agree with my colleagues in the majority that the legislature should determine whether to establish a right of public performance even with respect to the “new” Internet and satellite broadcasters.
Interactive/“On-Demand” Internet Broadcasters
With respect to the fourth step on my continuum, certain Internet broadcasters—such as Apple Music, Spotify’s premium subscription, Rhapsody, and Amazon’s Music Unlimited offering—permit users to peruse a catalog of millions of songs and to “call them up on any device, including [one’s] phone, anytime [one] wants” (Peter Kafka, Amazon Takes on Spotify with Streaming Music Services that Cost Less than $10 a Month, Oct. 12, 2016, http://www.cnbc.com/2016/10/12/amazon-takes-on-spotify-with-streaming-music-services-that-cost-less-than-10-a-month.html). One “can also download them, so [that one] can play them when . . . not connected to the internet” {id.). They cannot be directly converted to a hard copy. When the service ends, the user loses all access to music that has been downloaded.
In determining whether there is a common-law right of public performance for recordings fixed prior to February 15, 1972, we necessarily have occasion to speak to the nature and the limits of such right. In the realm of federal copyright law, “publication” is defined as “the distribution of copies or pho-norecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending” (1-4 Nimmer on Copyright § 4.03 [B], citing 17 USC § 101; cf. Naxos, 4 NY3d at 560 [“ ‘publication’ is a term of art that has distinct meanings in different contexts”]). To allow a user to regularly, specifically, and directly access an exact sound recording “on-demand” is not to facilitate the “public performance” of such recording, but to publish that work and therefore to infringe upon the right of *616the copyright holder to sell it (cf. id. at 560 [“in the realm of sound recordings, it (is) the law in this state . . . that, in the absence of federal statutory protection, the public sale of a sound recording otherwise unprotected by statutory copyright does not constitute a publication sufficient to divest the owner of common-law copyright protection”]).
One of the amici astutely notes that “[increasing numbers of consumers have turned to digital streaming services as their primary source of musical content.” In fact, “[t]he move by consumers away from owning music to renting it from services like Spotify and Apple Music has caught fire” (Neil Shah, The Summer That Streaming Took Over, Wall St J, Aug. 25, 2016, available at http://www.wsj.com/articles/the-summer-that-streaming-took-over-1472151516). Consumers “who pay $10 a month for a subscription to Spotify or Apple Music listen to music for a full 27 hours a week”—“three hours more a week than those who listen for free on YouTube and Spotify’s ad-supported site and more than double the amount non-streamers listen” (id.). The rising popularity of instant, unfettered access to catalogs that may exceed 30 million sound recordings (see Madi Alexander & Ben Sisario, Apple Music, Spotify and a Guide to Music Streaming Services, NY Times, Apr. 5, 2016, available at http://www.nytimes.com/interactive/2015/06/30/ business/media/music-streaming-guide.html) has dampened music sales: digital music track and compact disc sales have declined in direct correlation to the increase in the number of songs streamed through “on-demand” services (see Victor Luckerson, Spotify and YouTube Are Just Killing Digital Music Sales, Time, Jan. 3, 2014, available at http://business.time.com/ 2014/01/03/spotify-and-youtube-are-just-killing-digital-music-sales/).
The evolution of technology should be accompanied by the evolution of the law. The “broad and flexible power of the common law” needs “to keep pace” with this new means of music consumption (Naxos, 4 NY3d at 555 [internal quotation marks omitted]). We must recognize that the rental or lease of sound recordings fixed prior to February 15, 1972 by Internet broadcasters who provide the public “on-demand” access to such recordings is a form of publication under copyright law.2
Indeed, the “on-demand” access to sound recordings offered to the public is unique in that it requires a paid subscription *617that connects the customer to a nearly limitless catalog of music and gives the customer the power to instantly listen to recordings specifically selected by that user without purchasing even a single one of those songs.3 In essence, unlike “terrestrial,” Internet, and satellite radio operations, which select and play sound recordings for all of their listeners, “on-demand” services permit recordings to be selected and played by each of their users.
A 2011 report of the United States Copyright Office foresaw that the rise of such streaming services could lead to a fall in the sale of sound recordings (see Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings: A Report of the Register of Copyrights 45 [2011] [“It is possible that a state court would entertain a claim for . . . common law copyright infringement (where) pre-1972 sound recordings were being made available through internet streaming, particularly if it were persuaded that the use was substituting for purchases of the plaintiffs recording”]). Yesterday’s prediction has become today’s reality.
While I agree with my colleagues in the majority that the question whether to recognize a right of “public performance” in sound recordings fixed prior to February 15, 1972 is best answered by the legislature, I would conclude that “public performance” does not include the act of allowing members of the public to receive the “on-demand” transmission of sound recordings specifically selected by those listeners.
Rivera, J. (dissenting). On this certified question, the United States Court of Appeals for the Second Circuit asks whether New York recognizes a right of public performance in sound recordings and, if so, what is the scope of such right (Flo & Eddie, Inc. v Sirius XM Radio, Inc., 821 F3d 265, 272 [2d Cir 2016]). Contrary to the conclusion of my colleagues, New York’s broad and flexible common-law copyright protections for sound recordings encompass a public performance right that extends to the outer boundaries of current federal law, and ceases upon preemption by Congress.
*618L
The Turtles are an American rock band that formed in the 1960s and signed to White Whale Records in 1965. The band had a number of hit songs—the most notable of their songs is “Happy Together,” which reached the number one spot on the Billboard charts in 1967 and is considered a quintessential 1960s recording.
The band acquired the copyright to the master recordings of their albums in 1971 after they sued White Whale Records for underpayment of royalties. Thereafter, two band members bought out the others’ rights to the albums and incorporated ownership of the recording’s copyright under “Flo & Eddie, Inc.” Since that time, Flo & Eddie has licensed the Turtles’ songs for use in movies, television and commercials, and for digital sale through music vendors like iTunes and Amazon.
Sirius XM Radio Inc. (Sirius) is a commercial radio broadcast company with over 25 million subscribers, making it one of the largest radio and Internet-radio broadcast companies in the United States. Unlike traditional AM/FM radio, Sirius charges subscribers a monthly fee, ranging from $9.99 to $18.99 per month, to generate revenue for its music broadcasting and streaming services. Sirius offers access to a variety of music, talk shows, sports coverage, and news broadcasts through satellite and Internet connections for play on personal computers and media devices. One of its main selling points is that Sirius subscribers can personalize the commercial-free music channels.
Sirius markets itself as a replacement for AM/FM radio by offering a broader reception range than terrestrial radio, available in vehicles of every major United States automobile company. Like some AM/FM channels, Sirius also features themed channels, including separate stations for period music, for example from the 1940s, 1950s, and 1960s. Yet, unlike traditional AM/FM radio with its limited reception, Sirius subscribers pay for seamless listening of various music genres, provided commercial-free, 24 hours a day, seven days a week, for the entire period their subscription is effective. Thus, without having to change channels, a subscriber can travel cross-country and enjoy uninterrupted and unlimited play of self-selected music within the Sirius coast-to-coast satellite coverage area. Additionally, Sirius provides a “rewind” function for its radio channels, which allows subscribers to jump back *619in the broadcast up to five hours in the past and replay music that has already aired.1
Sirius also allows subscribers to download music directly from its website, so that the subscriber can listen to a desired song from a computer or a variety of mobile media devices at any time. Additionally, Sirius has a streaming service, which allows subscribers with Internet or cellular access to stream any song in the Sirius catalog on-demand, without waiting to download a file.2
Sirius has a library of over 280,000 songs, and 42,000 of these songs were recorded prior to 1972. The pre-1972 library includes songs by the Turtles, 15 of which have been “performed,” meaning broadcast or streamed, by Sirius. At the time the Sirius executives were deposed, Sirius had never entered into a licensing agreement to broadcast any of the pre-1972 songs from its library, and did not believe it needed such an agreement.3
The business model and commercial success of Sirius and other digital music providers has dramatically and permanently changed the music industry. The primacy of terrestrial and analog radio is a thing of the past. Gone are the days when a listener’s sole means of acquiring music for personal enjoyment was by obtaining a record, cassette tape, or compact disc. The fast-paced changes wrought by the “digital music era” have caused devastating impacts on the music industry. In its first iteration, peer-to-peer sharing programs allowed free access to music by illegally downloading audio files—this undercut record and compact disc sales and threatened traditional revenue streams for record companies and artists (see A&M Records, *620Inc. v Napster, Inc., 239 F3d 1004, 1016-1017 [9th Cir 2001]; see also Tamara Kurtzman, The Day Big Music Died, 20 J Internet L 1, 8-9 [2016]). With the arrival of legal downloading programs that charge customers to purchase music downloads, such as iTunes, the music industry found a new source of revenue (see Recording Industry Association of America, Year End Statistics, 1989-2007). However, that revenue has been “cannibalized” by the growing popularity of services that allow a listener to stream and download music for a flat subscription rate (78 Fed Reg 23,054, 23,066 [Apr. 17, 2013] [capturing Sirius’ comments to proposed rule change, in which Sirius noted that streaming services cannibalize record sales]).
Throughout this evolution in the manner by which a listener accesses and enjoys music, the market for records, tapes, and compact discs from which music is communicated and perceived has continued to shrink and is likely never to rebound (see Kurtzman, supra at 10). As these technological advances continue to rock the music industry, Flo & Eddie have turned to the courts and asserted their copyright interests in the performance of their songs and the profits made by Sirius from playing and facilitating digital access to the Turtles’ music.
In their New York federal lawsuit, Flo & Eddie alleged, in part, that Sirius violated New York’s common-law right of public performance by broadcasting and streaming pre-1972 sound recordings without a license, and collecting revenue from subscribers who pay to hear the music. They successfully defended against summary judgment and found a receptive ear in the district court, which held that New York’s common law recognizes a right of public performance. After the Second Circuit accepted an interlocutory appeal squarely presenting the issue, that court certified the following question for our consideration: “Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?” (Flo & Eddie, Inc., 821 F3d at 272).
Contrary to my colleagues, I conclude that decisional law, statutory mandates, legislative history, and the doctrinal foundations of private rights of ownership compel a determination that our common law recognizes a creator’s right of public performance in sound recordings. The beneficial contours of this right and the creator’s interests in receiving compensation for the labor that produced the sound recording align with society’s interest in avoiding exploitation of artists and their *621creative works. This right is balanced against the goal of increasing public access to creative works, the expectations of certain sectors of the music recording industry, and the reality that Congress has placed a time limit on common-law protections for pre-1972 sound recordings while providing a limited right of public performance for all sound recordings made after February 15, 1972.
I reject a parochialism that justifies turning a blind eye to the exploitative practices of today’s music industry made possible by technological advances and that, as a consequence, excludes from our common-law copyright in sound recordings a quintessential property interest in the use of these works, and limits a creator’s opportunity to derive financial benefit from their performance (majority op at 594-595; concurring op at 613). As this Court has previously stated, “[t]he common law is not rigid and inflexible .... [It is] a living organism which grows and moves in response to the larger and fuller development of the nation” (Oppenheim v Kridel, 236 NY 156, 163-164 [1923]). Indeed, it is this Court’s duty to apply New York’s common-law copyright to the changing landscape of the music industry and protect the interests of creators of sound recordings against those who profit from the fruits of others’ labor, without compensating the copyright holder, and do so in a manner that jeopardizes the primary source of revenue for creative genius.
IL
As far back as 1831, federal law has provided a copyright for musical compositions (Copyright Act of 1831 [21st Cong, 2d Sess, ch 16], 4 US Stat 436; see also Bonneville Intl. Corp. v Peters, 347 F3d 485, 487 [2003]). However, federal copyright law has continually relied on common-law principles and, since 1909, the federal Copyright Act has consistently expressed that state common law, unless preempted, may afford copyright protections for sound recordings (17 USC § 2, as added by Pub L 60-349, § 2, 35 US Stat 1076 [1909]; Capitol Records, Inc. v Naxos of Am,., Inc., 4 NY3d 540, 553 [2005]). In 1971, when Congress first confirmed copyright protections for sound recordings that are fixed, meaning recorded, on or after February 15, 1972, it also left untouched any state rights with respect to sound recordings fixed before that date (Sound Recordings Act, Pub L 92-140, 85 US Stat 391 [1971], codified at 17 USC § 102 [a] [7]). The United States Supreme Court has upheld the constitutionality of this dual copyright system, and recognized, *622that where Congress “has left the area unattended, ... no reason exists why the State should not be free to act” (Goldstein v California, 412 US 546, 570 [1973]).
Congress provided a limited right of public performance in 1995, entitling copyright holders to royalties when the recording was performed, i.e. broadcast via digital audio transmission (17 USC § 106 [6]). Once again, Congress maintained a role for state law and declared that “[w]ith respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067” (id. § 301 [c]). The federal law left to the states the choice both to recognize a copyright in sound recordings and to define the parameters of state law protections. Thus, with respect to the issues presented by the certified question, not only is the “area unattended,” but Congress has specifically accounted for state copyright protections (see id. § 301 [c]).
In response to a previous certified question from the Second Circuit, this Court clarified that our State’s common-law copyright protections apply to pre-1972 sound recordings (Naxos, 4 NY3d at 560). As part of a comprehensive discussion of the history of United States copyright law, with its roots in English copyright, and upon a thorough review of federal legislation, the Court stated that federal copyright developed to address concerns related to “property rights in tangible intellectual products” (id. at 546). The Court explained that “[w]ith the dawn of the 20th century, courts throughout the country were confronted with issues regarding the application of copyright statutes, which were created with sole reference to the written word, to new forms of communication. One of the first such challenges involved music” (id. at 552). Specifically, the Court identified a common-law history of protection for sound recordings and held that, absent specific federal preemption, the common law was free to identify the moment of divestment of common-law protections in audio musical works (id. at 552-553).
With regard to when federal copyright preempts state common law—which occurs , upon “first publication”—the Court noted that for literary works, the point of divestment of common-law rights historically was the moment of public distribution of the writing (id. at 560). In the context of audio recordings, several early opinions rejected the sale of a record as “publication” for sound recordings because the copyright *623holder did not intend to relinquish control over a performance by selling a record of the musical work (id. at 552-555, citing Metropolitan Opera Assn., Inc. v Wagner-Nichols Recorder Corp., 199 Misc 786, 798 [Sup Ct, NY County 1950]; Waring v WDAS Broadcasting Sta., 327 Pa 433, 443, 194 A 631, 636 [1937]). The Naxos Court similarly concluded that, so long as the federal law has not preempted state copyright law as regards sound recordings, our common law does not treat the broadcast of the recording as a publication that divests a copyright holder of any common-law copyright: “in the realm of sound recordings, it has been the law in this state for over 50 years that, in the absence of federal statutory protection, the public sale of a sound recording otherwise unprotected by statutory copyright does not constitute a publication sufficient to divest the owner of common-law copyright protection” (id. at 560 [citations omitted]).
In reaching this conclusion, the Court made two significant observations. First, that “the historical distinction in the treatment of literary and musical works by Congress accounts for the lack of federal statutory copyright protection for sound recordings,” and “[i]n the absence of protective legislation, Congress intended that the owner of rights to a sound recording should rely on the ‘broad and flexible’ power of the common law to protect those property rights after public dissemination of the work” {id. at 555). Second, that “both the judiciary and the State Legislature intended to fill [the] void” left by the federal Copyright Act “by protecting the owners of sound recordings in the absence of congressional action” {id. at 559). Based on this understanding of the elasticity of New York’s common law in the area of copyright as grounded in our State’s interest in protecting recordings not covered by federal law and the historical changes in technology impacting musical artists, the Naxos Court declared that “the common law ‘has allowed the courts to keep pace with constantly changing technological and economic aspects so as to reach just and realistic results’ ” 9id. at 555, quoting Metropolitan Opera, 199 Misc at 799).
Thus, until the 2067 effective date of federal preemption, our common-law copyright governs the rights and remedies available to owners of sound recordings, and a copyright holder’s interests are not relinquished by the mere sale of the musical work. While the federal Copyright Act provides a copyright in a musical composition for “the notes and lyrics of the song” and a *624copyright for “the recorded musical work performed by a specific artist” for sound recordings fixed after February 15, 1972 (Recording Indus. Assn. of Am., Inc. v Librarian of Congress, 608 F3d 861, 863 [DC Cir 2010]; 17 USC §§ 102 [a]; 302 [a]), our state common-law copyright for pre-February 15, 1972 sound recordings is subject to a federally designated shelf life. The Second Circuit asks whether our common law encompasses a right of public performance, viable until the effective date of federal preemption. I believe such right is a constituent part of a creator’s property interests in a sound recording.
HH HH f—i
The multiple rights of ownership, use, and possession are expressed as “ ‘a bundle of sticks’—a collection of individual rights which, in certain combinations, constitute property” (United States v Craft, 535 US 274, 278 [2002]). “It is axiomatic, of course, that state law is the source of those strands that constitute a property owner’s bundle of property rights” (Nollan v California Coastal Comm’n, 483 US 825, 857 [1987, Brennan, J., dissenting]; see also 63C Am Jur 2d, Property § 1).
This long-standing conceptualization of property rights applies to a copyright holder’s interest in tangible and intangible intellectual products, and includes a right of public performance (17 USC § 106 [4]; Harper & Row, Publishers, Inc. v Nation Enterprises, 471 US 539, 546 [1985] [“Section 106 of the Copyright Act confers a bundle of exclusive rights to the owner of the copyright”]; Penguin Group [USA] Inc. v American Buddha, 16 NY3d 295, 305 [2011] [“The Copyright Act gives owners of copyrighted literary works five ‘exclusive rights,’ which include the right of reproduction; the right to prepare derivative works; the right to distribute copies by sale, rental, lease or lending; the right to perform the work publicly; and the right to display the work publicly”]; S Rep 94-473, 94th Cong, 1st Sess [1975] [“These exclusive rights, which comprise the so-called ‘bundle of rights’ that is a copyright, are cumulative and may overlap in some cases”]).4
Like tangible property rights, the intangible rights subject to copyright law may be relinquished in whole or part, as the *625holder deems most appropriate and beneficial (see Mills Music, Inc. v Snyder, 469 US 153, 173-174 [1985] [recognizing that the bundle of rights associated with a copyright in a literary work can be alienated]; see also S Rep 94-473, 94th Cong, 1st Sess [1975]). This basic tenet of property law is central to determining whether there is any reason to exclude a right of public performance from the bundle of rights in a sound recording.
Indeed, New York courts have recognized a right of performance in other media (see e.g. Palmer v De Witt, 47 NY 532, 535-536 [1872] [plays]; Brandon Films v Arjay Enters., 33 Misc 2d 794 [Sup Ct, NY County 1962] [films]; De Mille Co. v Casey, 121 Misc 78, 87-88 [Sup Ct, NY County 1923] [photoplays]).5 There is no logical basis to distinguish between the copyright protections of those works and a sound recording. All involve creative inspiration and genius, application of artistic ability, and the development of a final product marketable to the public. The creator’s interest in the sound recording is no less real or significant than with other forms by which an artist communicates a creative idea, a concept that the majority ignores in reaching its conclusion. Indeed, addressing a slightly different matter, this Court in Naxos recognized performance is not the same as the mode of reproduction, and stated that the copyright holder in that case “has a protected property interest in the performances embodied on the shellac records” (Naxos, 4 NY3d at 564 n 11).
The right to perform a sound recording publicly is a property interest in a specific rendition of an artistic work. This public expression of the musical composition has its own unique aesthetic quality, which, once recorded, preserves for the future the artist’s contribution to the final work. Thus, the distinctiveness of the work as heard is due in part to the artist’s execution of the musical composition. When an artist brings to life the notes of a song and instrumental composition, the artist’s rendition is a personal representation of the musical piece. Nat King Cole’s silk-voiced rendition of “Unforgettable” and “The Christmas Song,” Frank Sinatra’s self-assured version of “My Way,” Peggy Lee’s highly lyricized “Fever,” Aretha Franklin’s *626commanding “Respect,” Doris Day’s full-voiced “Que Sera, Sera,” the Beatles’ harmonious “Hey Jude” and unbridled “Revolution,” Billie Holiday’s aching performance of “Strange Fruit,” Jimi Hendrix’ electric performance of “The Star-Spangled Banner,” Marvin Gaye’s enchanting “What’s Going On,” and the Turtles’ “Happy Together” are but some examples of the most well-known and beloved artistic renditions of musical works available to the public through a tangible medium.6 These performances—like those of lesser known and unpro-moted or minimally commercially promoted artists—reflect skill and verve essential to an interpretive creative work. Most importantly, they constitute an interest in property no less consequential or worthy of legal recognition and protection than the property interest in the musical composition, for without the artist’s performance there would be no sound recording.7 Indeed, the sound recording is a different product from the musical composition, i.e. the combination of music notes and, in the case of songs, the lyrics. Moreover, each rendition is a version that can be made available by publicizing its performance.8
*627The law’s protection for just such a property interest in a performance was recognized early on in Metropolitan Opera. That court held “[t]he law has also . . . protected the creative element in intellectual productions—that is, the form or sequence of expression, the new combination of colors, sounds or words presented by the production” (199 Misc at 798; see also Naxos, 4 NY3d at 555 [adopting the reasoning of Metropolitan Opera]).
Other jurisdictions have recognized that the creative value of a performance gives rise to a property interest in controlling the broadcast of that performance. The Supreme Court of Pennsylvania in Waring v WDAS Broadcasting Sta. (327 Pa 433, 194 A 631 [1937]) upheld an injunction barring an unauthorized radio station’s broadcast of an orchestra’s performance, and noted:
“[a] musical composition in itself is an incomplete work; the written page evidences only one of the creative acts which are necessary for its enjoyment; it is the performer who must consummate the work by transforming it into sound. If, in so doing, [the performer] contributes by . . . interpretation something of novel intellectual or artistic value, [the performer] has undoubtedly participated in the creation of a product in which [the performer] is entitled to a right of property, which in no way overlaps or duplicates that of the author in the musical composition” (327 Pa at 441, 194 A at 635).
Similarly, in Waring v Dunlea (26 F Supp 338, 340 [ED NC 1939]), a federal district court recognized a right of performance, explaining:
“The great singers and actors of this day give something to the composition that is particularly theirs, and to say that they could not limit its use is to deny them the right to distribute their art, as they may see fit, when they see fit. Surely, their labors and talents are entitled to the privilege of distribution, especially where, as here, the privilege is subject to definite terms and bounds” (id.).
Moreover, as Metropolitan Opera recognized, “[t]o refuse to the groups who expend time, effort, money and great skill in producing these artistic performances the protection of giving them a ‘property right’ in the resulting artistic creation would *628be contrary to existing law, inequitable, and repugnant to the public interest” (Metropolitan Opera, 199 Misc at 802). This same appreciation for the labor and creative skill represented by a performance can also be found in a report on the right of public performance issued by the Federal Copyright Office.9 In that report, the Copyright Office stated that “[pjerformers are in the professional position of being forced to compete with, and of eventually being driven out of work by, their own recorded performances” (Register of Copyrights, Performance Rights in Sound Recordings, HR Doc 15, 95th Cong, 2d Sess at 4 [1978]). As further explained in the report, “[i]n the history of the communications revolution, performers offer the most dramatic examples of the concept known as ‘technological unemployment’ ” (id.).
Similarly, excluding the right of public performance from the creator’s copyright is contrary to society’s interest in protecting those whose labor has produced creative works (see Harper & Row, Publishers, Inc. v Nation Enterprises, 471 US 539, 548 [1985] [explaining that an author’s labor must be a protected interest when considering the fair use defense in a federal copyright claim]). Indeed, it rewards practices that undermine the traditional forms of revenue that sustain artists, and indulges exploitation made possible by the type of technology described in the instant case.
Nevertheless, Sirius urges this Court to rely on RCA Mfg. Co. v Whiteman (114 F2d 86, 89 [2d Cir 1940]) as the precedent upon which to determine that no right of performance has ever existed, but such reliance is misplaced. In that case, the Second Circuit determined that common law and statutory copyright protections prevent only unauthorized reproduction of a copyrighted work (id.). A copyright holder lost any control over the performance of a recording once that recording was broadcast because the broadcast constituted publication, such that the copyright holder could not control the broadcast of the recording in the future (id. at 88). The court dismissed a *629complaint that sought to enjoin a radio station from broadcasting a sound recording because the copyright owner lost any right to control that performance by publishing the recording {id. at 88).
The Second Circuit overruled Whiteman in Capitol Records v Mercury Records Corp. (221 F2d 657, 663 [2d Cir 1955]), explaining that the Metropolitan Opera decision clarified that the broadcast of a sound recording did not constitute publication of that recording and did not result in relinquishment of a right to control the performance of the recording (id., citing Metropolitan Opera, 199 Misc at 786).
The Metropolitan Opera approach to publication comports with the modern understanding of publication. As the Court has recognized, “the public sale of a sound recording otherwise unprotected by statutory copyright does not constitute a publication sufficient to divest the owner of common-law copyright protection” (Naxos, 4 NY3d at 560). Rather, publication is the point at which a copyright holder expressly and intentionally relinquishes any future right to control any aspect of the work’s future use (id.). In other words, publication only occurs when the copyright holder gives up all of the sticks in the bundle.10 Therefore, the broadcast of a sound recording does not constitute publication in the modern sense, and this aspect of Whiteman’s reasoning is erroneous.
Moreover, the underlying premise of Whiteman is inconsistent with the current understanding of a what copyright entails. The federal Copyright Act recognizes a copyright holder’s varied rights in property, such that the “bundle of sticks” metaphor describes a multi-faceted protection of interests (e.g. Harper & Row, 471 US at 546; 17 USC § 106 [4]). When the Copyright Act was amended in 1976, the Senate Report for the proposed bill indicated that section 106 was a codification of the “bundle of rights,” i.e. “the exclusive rights of reproduction, adaptation, publication, performance, and display” (S Rep 94-473, 94th Cong, 1st Sess [1975]). At the time, Congress’s inclusion of a right of performance in the statute indicated that it *630understood that state common law included a right of performance for other types of artistic works (17 USC § 301 [c]). White-man's limited characterization of what a copyright entails is no longer the accepted understanding. Moreover, limiting New York’s common law to reproduction of a record ignores the reality that a performance is an integral part of a sound recording and that our common law is not static, but rather allows for development of appropriate responses to technological advances (Woods v Lancet, 303 NY 349, 354 [1951] [“(I)t is the duty of the court to bring the law into accordance with present day standards of wisdom and justice rather than with some outworn and antiquated rule of the past”]).
To be sure, copyright in a sound recording has a peculiar history because it was made possible by technological advances that distinguish it from copyright in the written word, and, as discussed, initially sound recordings were not protected by federal copyright law (see Naxos, 4 NY3d at 552). When Congress amended the federal Copyright Act in 1972 to include post-1972 sound recordings, it explicitly withheld a right of performance from sound recording copyright holders (see 17 USC §§ 106 [4]; 114 [a]). At the time, Congress understood that state common law included a right of performance, for otherwise this express reservation would be unnecessary (id. § 301 [c]).
My colleagues’ grounds for excluding the right of public performance from New York’s common-law copyright in sound recordings are unpersuasive. The first reason is that no such right has previously been recognized in New York (majority op at 604). However, as I have discussed, a generic right of public performance as part of a copyright holder’s “bundle of rights” is well-established in decisional law and property doctrine. The fact that until now there has been no detailed explication on the right of public performance in sound recordings from this Court does not inexorably lead to the conclusion that no such right exists. Of course, since no New York state court has rejected the right of public performance, there is also no basis to exclude such right from the copyright holder’s protections. Regardless, the United States Supreme Court has warned against placing significance on the delayed assertions of copyright protections. “It is hardly incumbent on copyright owners ... to challenge each and every actionable infringement. And there is nothing untoward about waiting to see whether an infringer’s exploitation undercuts the value of the *631copyrighted work, has no effect on the original work, or even complements it” (Petrella v Metro-Goldwyn-Mayer, Inc., 572 US —, —, 134 S Ct 1962, 1976 [2014]; see also District of Columbia v Heller, 554 US 570, 625 [2008]).
The fact that the issue is now presented for our consideration reflects the realities of the music industry and the impact of technological advances on industry and customer practices, rather than consensus on the nonexistence of a common-law right of public performance. This leads to my colleagues’ second reason for excluding the right of performance from the interests of creators of sound recordings, namely their conclusion that music industry members historically understood that there is no right of performance (majority op at 604-605). However, the fact that some in the music industry argued for a federal right does not disclaim the existence of a common-law right. Rather, the majority’s reference to a four decade “inaction” is a red herring—the music industry has changed drastically since 1971 and 1995, as the ways in which fans enjoyed music are dramatically different than the digital delivery technology at issue here. The attendant consequences of this sea change for the industry and individual artists is well documented, providing the basis for the inference that this change in circumstances prompted copyright holders to invoke their rights. Further, if, as claimed, everyone in the music industry understood that no right of performance existed, there would be no reason for Congress to legislate on the assumption that state common law protects the right of performance and no need to set a 2067 date for federal preemption of such right (17 USC § 301 [c]).
The last reason my colleagues assert for denying the right is perhaps the most unsupportable because it is grounded in the perception that it is too difficult to define the scope of such a right (majority op at 606-607). Whether a right exists is a question separate from the expanse of the right, and the considerations regarding how best to protect the right as against competing interests and societal goals serve as no excuse for removing this “stick” from a copyright holder’s bundle of rights. Our common law does not bow to the challenges brought about by change. Rather, “[o]ur court said, long ago, that it had not only the right but the duty to re-examine a question where justice demands it” (Woods, 303 NY at 354). The law, and the equities as they stand today, support recognition of a creator’s right of public performance in a sound recording.
*632IV.
Turning to the scope of the right of public performance under New York law, my guiding principle is that the right of public performance addresses the imbalance of financial incentives and revenue streams. The commercial gain in digital transmissions that are charged directly to the customer reduces the customer’s incentive to purchase a copy of the sound recording in some other format that might garner financial gain to the copyright holder—for example where the performer is also the composer or holds other copyright interests. To this extent I am in agreement with my concurring colleague (concurring op at 614-615). A common-law right of public performance protects against technologies that reap financial gains from musical works and that jeopardize prior revenue streams of copyright holders, while also allowing the copyright holder to share in the profits. Moreover, the Court has long recognized its power to develop the common law when the legislature has failed to act but justice demands a change (see Woods, 303 NY at 354).
The analysis is informed by this Court’s acknowledgment that “state common-law copyright protection is no longer perpetual for sound recordings not covered by the federal act (those fixed before February 15, 1972), because the federal act mandates that any state common-law rights will cease on February 15, 2067” (Naxos, 4 NY3d at 560). For sound recordings fixed after February 15, 1972, federal law provides payment to copyright holders in sound recordings when broadcast via an interactive service (e.g. Spotify or Sirius’ streaming service), a radio station that requires a subscription (e.g. Sirius or Pandora), or certain other methods of rebroadcasting a licensed broadcast (17 USC § 114).
Before enactment of the federal law, Congress was made acutely aware of the urgency of establishing protections against the impact of digital broadcasting. In its 1991 report, the Copyright Office declared that
“[t]hirteen years have passed since the Copyright Office formally recommended to the Congress the enactment of a public performance right in sound recordings. Technological changes have occurred that facilitate transmission of sound recordings to huge audiences. Satellite and digital technologies make possible the celestial jukebox, music on demand, and pay-per-listen services. . . . Sound *633recording authors and proprietors are harmed by the lack of a performance right in their works” (Register of Copyright, Report on Copyright Implications of Digital Audio Transmission Services at 154-155 [Oct. 1991]).
Those same interests and concerns inform the proper boundaries of the public performance right for recordings that are fixed pre-February 15, 1972 and protected only by our common law.
Given our State’s long history of protecting rights in creative works (see Metropolitan Opera, 199 Misc at 786; Naxos, 4 NY3d at 560; former Penal Law § 441-c [L 1966, ch 988]) and recognizing that the federal law currently anticipates full preemption in 2067, our common-law right of public performance in pre-1972 sound recordings best serves both the creator and the public interest in access to those recordings by tracking the federal public performance right in post-1972 musical works.
Our common law is, of course, a creature of the state, recognized and expanded by our courts. It is independent of federal law and not limited by what may be national concerns addressed by federal legislation. However, the fact that federal law exists is important, especially in an area where Congress has specifically chosen to preempt state common-law rights in the future. The fact that a New York common-law right of public performance may serve state interests by drawing upon federal law does not ignore the primacy of our common law or diminish its status. Indeed, consideration of the current system of compensation under federal copyright law provides a much needed understanding of the impact of a common-law right of public performance on the music industry, and the mechanics of protecting that right. Further extending to pre-February 15, 1972 sound recordings protection that is at least equivalent to the federal right recognized in the post-1972 works allows us to treat both classes of sound recordings equally and avoids enhanced rights for one based not on a considered reason^out on an arbitrary date.
Notably, applying protections and limitations to define the right of performance that has been in place under federal law for over 20 years builds on an established framework, and one that is familiar to music industry stakeholders. Just as the industry adapted to paying royalties for the performance of sound recordings made after February 15, 1972, it will do the same under our common law for pre-1972 recordings, this time *634with the experience and wisdom of having done so under the federal law. Sirius is particularly well placed to address claims for compensation since it has settled with other record labels to temporarily pay licensing fees for its broadcast of pre-1972 recordings.11
Limiting the common-law right of public performance in sound recordings by exempting traditional AM/FM radio stations’ analog broadcasts recognizes the benefits to copyright holders from the airing of musical works through terrestrial radio. The broadcasts popularized the music played on the “airwaves” and incentivized purchase of the recordings (e.g. Bonneville, 347 F3d at 487-488 [discussing the symbiotic relationship between the recording industry and AM/FM radio stations]). There is no reason to extend protections against a performance medium that has increased revenue and—unlike digital performances—poses no financial threat to copyright holders.12 Similarly, exclusions for individual use—as compared to for-profit wholesale performance by Sirius and other digital music delivery entities—benefit the copyright holder without affecting the bottom line.
*635V
For the reasons I have explained, I would answer the certified question in the affirmative and define the scope of New York’s common-law copyright protections as coterminous with current federal law. Recognizing this right and defining its limits in this way is in line with “the ever-evolving dictates of justice and fairness, which are the heart of our common-law tradition” (Buckley v City of New York, 56 NY2d 300, 305 [1982]).
Judges Pigott, Fahey and Garcia concur, Judge Fahey in a separate concurring opinion; Judge Rivera dissents in an opinion in which Judge Abdus-Salaam concurs; Chief Judge DiFiore taking no part.Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of this Court’s Rules of Practice, and after hearing argument by counsel for the parties and consideration of the briefs and record submitted, the certified question answered in the negative.
. Perhaps the federal prohibition against “payola” also illustrates this point. “Payola” refers to the practice of paying for or otherwise inducing the broadcast of a recording on a radio station without a concomitant announcement of the acceptance of consideration in exchange for that airplay (see 47 USC §§ 317, 508). If “terrestrial” radio was not a promotional tool for sound recordings, then there would have been no reason for record companies and other entities interested in the sales of those recordings to have attempted to increase the number of “spins” such recordings received in the radio medium through the “payola” device.
. The point of my dissenting colleagues “that music streaming companies [do not] ‘publish’ music” in a traditional sense (dissenting op at 629 n 10) *617misses the mark. The new technology that is “on-demand” music streaming has given rise to what effectively is the new means of publication addressed herein.
. Of course, in this scenario, the “on-demand” providers benefit from the rental of the music in their catalogs to their subscribers, but artists and the recording companies are denied the opportunity to sell their music to those listeners.
. Comparatively, traditional AM/FM radio stations, or terrestrial stations, have a broadcast range that is limited by the Federal Communications Commission (see generally 47 CFR part 73). While in range, the radio listener does not have the ability to rewind a song that has already been broadcast.
. This is similar to services offered by other music streaming providers, such as Spotify or Apple Music.
. Since the interposition of this lawsuit, Sirius settled a separate lawsuit that requires it to pay record labels for the performance of the pre-1972 recordings in which the labels hold copyrights (U.S. Securities & Exchange Commission, Form 10-K [Feb. 2, 2016] at 12, Commission File No. 001-34295, Registrant: Sirius XM Holdings Inc.). This settlement agreement essentially creates a temporary licensing scheme, as Sirius will pay royalties for any broadcast from 2013 to 2017 (id.). Additionally, Flo & Eddie agreed to settle its other lawsuit against Sirius, which was filed in a California federal court and is pending court approval (see Flo & Eddie, Inc. v Sirius XM Radio Inc., US Dist Ct, CD Cal, No. 13-CV-05693, 2016).
. In other litigation between the parties, Sirius has acknowledged the applicability of the “bundle of rights” analogy to copyright ownership, while maintaining that it does not include exclusive rights of public performance (see Flo & Eddie, Inc. v Sirius XM Radio Inc., 2014 WL 4725382, *3, 2014 US Dist LEXIS 139053, *6-7 [CD Cal, Sept. 22, 2014, No. CV 13-5693 PSG (RZx)]).
. The Naxos Court provided a thorough explanation of the New York courts’ treatment of common-law copyright issues. Though the majority attempts to recharacterize the Naxos treatment of this jurisprudence to reach its conclusion, I find no occasion to recast the line of cases discussed in Naxos.
. Most of these songs are in the Sirius library, and the company advertises these recordings on its website as a means to attract customers (Sirius XM, Channel Lineup, www.siriusxm.com/channellineup/ ?hpid=02010023&intcmp=SXM_HP-NAV_0916_DEF_HDR_PROG_ CHANNEL-LINEUP [last visited Nov. 7, 2016]).
. Several amici contend that the right of performance is unnecessary because record labels hold the copyrights to most pre-1972 recordings, not the artists (see e.g. brief of CBS Radio Inc. as amicus curiae in support of appellant Sirius XM Radio Inc. at 16-18, citing Register of Copyrights, Report on Performance Rights in Sound Recordings, HR Doc 15, 95th Cong, 2d Sess at 824 [1978], Comments of Jack Golodner, Executive Secretary of the Council of AFL-CIO Unions for Professional Employees). Yet, the plaintiff-respondent in this very case is an entity which has a copyright in the music that its owners expended creative energy to create. Even assuming the number of artists who would benefit from a right of performance in pre-1972 works is small, there is no reason to interpret our common law narrowly to deny them compensation for their creative work. The alternative would allow digital audio broadcasters to reap the exclusive profits from performing the musical recordings by a means that diminishes potential compensation for copyright holders. This is a particularly unjust outcome given that the companies were not part of the creative process, and do little to maintain the demand for the creator’s traditional revenue source—purchase of an ownership right in a reproduction of the sound recording.
. Thus, the Turtles have an interest in the publication of their performance of their music, as well as the public performance of a rendition of their songs by others.
. The Copyright Office is the administrative agency responsible for executing the Copyright Act and is led by the Register of Copyrights (17 USC § 701). This office has been a sub-agency of the Library of Congress since 1897 and, since that time, the Register of Copyrights has been the “principal advisor to Congress on national and international copyright matters” by providing “impartial expertise on copyright law and policy” (Library of Congress, US Copyright Office, Overview of the Copyright Office, http:// www.copyright.gov/about/ [last visited Nov. 7, 2016], cached at http:// www.nycourts.gov/reporter/webdocs/httpswww.copvright.pdf).
. I disagree with the concurrence to the extent my colleague espouses the view that music streaming companies “publish” music (concurring op at 616). A basic tenet of copyright law is that the right of publication is solely the right of the owner and occurs only when the copyright holder “relinquishes” further rights in the work by “some unequivocal act indicating an intent to dedicate it to the public” (Palmer, ATI NY at 543). This definition of “publication” is not in dispute here (see 17 USC § 101; Naxos, 4 NY2d at 557).
. The existence of Sirius’ settlement agreements are relevant only to the extent that they demonstrate Sirius is no stranger to dealing with the performance right at issue—clearly, Sirius is able both to negotiate and enter into licensing agreements with those who hold a copyright in sound recording. Yet, the majority misconstrues my reference to these settlements (majority op at 609 n 7). The fact that the other settlement arose out of a claim under a California statute is of no import, as Sirius’ ability to deal with performance rights is agnostic of the source of law that created the right.
. The exemption would have limited adverse impact on the creator’s interest because analog radio performance is of little relevance in today’s digital music world, particularly on record sales (see Kurtzman, supra at 7). It is true that terrestrial radio stations have maintained listenership during the surge of both satellite and web-based radio (Nancy Vogt, Pew Research Center for Journalism & Media, Audio: Fact Sheet [June 15, 2016], http:// www.journalism.org/2016/06/15/audio-fact-sheet/, cached at http:// www.nycourts.gov/reporter/webdocs/http_www.journalism.pdf). However, the major radio broadcast companies are facing crippling debt, a problem that is not expected to be fixed anytime soon (Steve Knopper, Is Terrestrial Radio Facing Its Judgment Day with Fierce Digital Competition?, Billboard, May 19, 2016, www.billboard.com/articles/business/7378152/terrestrial-radio-digital-competition-iheartradio-cumulus). Moreover, though Americans continue to tune into terrestrial radio stations, this has done little to improve the well-documented plummet in sales of sound recordings in any form (Ben Sisario & Karl Russell, In Shift to Streaming, Music Business Has Lost Billions, NY Times, Mar. 24, 2016). As these statistics indicate, terrestrial radio has been pushed to the margins to the extent that the “symbiotic relationship” between the recording industry and broadcast companies has weakened.