The rapid expansion of technology raises unique challenges for both the artistic community and the legal system. The Internet presents a tremendous opportunity for artistic exposure. It is also a potentially huge commercial market. But, as any musician who has heard the words Napster or MP3.com knows, the Internet is also a medium in which an artist can lose control of—and payment for—their music.
How a musician approaches the Internet depends upon what one wishes to achieve. If one is in the relatively early stages of a career, the concern for maximal exposure will likely be dominant. At that point, the musician’s goal is to get as much exposure as possible so as to increase attendance at performances, build interest in their music, and grow an audience base. This is then used to convince management and/or a record label that it will be financially worth that business’s time to take that artist onto its roster. Hence, the need for protection and control of an artist’s music once it is on the Internet may be minimal. Uncontrolled access and duplication may be a plus factor because it serves to spread the word.
If the artist wishes to control and financially benefit from placement of music on the net, the need for protection comes into play. This is appropriate for the musician who has produced their own recordings or is starting their own label, as well as for the signed artist. This article offers a nutshell-view of the legal and technological protections available to the musician with regards to placement of music on the Internet.
Unauthorized copying of copyrighted material is not OK. In UMG Recordings v. MP3.com, defendant MP3.com purchased tens of thousands of popular records, the copyrights to which they did not hold, and copied them onto their computer servers so as to replay them later for MP3.com’s subscribers. While these subscribers did have to prove that they already owned legal copies of the CDs by either placing their copies in their own disc drives or by purchasing copies through MP3.com, the court said that “this makes out a presumptive case of infringement under the Copyright Act of 1976.” The court summarized by saying that “although defendant seeks to portray its service as the functional equivalent of storing its subscribers’ CDs, in actuality defendant is re-playing for the subscribers converted versions of the recordings it copied, without authorization, from plaintiffs’ copyrighted CDs.”
Unauthorized copying does not need to be for financial gain to be a violation of the law, thanks to the No Electronic Theft Act (NETA) of 1997. Prior to this act’s passage, criminal penalties were available only if the Internet pirate sought financial gain, not if he exchanged digital files for free. NETA allows the offense to encompass acts of piracy done for “receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.” It also ties the penalty to the aggregate value of the works infringed, not to the infringer’s financial gain. The act’s criminal provisions subject those who willfully copy material worth over $1,000 to fines of up to $100,000 with a possible one-year jail sentence. Fines and imprisonment increase with the amount of material pirated.
The magnitude of piracy, potential and real, on the Internet is astounding. In A&M Recordings v. Napster, defendant Napster, which developed software allowing a huge network of users to exchange digital music files (something that Napster itself referred to as a “viral service”), estimated that its network grew 200% per month, that about 10,000 music files were shared per second, and that 100 users logged onto the system every second. Napster estimated that it would have 75 million users by the end of year 2000. Plaintiff recording companies were granted an injunction (a court order barring defendant’s continued activity) by showing a likelihood of success on their charges of both contributory and vicarious copyright infringement. In other words, the recording companies presented sufficient evidence to persuade the court that Napster users were engaging in copyright infringement, that Napster software has no significant non-infringing uses, that Napster knew of the infringement and contributed to it, that Napster had the right and ability to supervise the infringing activity, and that Napster had a financial stake in that activity.
Technology has created ways to protect music on the Internet and the legal system seeks to prevent the circumvention of those protections. The Digital Millennium Copyright Act (DMCA) of 1998 prohibits circumvention of technological measures used to access copyrighted digital material. It also prohibits circumvention of “protection afforded by a technological measure that effectively protects a right of a copyright owner” As we will see, one of these rights is copying.
There are three basic technologies that can be used to protect music on the Internet. The DMCA would protect against their circumvention. They are the technology of streaming, the digital envelope, and the digital watermark.
Streaming is the technique of transmitting music in real time over the Internet. Of the several companies that have developed streaming technology, probably the industry leader is Seattle’s own RealNetworks. Streaming allows the listener/end user to hear the music but does not allow him to retain a permanent copy on his computer. This allows the artist/broadcaster to get exposure without the risk of piracy. Artists and music industry companies alike feel free to place their music on the Internet via streaming.
The digital watermark is the computer age equivalent to a watermark on stationary—it allows one to see if what one holds is an original or not. It contains information about the author, copyright date, and permitted uses for the material. This does not prevent unauthorized copying. But with the use of search tools called “spiders,” unauthorized duplicates can be tracked down and infringers prosecuted.
The digital envelope controls the access to—and hence the use of—digital material. Usually, to get into the envelope and gain access to the protected material, the consumer must pay a fee. This could be a small fee for a single play, a 24-hour license, or an actual purchase of the CD. This technology uses authentication techniques to guarantee that only the authorized user has access and only under the proper use terms. This technique, in conjunction with the digital watermark, would control access and track down unauthorized copies made while the material was accessible.
The DMCA has been invoked to prevent the sale and production of a device used to circumvent protections for music streamed over the Internet. In RealNetworks v. Streambox, the court barred the further production, pending the trial, of defendant’s “Streambox VCR.” The device was designed to outwit RealNetworks streaming technology by both gaining improper access to the streamed music and by copying that music even though the copyright holder had blocked copying. The court stated that, “Under the DMCA, product developers do not have the right to distribute products that circumvent technological measures that prevent consumers from gaining unauthorized access to or making unauthorized copies of works protected by the Copyright Act.”
For the musician wishing to place their music in a protected form on the Internet, there are both legal and technological protections. Musicians should work with both an attorney who is abreast of the rapid changes in this area of law, and a computer professional who is current on the equally rapid changes in technological protection and circumvention.
Neil Caulkins is a musician and an arts advocate who has volunteered his services for Washington Lawyers for the Arts. He was a third year law student at the University of Washington at the time of writing this article.