music copyright infringement:
the Music: When digital technology and the law collide
Dr Maria Chetcuti Cauchi. All Rights Reserved.
The music industry
has often claimed that the internet is “a web of piracy” designed to rob it
of its rightful revenues. In recent years, the basis of the music industry has
been challenged by new technologies and the question has often been asked as to
how traditional copyright law can protect music in this digital day and age.
This article addresses some of the major issues facing music in the internet
Crux of the Problem
Music is transmitted on the internet
digitally. Unlike its analogue counterpart (e.g., audio tapes), in each
reproduction, the digital format preserves the original high quality of sound.
Internet music exists in two digital formats: the compression format, such as
WAV or MP3, which is typically downloaded in its entirety before being played by
a user, and the streaming format, whereby a host transmits small “packets”
of information to the user, which the user accesses in real time.
In the last years, the foundations of
the music industry have been threatened by new technologies, most notably
MP3’s. Even though the online
transfer of digital audio files was possible before, it was too cumbersome and
time-consuming. In the MP3 format,
downloads of audio recordings are now much faster and take up much less space on
a hard drive. Now most listeners can use this format to exchange music with one
another. Feeling the pinch, the music industry has been lobbying hard for the
adoption of the US Digital Millennium Copyright Act and the EU Directive on
Copyright and E-commerce. Both pieces of legislation bestow on copyright owners
the entitlement to make use of “technical measures” to protect retrieval and
reproduction of works and make it a criminal offence for anyone to devise means
to circumvent those measures.
Two recent cases demonstrate how the
courts have applied traditional copyright law to music on the internet. In UMG
Recordings, Inc. et al v. MP3.com, Inc. (2000), MP3.com provided a service
whereby users could access a digitised version of a CD they already owned via
internet. This is also known as space-shifting. Ownership of the CD was verified
by making the user insert the CD into the CD-ROM drive of their computer, or by
purchasing the CD online with the MP3.com service. MP3.com claimed it was merely
“storing its subscribers’ CD’s”. Engaging in a fair use analysis, the
Court concluded that all the elements weighed against a finding of fair use and
concluded that the defendant was liable for unauthorized copying. The
Online Service Provider had made copies which were undisputedly for a commercial
A&M Records v. Napster, Inc.
(2000) concerned a service whereby users could share MP3 files. Napster
argued that it was exempt from liability under the US Digital Millennium
Copyright Act which provided a safe harbour for the transmission of files
through an Internet Service Provider in particular circumstances. The court held
that this exemption was inapplicable as the MP3 files were not actually
transmitted through the Napster system as in the case of ISPs. The court
found that Napster users were engaged in direct copyright infringement as the
music file swapping between Napster users was commercial in character and the
use of the Napster programme reduced the sales of CDs and raised the barriers
for record companies’ entry into the online market. This was the necessary
prerequisite to establish contributory or vicarious infringement in Napster. The
defences of fair use and substantial non-infringing use were rejected by the
Court. Napster had knowledge of its users’ infringing activity, had materially
contributed to it and had a direct financial interest.
Companies Launch First ‘Legal’ Music Online
The music industry did not move quickly
enough to develop services of its own. However, on 4th December 2001,
the first internet music service, backed up by leading record companies was
launched, thus giving consumers the chance to download music on to their
computers in a ‘legal’ manner.
The problem is that the system offered
by the music industry leaves much to be desired and is constrained by a number
of shortfalls. If a subscriber allows his membership to lapse, he loses access
to already downloaded music; there can be no CD burning, no sharing, and no
ownership of the songs and there is also a restricted number of hits available.
The challenge seems to lie in persuading users to pay for restricted features
rather than resorting to superior ‘free’ music offered by other distribution
there is still comfort in the knowledge that this is just the music industry’s
first step. Hopefully,
teething problems will be overcome and services will gradually improve and
become more competitive. It is also claimed that such ‘legal’ music is
higher in quality and free from viruses. The forthcoming months will show
whether such move by the music industry was the best move to resolve the problem
of online music copyright infringement.
Dr Maria Chetcuti Cauchi. All Rights Reserved.