MUSIC ON THE INTERNET,
THE UNITED STATES PERSPECTIVE
by
Paul D. Supnik
UIA Congress
Buenos Aires
October 29 - November
2, 2000
9595 Wilshire Boulevard, Suite 201
Beverly Hills, California 90212-2502
Telephone: (310) 859-0100
Facsimile: (310) 859-0177
e-mail: ps@supnik.com
web site: www.supnik.com
MUSIC ON THE INTERNET, THE UNITED
STATES PERSPECTIVE
by
Paul D. Supnik[1]
INTRODUCTION
The application
of law in the United States to music on the Internet is currently based on
various sources of jurisprudence.
Statutory federal copyright law as it has traditionally existed and
recently enacted amendments to the copyright law specifically dealing with
certain limited aspects of the new technology are both applicable. State statutory law, unfair competition
protection and other statutory and common law cases may also apply. A handful of federal cases specifically
dealing with the current issues have now been decided.
The
statutory basis for copyright will be examined first, along with the exclusive
rights provided under the copyright statute, the nature of the violations of
those rights and the impact of new legislation on music and the Internet. A review of recent pending and decided case
law in the United States will be discussed.
In general,
the older law has in some ways, been broad enough to incorporate the issues
arising under when applied to music on the Internet, yet the newer legislation
intended to deal with the digital age has tended to be cumbersome and not
address the issues in a timely or satisfactory manner as applied to music on
the Internet.
The
applicable copyright law includes the most thorough revision of the Copyright
Law in the United States was the Copyright Act of 1976 which became effective
January 1, 1978. Since then, two
amendments are of particular interest, the Digital Performance Rights in Sound
Recordings Act of 1995 (DPRSRA)[2] and the Digital Millennium
Copyright Act (DMCA).[3]
U.S.
Copyright Basics–Statutory Definitions
The
Copyright Act begins with a definition Section 101 containing key definitions
applicable to music on the Internet.
''Copies'' are material objects,
other than phonorecords, in which a work is fixed by any method now known or
later developed, and from which the work can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a machine or device.
The term ''copies'' includes the material object, other
than a phonorecord, in which the work is first fixed.
Thus,
phonorecords are not considered to be "copies" and have their own
definition.
A ''digital transmission'' is a
transmission in whole or in part in a digital or other non‑analog format.
An ''establishment'' is a store,
shop, or any similar place of business open to the general public for the
primary purpose of selling goods or services in which the majority of the gross
square feet of space that is nonresidential is used for that purpose, and in which nondramatic
musical works are performed publicly.
''Phonorecords'' are material
objects in which sounds, other than those accompanying a motion picture or
other audiovisual work, are fixed by any method now known or later developed,
and from which the sounds can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device. The term
''phonorecords'' includes the material object in which the sounds are first
fixed.
To perform or display a work
''publicly'' means ‑
(1) to perform or display it at a
place open to the public or at any place where a substantial number of persons
outside of a normal circle of a family and its social acquaintances is
gathered; or
(2) to transmit or otherwise
communicate a performance or display of the work to a place specified by clause
(1) or to the public, by means of any device or process, whether the members of
the public capable of receiving the performance or display receive it in the
same place or in separate places and at the same time or at different times.
''Sound recordings'' are works that result from the fixation of a series of musical, spoken, or other
sounds, but not including the sounds accompanying a motion picture or other
audiovisual work, regardless of the nature of the material objects, such as
disks, tapes, or other phonorecords, in which they are embodied.
A ''transmission program'' is a body
of material that, as an aggregate, has been produced for the sole purpose of
transmission to the public in sequence and as a unit.
To ''transmit'' a performance or display is to communicate
it by any device or process whereby images or sounds are received beyond the
place from which they are sent.
Copyright
exists both in the musical composition and in sound recordings by way of
Section 102:
Sec. 102. Subject matter of
copyright: In general
(a) Copyright protection subsists, in accordance with this title, in
original works of authorship fixed in any tangible medium of expression, now
known or later developed, from which they can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a machine or device.
Works of authorship include the following categories:
...
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
...
(7) sound recordings; ...
Section 104
of the Copyright Act identifies eligibility for protection to works under
Section 102. Musical works may be
protectable without regard to the nationality or domicile of the author for
unpublished works and similarly for Berne works and works originating in WTO
countries.
The
exclusive rights in copyright as they pertain to music are set out in Section
106 of the Copyright Act:
Sec. 106. Exclusive rights in
copyrighted works
Subject to sections 107 through 120,
the owner of copyright under this title has the exclusive rights to do and to
authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of ... musical [works], ... to perform the copyrighted
work publicly;
(5) in the case of ... musical, ... works, ... to display the
copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work
publicly by means of a digital audio transmission.
In the
course of distribution of music on the Internet, the following potentially
infringing events occur. Reproduction
of copies and of phonorecords may occur at various stages of distribution of
music. Derivative works may or may not
be made. Distribution occurs. And the work may or may not be performed
publicly by a digital audio transmission.
Section 106
of the Copyright Act is limited by a group of sections beginning 107 which
impose various degrees of limitations on the exclusive rights given under
Section 106. The most important
limitation tends to be in many situations a right developed under the common
law and later codified by statute under the 1976 Copyright Act which is the
doctrine of fair use. Fair use permits
what would otherwise be an infringement of copyright be a defense to a claim of
copyright infringement. The doctrine of
fair use is not an easy one to apply.
Places where it is likely to be applicable or asserted in connection
with the Internet is where small portions or clips of music are used, where
they are used on Internet sites which are not entertainment directed and when
the music is not otherwise readily available to the public.
The fair
use doctrine provides:
Sec. 107. Limitations on exclusive
rights: Fair use
Notwithstanding the provisions of
sections 106 ..., the fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research, is not
an infringement of copyright. In determining whether the use made of a work in
any particular case is a fair use the factors to be considered shall include ‑
(1) the purpose and character of the
use, including whether such use is of a commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted
work;
(3) the amount and substantiality of
the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the
potential market for or value of the copyrighted work.
The fact that a work is unpublished
shall not itself bar a finding of fair use if such finding is made upon
consideration of all the above factors.
The
determination as to whether or not something is subject to fair use initially
requires an analysis of the nature of the purpose and for example, if that
purpose is for such purposes as criticism, comment, news reporting, teaching,
scholarship or research. Those are the
types of matters where the doctrine is most readily applicable. An analysis of four factors set out in
Section 107 of the statute must be considered in determining whether or not
fair use exists. First to be considered
is the purpose and character of the use including whether the use is of a
commercial nature or for nonprofit educational purposes.
Second, the
nature of the copyrighted work is considered.
Entertainment copyrighted works tend to be protectable more than fact
based works. The musical work is likely
to have entertainment value, though there may be factors that mitigate against
that approach. The amount of the work
is then considered and the portion used in relationship to the copyrighted work
as a whole is considered.
Finally,
what is often to be considered to be the most important factor, though not
necessarily, is the effect of fair use upon the potential market for or the
value of the copyrighted work.
In addition
to fair use, the Copyright Act provides other specific exemption from
Copyright.
Limited
provisions for use of ephemeral recordings are provided, thus, works which have
been fixed in tangible medium of expression to obtain copyright.
Provisions
regarding sound recordings are made available in Section 114.
The
DPRSRA
The Digital
Performance Rights in Sound Recordings Act of 1995 is probably one of the most
narrow, yet most complex pieces of copyright legislation in the United
States. It attempted at an early stage
of development of the World Wide Web to set forth structure and requirements
for performance rights of digitally transmitted sound recordings. The act actually affects cable services and
online services providers but did not provide eligibility for webcasting as
originally enacted. This was enacted long before MP3 emerged on the radar of
Congress.
The DPRSRA
amends Section 106 of the Copyright Act identifying the exclusive rights of
copyright owners by adding a public performance right in digital audio
transmissions of sound recordings in sound recordings. Section 114 of the Copyright Act then
proceeds to place limitations on the exclusive right granted under Section
106. It specifies that under certain
circumstances, public performance of a digital sound recording is not an
infringement for (1) non-subscription broadcast transmissions. The terms "non-subscription",
"broadcast" and "transmission" are defined terms at the end
of Section 114. A "retransmission"
under certain conditions is also not considered to be an infringement of the
exclusive right under Section 106(6).
A
''broadcast'' transmission is a transmission made by a terrestrial broadcast
station licensed as such by the Federal Communications Commission, such as an
ordinary radio transmission. A
''nonsubscription'' transmission is any transmission that is not a subscription
transmission. A ''subscription''
transmission is a transmission that is controlled and limited to particular recipients,
and for which consideration is required to be paid or otherwise given by or on
behalf of the recipient to receive the transmission or a package of
transmissions including the transmission.
Thus, the concept is similar to subscription television or cable
television, but for music.
Finally,
there are certain other very limited categories under which public performance
of a sound recording is not considered to be an infringement of Section 106(6),
such as if the transmission is incidental to an exempt transmission, or if it
is entirely within a business establishment, if it is a retransmission by a
retransmitter, or if its transmission to a business establishment is for use in
the ordinary course of business, again subject to various conditions.
If the
public performance is not exempt under Section 114, it is possible that the
performance may be subject to a statutory license if certain criteria are
met. The performance must be part of a
non-subscription performance. The
obvious objective here was either to not give extra benefits or minimal license
fees where either payments are made or the person receiving the digital
download is in a position to re-record the musical compositions.
The first
of five basic criteria for a statutory license is that the performance be
non-interactive, thus, for example, the song cannot be performed on
demand. The public performance cannot
exceed the sound recording performance "complement", another defined
term. A complex statutory structure is
set out defining specific types of programs, the order of programs, the time of
programs, whether the programs are archived, the number of times programs are
transmitted, and whether any announcement is given in advance concerning
programs which answer other requirements.
One of the requirements is that the schedule of programming cannot
actually be published. Additional
requirements are set forth concerning encoding display information with the
programs. Limitations are provided in
permitting exclusive licenses of interactive services except for certain
licensors holding copyrights to one thousand or fewer sound recordings.
Provisions
are made for agreements upon royalty rates and license terms and conditions for
the performance of sound recordings. 17
U.S.C. 114(d)(4)(e). In the event that
license agreements are not negotiated, the Library of Congress is then to
convene a Copyright Arbitration Royalty Panel to determine the schedule of
rates and terms which is binding on all copyright owners. That has now occurred and Section 260 of the
Code of Federal Regulations published in May 8, 1998 sets forth the terms and
rates of royalty payments for public performances of sound recordings by
nonexempt subscription digital transmission services. The royalty rates are 6.5% of gross revenues resulting from
residential services in the United States.
A late fee is set out at a rate of 1.5% per month.
Specific
provisions including those discussed here are very complex and a thorough
review of the law and any current updates to it are certainly required before
any attempt to rely either upon this brief summary or even a literal view of a
statute.
Compulsory
licenses are provided for making and distributing of phonorecords. However, the compulsory license does not
exist until such time as the underlying musical work was previously distributed
publicly.
In order to
take advantage of a compulsory license, an initial notice must be filed. A suggested form of the notice is available
on the website of the Copyright Office.[4]
The compulsory license permits a different recording artist, for
example, to make a "cover" of the original phonorecord. The Act provides for making public those who
have filed such notices and they are available on the Copyright Office Website
as well.[5]
COPYRIGHT
DURATION
The
sections of Copyright Law dealing with duration also show the interrelationship
of the copyright laws with other laws enacted by the state or state court
judges. This may have an effect with
the music on the Internet in dealing with older musical compositions and sound
recordings. Essentially, the exclusive
rights in sound recordings under the U.S. Copyright Laws did not come into
existence in the United States until 1972.
It was at this time during which the Phonogram Convention was adopted by
the United States and implementing legislation brought protection for sound
recordings under the wing of the U.S. Copyright Laws. Prior to that period of time, copyright and sound recordings were
protected in the United States essentially by judge made law of unfair
competition. Claims of unfair
competition were asserted at various times for distribution of sound recordings
without permission of the owner of the master recording.
The
Copyright Law of 1978 provided that preemption of the state laws are not
affected as they pertain to sound recording statutes for pre-1972 sound
recordings for a period until 2047, which period was recently extended until
the year 2067 under the Sonny Bono Term Extension Act.
PERFORMERS
RIGHTS
The United
States is not a member of the Rome Convention and thus, it does not have the
full panoply of rights set out in the Rome Convention for performers. In particular there are no performer rights
in sound recordings. Thus, while there
is protection for the owner of a phonogram and the producer, there is no
protection available for the recording artist.
That is not
to say that the recording artist has no protections whatsoever, and in an
effort to attempt in some way to provide certain protection for performers to
conform to TRIPS in the Uruguay Rounds Agreements Act, the United States
enacted the Uruguay Rounds Agreement Act to comply in some manner to the TRIPS
agreements. In doing so, it essentially
provided vast and sweeping rights against bootlegging. Most likely, those laws in at least some
respect significantly apply to music on the Internet. In particular, it is likely that they may apply to distribution
of bootleg music on the Internet.
Section 1101 of the Copyright Act provides:
Sec. 1101. Unauthorized fixation and
trafficking in sound recordings and music videos
(a) Unauthorized Acts. ‑ Anyone who, without the consent of the
performer or performers involved ‑
(1) fixes the sounds or sounds and images of a live
musical
performance in a copy or phonorecord, or reproduces
copies or
phonorecords of such a performance from an unauthorized
fixation,
(2) transmits or otherwise communicates to the public the
sounds or sounds and images of a live musical
performance, or
(3) distributes or offers to
distribute, sells or offers to sell, rents or offers to rent, or traffics in
any copy or phonorecord fixed as described in paragraph (1), regardless of
whether the fixations occurred in the United States, shall be subject to the
remedies provided in sections 502 through 505, to the
same extent as an infringer of copyright.
(b) Definition. ‑ As used in this section, the term ''traffic in''
means transport, transfer, or otherwise dispose of, to another, as
consideration for anything of value, or make or obtain control of with intent
to transport, transfer, or dispose of.
(c) Applicability. ‑ This section shall apply to any act or acts
that occur on or after the date of the enactment of the Uruguay Round
Agreements Act.
(d) State Law Not Preempted. ‑ Nothing in this section may be
construed to annul or limit any rights or remedies under the common law or
statutes of any State.
PERFORMANCE
RIGHTS
Although
there have not been performer's rights as such under United States Copyright
law, that is to be distinguished from "performance rights" which do
form a very significant aspect of Copyright Law in the United States and is
likely to be significant on the Internet.
However, the determination as to what constitutes a performance has not
been clearly defined by any means. It
is probably a performance of a musical composition when there is streaming
audio delivered to a consumer. But is
it a performance of the underlying musical composition when there is a digital
download of a sound recording?
DIGITAL
AUDIO RECORDING ACT
In attempt
to sway the concerns of the record companies over the prospect of consumer
digital recording was assuaged in part by the Digital Audio Recording Act at
the time that digital audio tape and the Sony Mini Disc were on the
horizon. That statute, though, was in
advance of the explosion of the Internet and the World Wide Web and use of
music on the Internet and as worded has very little impact on music on the
Internet. That Act provided for tax
levies on media acknowledging that there would be a certain amount of home
recording that would be simply impractical to police. It also provided that home digital recording of audio sound
recordings would not be considered an infringement of copyright if a single
copy was made.
It further
did something rather unique and different for the United States in that it set
up in the statutory frame work essentially a method for collection in the same
manner that is provided by collection societies for certain groups of
performers. Thus, in a minimal way, it
created certain performer's rights for certain types of activity.
URAA
Following
TRIPS at the Uruguay Rounds, Congress enacted the Uruguay Rounds Agreements Act
which very quickly and without the opportunity for extensive debate or input
from a significant segment of the copyright community, past legislation which
did two primary things.
First, it
established a system for restoration of copyright of works essentially
originating outside of the United States which had fallen into the public
domain in the United States for failure to comply with certain formalities
namely that being the formality of using a copyright notice or for failure to
file renewal certificates of copyright registrations prior to the 1976
Copyright Act. Copyright lasted for a
period of 28 years in an initial term followed by a second term of 28 years
which was established by the filing of a renewal certificate for copyright
registration. The renewal term of
copyright lasted 28 years but was eventually extended 19 years until the actual
passage of the 1978 Act (and more recently for an additional 20 years to life
plus 70 years)
Restoration
of copyright has limited applicability for music on the Internet. Only where works have actually fallen into
the public domain by certain of these acts such as by publication without
notice would there be a significance to Internet in copyright. The one wrinkle relating to restoration is
that for restoration to apply, it only applies to works of foreign (i.e.
outside of the U.S. as very specifically defined by statute) origin. The reason that this may apply to music on
the Internet is the situations under which music actually fell into the public domain. Generally was held that the distribution of
sound recordings was not a basis for music falling into the public domain as it
was not a public distribution of the underlying musical composition to the
general public.
DIGITAL
MILLENNIUM COPYRIGHT ACT[6]
The most
significant legislation which falls far short of really providing a clear legal
structure for what is to come in connection with music on the Internet is a
Digital Millennium Copyright Act, known as the DMCA. That Act was enacted although with the strong support and backing
of certain key interests and lobbyists in the music industry, without the
opportunity for significant comment and analysis by the copyright
community. The DCMA includes a number of
areas unrelated to music, and one even appearingly completely unrelated to
traditional copyright and falling into the design protection arena.
The Act is
divided into five parts, the first four of which may have some relevance to
music on the Internet.
The first
section provides implementation of the WIPO Copyright and Performances and
Phonograms Treaties Implementation Act of 1998. Section 102(b) of the DCMA amends the definitions section of the
copyright law (17 USC §101) and the eligibility of works for copyright
protection. It also expands Section
104A relation to restoration of works of origin outside of the United States to
cover treaty countries. Thus, the
effect on Music on the web would be to slightly broaden the scope of musical
works subject to copyright protection in the United States which are digitally
distributed.
There are
certain anticircumvention provisions prohibiting the making or selling of
devices for circumventing (1) access and (2) copy protection schemes by adding
a Section 1201 et seq. To the Copyright Act.
But there is no requirement that any affirmative action be taken in that
regard. The significance of this is
that any action taken to remove any encapsulated software in a digital
transmission might either violate this section, or simply be a violation of one
of the exclusive rights of copyright in Section 106 of the Copyright Act.
The second
part of the DCMA, Title II deals with safe harbors for online service providers
that post copyrighted material which is potential infringing. The basic concept is that passive online
service providers should not be liable for content posted by others on their
services. Title II is implemented by a
new Section 512 of the Copyright Act.
This is not to be confused with a still different and recently enacted
copyright act, "The Fairness in Musical Licensing Act"[7], which also adds a similarly
numbered but entirely different Section 512 to the Copyright Act. A change in sections is anticipated in due
course. (Perhaps the United States just
can't get used to dealing with codes the way our European counterparts can).
Title II
describes "take down" procedures and eligibility for the safe harbor
limiting infringement liability. The
section has two definition of services providers. The broader definition is a "provider of online services or
network access, or the operator of facilities therefor." The issue as to what constitutes a
"service provided" is currently a key issue in the copyright arena.
The
question applicable here is to what extent is an online service provider liable
for the unauthorized posting of musical compositions or even musical links on
the Internet. Even links which are
pointed to completely unrelated, but infringing links may in some circumstances
be infringing. For example, in a recent
case involving religious teachings of the Mormon church, the church
successfully sued a website owner critical of the Mormon church which had links
directed to a completely unrelated website but which contained copyrighted
material posted without authorization.
Two
criteria determine eligibility for the provision. It must adopt a policy of terminating accounts of subscribers who
are repeat infringers. An publicized
example of the use of this policy is in connection with the requests made by
the group Metallica, against numerous members of the public who were alleged to
have downloaded Metallica MP3 files without authorization. Secondly, it must accommodate and not
interfere with "technical measures" which are used to identify or
protect copyrighted works.
The four
main areas of limitation provided are:
1. Transitory communication, merely acting as a
data conduit, for example where an MP3 file is e-mailed from one subscriber to
another. 17 USC § 512(a).
In order to qualify for this
limitation, the service provider’s activities must meet the following
conditions:
• The
transmission must be initiated by a person other than the provider.
• The
transmission, routing, provision of connections, or copying must be carried out
by an automatic technical process without selection of material by the service
provider.
• The
service provider must not determine the recipients of the material.
• Any
intermediate copies must not ordinarily be accessible to anyone other than
anticipated recipients, and must not be retained for longer than reasonably
necessary.
• The
material must be transmitted with no modification to its content.
2. System caching, such as where a copy of an
MP3 file is kept for archival purposes. 17 USC §512(b).
• The content of the retained material
must not be modified.
• The
provider must comply with rules about “refreshing” material—replacing retained
copies of material with material from the original location— when specified in
accordance with a generally accepted industry standard data communication
protocol.
• The
provider must not interfere with technology that returns “hit” information to
the person who posted the material, where such technology meets certain
requirements.
• The
provider must limit users’ access to the material in accordance with conditions
on access (e.g., password protection) imposed by the person who posted the
material.
• Any
material that was posted without the copyright owner’s authorization must be
removed or blocked promptly once the service provider has been notified that it
has been removed, blocked, or ordered to be removed or blocked, at the
originating site.
3. Information residing on systems or networks,
such as where an MP3 file is maintained on a computer for downloading by
subscribers on request. 17 USC §512(c).
• The
provider must not have the requisite level of knowledge of the infringing
activity, as described below.
• If
the provider has the right and ability to control the infringing activity, it
must not receive a financial benefit directly attributable to the infringing
activity.
• Upon
receiving proper notification of claimed infringement, the provider must
expeditiously take down or block access to the material.
In
addition, a service provider must have filed with the Copyright Office a
designation of an agent to receive notifications of claimed infringement. The
Office provides a suggested form for the purpose of designating an agent[8]
and maintains a list of agents on the Copyright Office website.[9]
4. Location tools, such as search engines,
online directories or linking to unauthorized MP3 websites. 17 USC §512(d).
• The
provider must not have the requisite level of knowledge that the material is
infringing. The knowledge standard is the same as under the limitation for
information residing on systems or networks.
• If
the provider has the right and ability to control the infringing activity, the
provider must not receive a financial benefit directly attributable to the
activity.
• Upon
receiving a notification of claimed infringement, the provider must
expeditiously take down or block access to the material.
The Digital
Millennium Copyright Act[10], in part followed the WIPO
Copyright and Phonogram Treaties. One
of the things that the Act does is protect on-line providers of services. The determination and key issue now is to
determine what a service provider is in the on-line world. Since the term is left undefined, it
includes on-line service providers such as AOL but possibly also others. One of the key features
is that there is a safe harbor for on-line service providers of certain types
of works, particularly relating to infringement if they follow a particular
procedure. The procedure involves
giving notice and identifying and specifying an agent to receive that notice.
Several
provisions were included in Title IV of the Act relating to modifying the
DPRSRA. Streaming audio was not
previously included in the act, and this was added. Webcasting is a new category of eligible of "eligible
nonsubscription transmissions".
One of the aspects of the DMCA was the establishment of a new statutory
license for the public performance of a sound recording. The DMCA did not set a statutory rate but
required that industry on a particular rate.
An
arbitration panel is to convene in the event that industry is unable to
agree. Until such time as a specific
rate is set, the web casters are encouraged to set aside funds for payment of
the royalties which would be retroactive once the rates are actually set. However, the statutory royalty rates are not
for interactive web casting. Rather,
they are for essentially passive web casting such as occurs for web radio and
the like. If for example, an individual
clicks on a link for a specific individual song, that is not likely to be
considered "non interactive" as activity as specified in the DMCA and
therefore, does not qualify for a statutory license.
CURRENT
LITIGATION
Given the
statutory law that exists under the copyright scheme, the state law including
statutory provisions enacted by certain states and the common law enforcement
of unfair competition claims for sound recordings, we now come to the issues as
they are developing on music on the Internet.
The key issue appears to relate to contributory infringement, jurisdictional issues in connection with infringement law suits (which is also applicable to other types of claims involving Internet), when, where and if performances occur when music is either played, streamed or downloaded on the Internet and when, where and if reproductions occur if music is uploaded, downloaded or placed on web site.
The issue
of contributory infringement is highlighted by the cases of Napster, MP3,
Diamond Rio.
The Napster
case involves a company which facilitates the distribution of MP3 music files
on the Internet. Consumers dial up and
download software which allows the Napster servers to index the hard drives of
the users of MP3 files. Napster
essentially provides a searchable database of all users MP3 files for which
computers are at that time connected on the Internet, allowing users to then
seek out and download files from other users who are on the Internet at the
same time. In effect, Napster creates a
temporary link to another computer and stays connected during the downloading
process. Napster is being pursued by
various record companies.
In a motion
for summary judgment, Napster asserted certain Safe Harbor provisions of the
Digital Millennium Copyright Act. The
Court found that the papers submitted by Napster rendered Napster ineligible to
assert those provisions of the DMCA.
The reason was that the files did not pass from the server to the user
but from one user to another user.
Napster claimed eligibility of the safe harbor provisions of section
512(a) of the DCMA. The court found
that it did not "transmitting, routing or providing connections for
material through a system or network controlled or operated by or for the
service provider. A & M Records
v. Napster, Inc., 2000 U.S. Dist. LEXIS 6243 (May 5, 2000).
In the MP3
case, UMG Recordings, Inc. v. MP3, 92 F. Supp. 2d 349 (S.D.N.Y. 2000),
the MP3 web site provides for remote storage of sound recordings. If a user legitimately goes to a record
store and obtains the CD, they can then connect to the MP3 server identifying
that user as a legitimate owner of a CD.
The user is then permitted to go on any computer anywhere in the world
and download or listen to MP3 files.
MP3.com allegedly copied the tracks of some 45,000 commercial websites
onto web servers that operate the My.MP3.com service.[11]
To listen or download digital copies, the user must either order a
commercial copy of the CD from the website or insert a commercial CD (or a
copy, authorized or not of a commercial CD) into the user's computer for
verification. The claim asserted was
that since MP3 had to reproduce the CD on its own server, that constituted
copyright infringement. The use of
infringing reproductions was also considered by plaintiffs to be copyright
infringement. There, the right allegedly infringes the reproduction right. As of the time of this writing, a
settlement with two of the record companies, Warner Bros. and BMG Bertelsman,
have been reached involving the payment of a purported sum of $20M.
In the Diamond
Rio case, Recording Indus. Ass'n of America V. Diamond Multimedia Sys.,
180 F.3d 1072 (1999)[12]
it was held that the Diamond Rio which is essentially a type of digital
audio recording device did not violate the Digital Home Recording Act in not
providing systems for preventing serial copying because Diamond Rio was not a
digital audio recording device of the type as defined by the statute. Section 1001(1) defined a "digital
musical recording" as "a material object (i) in which are fixed in a
digital recording, only sounds and material, statements or instructions incidental
to those fixed sounds, if any..." A hard drive of a computer is a material
object in which one or more programs are fixed since it also may include
various programs completely unrelated to the sound recordings. Therefore, the Rio does not record "directly"
from "digital music recordings"
Under the
statute, a "digital audio recording device" is any machine or device
of a type commonly distributed to individuals for use by individuals, whether
or not included with or as part of some other machine or device, the digital
recording function of which is designed or marketed for the primary purpose of,
and that is capable of, making a digital audio recording for private use. The RIO did not fit within that definition.
[1] Paul D.
Supnik practices copyright, trademark and entertainment law in Beverly Hills,
California. He is a past chair of the
Intellectual Property and Entertainment Law Section of the Los Angeles County
Bar Association and president-elect of the Los Angeles Copyright Society. Further information and references may be
found in his website at www.supnik.com.
[2] http://thomas.loc.gov/cgi‑bin/bdquery/z?d104:SN00227:|TOM:/bss/d104query.html
[3] The Copyright Act may be found on the Internet at http://www.loc.gov/copyright/title17.
[4] http://www.loc.gov/copyright/licensing/format.html
[5] http://www.loc.gov/copyright/licensing/notice/index.html
[6] Significant portions of
this section are adapted from the summary of the Act by the Copyright
Office. The summary may be found at
http://www.loc.gov/copyright/legislation/dmca.pdf.
[7] This act provides that
certain smaller establishments are able to file a petition in a federal court
for if they believe that license fees charged by certain performing rights organizations
(e.g. ASCAP or BMI) are not reasonable.
[10] This may be found at http://www.supnik.com/digmel.htm.