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Guest Post from Sarah Thompson

John Hemming has discussed music performers and digital copyright in the past, and today Sarah Thompson advances the conversation by considering the seminal court cases in the debate over copyright issues in the digital age. You can read more from Sarah at the online resource where she frequently writes, which covers industry topics like how music production careers have evolved in the last two decades.

The Problems Protecting Music Production and Copyright in the Digital Age

Recent changes in technology have made it easier than ever to share and copy content, particularly music. The United State Copyright Act governs all of these transactions, but not comprehensively. Most provisions of the act were framed in a time when digital innovations could never have been imagined. Lawyers and lawmakers have struggled to stretch existing provisions to fit new and growing capabilities, with mixed results. Today’s music copyright landscape is mired in pitfalls, and defined by an ever-growing number of lawsuits. Just as one solution has been reached, it seems another question comes up, like a virtual whack-a-mole of temporary solutions. For both producers and consumers, the copyright complexities of digital music are far-reaching, impacting almost every aspect of sharing, use, and broadcasting.

One of the biggest concerns facing music owners and publishers is the ease with which music can be shared online. It has long been understood that transferring files through peer-to-peer (P2P) file-sharing sites represents both an unfair copying and an illegal distribution. Copyright laws exist to encourage creativity by granting artists and creators exclusive uses to the works they produce. File-sharing fits the definition of illegal copying fairly well. Just the same, though, when the laws were first written, the ease with which files could be reproduced was nowhere near what it is today. This has led to a great deal of controversy with respect both to how violations should be identified, and how they should be punished. A number of recent court decisions have fleshed out various intersections of copyright law and digital music management, but much remains somewhat ambiguous.

Recordings Inc. v. Inc., a 2000 case from the U.S. District Court for the Southern District of New York, held that was in violation of the law by allowing users to listen to
already-owned music over the Internet. “Virtual space-shifting,” the court said, did not fall within the fair use exception, and ran against the spirit of the Copyright Act. This was only the beginning of a great many online music cases. Most in recent years have centered on P2P music sharing. Suits have targeted individual sharers, the manufacturers of share-enabling technology (like CD-R drives), and the owners of share sites.

One of the most seminal P2P cases was 2005’s MGM v. Grokster, in which the Supreme Court determined that the Grokster sharing site was contributorily liable for the infringement of its users, since it “took steps to foster their infringement.” This case did much to define the parameters of file sharing infringement, but neither it nor the string of individual lawsuits that followed (see, e.g., Sony BMG v. Tenenbaum; Capitol v. Thomas) did much in the way of significantly curbing illicit sharing behavior.

Protecting music from being stolen, or “pirated,” online is only one of many woes digital music rights owners face today. How to license and collect royalties for work is a completely separate matter, with a host of complex issues all its own.

Part of the trouble comes from the sheer number of people involved. Traditional copyright law dictates that separate parties are responsible for the copyright to the composition and the actual sound recording. In most cases, the original composers and writers do not hold the copyrights—they have often been assigned to recording companies, record labels, or other third-party participants. Derivative and exclusionary licensing can further complicate things, allowing some uses by some parties without rights of assignation. In the Internet space, licenses are all-important. Using songs in commercials, on video promotions, or in web content, not to mention streaming music over Internet or satellite radio stations, can be very complex. Licenses also apply to digital downloads. When users pay to purchase songs over platforms like iTunes, a portion of the purchase price is paid to the licensee, and a portion to the party with the right to collect royalties.

Shropshire v. Sony Music Entertainment, a licensing case from the Southern District of New York, was settled in 2012 after Sony came to an agreement with musicians that digital downloads should be treated as licensing arrangements rather than sales—which had a big effect on how much the individual artists were able to recoup. Though not binding law, this settlement may indicate a trend in record company thinking moving forward.

Royalties, too, are catching up with the times. Intercollegiate Broadcasting System v. CRB, another 2012 case from the U.S. Court of Appeals for the District of Columbia Circuit, held that the Copyright Royalty Board—a team of three judges that sets royalty rates nationwide—was unconstitutional. The CRB sets royalty rates for all music broadcasted or otherwise disseminated digitally, with funds being paid into an organization known as SoundExchange for disbursal. The court held that the court’s power to set rates represented too big an authority to be constitutionally permissible.

Despite the work of the courts since the digital era began, it is unlikely that case law alone will be able to solve the problems copyright poses to new media, particularly where music is concerned. One of the biggest challenges many musicians and online innovators face is consistency. Even within the United States, different courts and circuits tend to rule slightly differently on common issues. The Supreme Court has only rarely intervened in digital music copyright cases, which has led to something of a patchwork of acceptability. Of course, the problem grows only stronger abroad. Foreign copyright laws and their equivalents differ in both content and enforcement. There are no laws that govern all Internet traffic. Though courts have tried, at times, to retaliate against foreign infringers, the results are far from consistent.

Improvement is likely to come from within, both by adopting a more unified approach to enforcement and by making access to desired musical works more straightforward. “Songwriters, recording artists, and record labels should be fairly paid for their work, and deserve the protections of a well-designed copyright royalty framework. But it’s also important not to lose sight of the public’s interest in having access, under reasonable terms, to copyrighted material,” John Villasenor, a professor at the University of California-Los Angeles, said in a recent article in Forbes. The best solution going forward will address all of these needs, while keeping the limits and possibilities of the digital space, both now and well into the future, in mind.

Sarah asked me to publish this.  It relates primarily to the USA, but is an interesting review of copyright there hence I am happy to have it as a guest post.


Anonymous said…
There are broadly generational differences in attitudes to use/access to digital media (and therefore, generally unthinkingly, copyright). The righteous justifications of freetardism tend to be impervious to reasoned debate.

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